Oriental Imports, Inc. v. Alilin, 89-723
| Citation | 559 So.2d 442 |
| Decision Date | 12 April 1990 |
| Docket Number | No. 89-723,89-723 |
| Parties | 15 Fla. L. Weekly D969 ORIENTAL IMPORTS, INC., et al., Appellants, v. Rosario ALILIN and E. Roger Alilin, M.D., her husband, Appellees. |
| Court | Florida District Court of Appeals |
Marybeth McDonald of Rissman, Weisberg, Barrett & Hurt, P.A., Orlando, for appellants.
William H. Ogle of Ledford, Mayfield & Ogle, Ormond Beach, for appellees.
Oriental Imports, Inc., Aubrey Lee Potts, and Tamiko Potts (collectively referred to as Oriental), defendants below, appeal the denial of an award of costs and attorneys fees after receiving a favorable jury verdict in a negligence action. Oriental made two pre-trial offers of judgment, pursuant to Section 768.79, Florida Statutes (1987), which the plaintiffs failed to accept. Oriental requested attorneys fees pursuant to section 768.79 and costs pursuant to section 57.041 of the Florida Statutes. Both requests were denied.
The questions presented are: (1) whether a defendant, who has made an offer of judgment and who has received a favorable jury verdict, may be awarded attorneys fees pursuant to section 768.79; and (2) whether under section 57.041, a judge has discretion to deny recovery of costs to the prevailing party. The answer to both questions is no.
Section 768.79(1)(a) provides:
In any action to which this part applies, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney's fees incurred from the date of filing of the offer if the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney's fees against the award. Where such costs and attorney's fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiff's award.
(Emphasis added). A literal interpretation of the statute indicates its inapplicability when the plaintiff fails to obtain a judgment or award since it describes only the course of action to be taken following a plaintiff's verdict. That interpretation was made in Rabatie v. U.S. Security Insurance Company, 14 F.L.W. 1753 (Fla. 3d DCA July 25, 1989).
Our adoption of the Third District's opinion is based partially upon our belief that the legislature created this statute primarily for the purpose of encouraging the exchange of evaluation of damages among all parties to the action early in the litigation process, thereby stimulating settlements. The award of attorneys fees is an incentive to engage in the exchange process rather than the primary purpose of the statute. The legislature easily could have included language during the enactment process that required an award of attorneys fees when a judgment is entered for a defendant, but the language was omitted. We can envision arguments that support the inclusion of such language in the statute in order to discourage claims with nuisance value rather than substantive value, but consideration of an amendment to the statute is a job for the legislature.
The issue of recovery of costs is resolved by section 57.041 prescribing that "[t]he party recovering...
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W.S.M., Jr. v. Department of Health and Rehabilitative Services
...DCA 1994); Weitzer Oak Park Estate, Ltd. v. Petto, 573 So.2d 990 (Fla. 3d DCA 1991)(prevailing defendants); Oriental Imports, Inc. v. Alilin, 559 So.2d 442 (Fla. 5th DCA 1990)(prevailing defendants); Couch v. Drew, 554 So.2d 1185 (Fla. 1st DCA 1989), approved, Drew v. Couch, 565 So.2d 1354 ......
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Kay v. Katzen
...the prevailing parties below; indeed, the trial court had no discretion to deny the defendants such costs. Oriental Imports, Inc. v. Alilin, 559 So.2d 442, 443 (Fla. 5th DCA 1990). This being so, we reject the plaintiff's primary contention that the defendants were entitled to no costs what......
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Granoff v. Seidle
...Greenacres is entitled to recover its costs."); Arellano v. Bisson, 761 So.2d 365, 366-67 (Fla. 3d DCA 2000); Oriental Imports, Inc. v. Alilin, 559 So.2d 442 (Fla. 5th DCA 1990); Dragstrem v. Butts, 370 So.2d 416, 417 (Fla. 1st DCA 1979); see also Jones v. ETS of New Orleans, Inc., 793 So.2......
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Coconut Key Homeowner's Ass'n, Inc. v. Gonzalez, s. 4D17–739 & 17–1749
...has no discretion to deny costs under this statute—the prevailing party must be awarded their costs. See Oriental Imps., Inc. v. Alilin , 559 So.2d 442, 443 (Fla. 5th DCA 1990) (holding that under section 57.041, a judge does not have discretion to deny recovery of costs to a prevailing par......