Rosado v. Bieluch

• Decision Date: 16 October 2002
• Docket Number: No. 4D02-521.,4D02-521.
• Citation: 827 So.2d 1115
• Parties: Orlando ROSADO, Rafael Rosado and Caribair, S.A., Appellants, v. Edward W. BIELUCH, in his official capacity as Sheriff of Palm Beach County, Florida, Appellee.
• Court: Florida District Court of Appeals

827 So.2d 1115

Orlando ROSADO, Rafael Rosado and Caribair, S.A., Appellants, v. Edward W. BIELUCH, in his official capacity as Sheriff of Palm Beach County, Florida, Appellee.

No. 4D02-521.

District Court of Appeal of Florida, Fourth District.

October 16, 2002.

William J. Brown, Richard Hyland and Shannon del Prado of William J. Brown, P.A., Miami, for appellant. Fred H. Gelston of Fred H. Gelston, P.A., West Palm Beach, for appellee.

ON MOTION FOR CLARIFICATION

DELL, JOHN W., Senior Judge.

We grant appellant's motion for clarification. We withdraw the opinion issued August 21, 2002 and issue the following opinion in its place.

Orlando Rosado, Rafael Rosado, and Caribair, S.A., (collectively "appellants"), appeal from an order denying their claim for attorney fees against Edward Bieluch, in his official capacity as Sheriff of Palm Beach County ("Sheriff").

On January 12, 2001, the Sheriff seized $633,995 in U.S. currency from appellant Orlando Rosado. The Sheriff then filed a Complaint of Forfeiture against Rosado pursuant to the Florida Contraband Forfeiture Act. See §§ 932.701-.707, Fla. Stat. (2001). In his Answer, Rosado denied that the currency was contraband and prayed for return of the money and damages as provided by law. Appellants Rafael Rosado and Caribair also filed answers asserting that they had an interest in the seized money.¹ Appellants next filed a Proposal for Settlement pursuant to section 768.79, Florida Statutes (2001), the offer of judgment statute, for an amount of $25,000 to be retained by the Sheriff. The Sheriff through silence rejected the offer and proceeded to trial. The jury rendered a verdict in appellants' favor.

Appellants filed a Motion for Judgment for Damages against the Sheriff pursuant to section 932.704(9) of the forfeiture act.² The trial court granted the motion, awarding Orlando Rosado $2,116.50, Caribair $19,239.00, and Orlando Rosado and Rafael Rosado jointly $6,649.50. Appellants next filed an omnibus motion requesting attorneys' fees from the Sheriff pursuant to section 932.704(10) of the forfeiture act. The trial court denied the motion finding no bad faith, gross abuse of discretion, or lack of any factual basis. Appellants then filed a motion for an award of attorney's fees against the Sheriff in his official capacity pursuant to the offer of judgment statute. The trial court denied the motion, ruling that the offer of judgment statute applies only to civil actions for damages and the forfeiture action did not fall within that scope.

Appellants contend that the trial court erred when it denied their motion for attorney's fees because the offer of judgment statute applies under the forfeiture act; their claim under the forfeiture act is an element of a replevin action to which the offer of judgment statute applies; and the policy encouraging parties to investigate and settle would be advanced by applying the offer of judgment statute to forfeiture actions. We affirm.

The offer of judgment statute provides,

In any civil action for damages filed in the courts of this state, 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 by her or him or on the defendant's behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or 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.

§ 768.79(1), Fla. Stat. (2001). The question of law to be reviewed de novo is whether a forfeiture action is a "civil action for damages" falling within the section's scope. Compare Beyel Bros. Crane & Rigging Co. of S. Fla., Inc. v. Ace Transp., Inc., 664 So.2d 62, 64 (Fla. 4th DCA 1995)("The right to damages [pursuant to the offer of judgment statute] may arise under tort law; it may arise under contract law; it may arise under property law.").

Forfeiture actions are civil proceedings. See Wille v. Karrh, 423 So.2d 963 (Fla. 4th DCA 1982); § 932.704(2), Fla. Stat. (2001) ("In each judicial circuit, all civil forfeiture cases shall be heard before a circuit court judge of the civil division ... [and][t]he Florida Rules of Civil Procedure shall govern...."). However, forfeiture actions are also in rem proceedings. United States v. Ursery, 518 U.S. 267, 274-75, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996)(forfeiture proceedings are in rem because it is the property which is proceeded against and, "`by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient'"); In re Forfeiture of Fifty Five Thousand Forty-Five Dollars in U.S. Currency, 809 So.2d 105, 106 (Fla. 2d DCA 2002) ("The forfeiture proceeding is a civil, in rem action filed against the property itself."). As an in rem proceeding, a forfeiture action is not a "civil action for damages." See Black's Law Dictionary 793 (6th ed.1990) (explaining that the purpose of an in rem proceeding "is to determine title to or to affect interests in specific property").

We reject appellants' argument that section 932.704(9) of the forfeiture act, requiring the seizing agency to pay to the claimant the reasonable loss of value and income of the seized property when the claimant prevails at trial, converts a forfeiture proceeding into a civil action for damages. This provision is collateral, mandatory, and need not be asserted in a pleading. It is not an action for damages or even analogous to such an action.

In Miller v. Hayman, 766 So.2d 1116, 1117 (Fla. 4th DCA 2000), this court made it clear that the offer of judgment statute is limited to actions for damages and refused to extend its application to a will revocation proceeding. "The offer of judgment statute, section 768.79, Florida Statutes (1997), is limited to actions `for damages,' and accordingly, notwithstanding appellees' argument that this case was `at all times, about money,' the offer of judgment under this statue was...