Florida Offer of Judgment

March 20, 2013

Reasonable Attorney’s Fees Require Finding of Number of Hours Reasonably Expended

In Delmonico v. Crespo, 37 Fla. L. Weekly D2786b, (Fla 4DCA 20012), the Florida Fourth District Court of Appeal held that it was an abuse of discretion to award attorney’s fees under an Offer of Judgment pursuant to Florida Statute 768.79 when no determination was made as to the number of hours reasonably expended.

Failing to accept an Offer of Judgment when under the circumstances the same should have been accepted results in the award of attorney’s fees against a party as a sanction.

Reasonable Attorney’s Fees

In this case the trial court found that the prevailing party expended between 1800 to 1900 hours and made a specific fee award of $830,250.00. The Fourth District Court of Appeal reversed the trial award of attorney’s fees on the basis that an award of attorney’s fees is erroneous on its face when the court fails to make a specific finding as to an hourly rate and the number of hours reasonably expended.

Taxable Costs – Jury Consultant

The trial court also awarded $25,000.00 in taxable costs out of $75.533.23 sought by the prevailing party. The trial court reasoned that most of the expenses were not taxable because they were routine overhead items including postage, facsimiles, and tolls. However, the trial court did award the $25,000.00 to partially compensate for costs involving a jury consultant and other non-defined expenses. The Fourth District Court of Appeal reversed the cost award in its entirety finding that jury consultant expenses are not taxable costs and neither were any of the consulting expenses which were not testifying experts.

Related Topics: Florida Offer of Judgment; Florida Proposal for Settlement; Florida Taxable Costs; Florida Reasonable Attorney’s Fees

December 12, 2012September 10, 2018

Joint Offer to One Offeree Not Per Se Invalid

In Wolfe v. Culpepper Constructors, 37 Fla. L. Weekly D2708a (Fla. 2DCA 2012), the Florida Second District Court of Appeal, had to determine the validity of a Proposal for Settlement made in case pursuant to Rule 1.442 and Florida Statute 768.79.

Florida Proposal for Settlement

The purpose of a Proposal for Settlement filed in a Florida legal case is to encourage the settlement of disputes that ought to be settled by sanctioning a party that wrongfully refuses to settle the case. Sanctions will be awarded against a party by requiring that party to pay the other party’s legal fees and costs. Determination of whether sanctions will be awarded requires the Court to review the Proposal for Settlement to ensure that it complies with the Florida statute in terms of form, content and the timing of its service. Provided that the Proposal for Settlement is in good form and was property served, the next analysis is merely a calculation. For sanctions to be awarded against a party receiving the Proposal for Settlement, the recovery in the case by that party must be less than seventy-five percent of the amount offered in the Proposal for Settlement.

Florida Contract and Real Estate Dispute

In this particular dispute involving a contractor and two homeowners, the contractor recovered considerably less than seventy-five percent of what the homeowners offered in a Proposal for Settlement filed in the case. The contractor however challenged the form of the Proposal for Settlement claiming that since it was made by two homeowners to him, it was a joint offer which is per se invalid. Joint offers are not permitted for the purpose of a Proposal for Settlement because neither party can separately consider the offer or accept it on their own. In other words, a party making a Proposal for Settlement to two parties in one amount that requires the settlement of the case is per se invalid as neither party can accept the joint offer without the other.

One Offeree is Not a Joint Offer

For this case, the Second District Court of Appeal determined that the joint offer rule does not apply in this instance since the two homeowners made a joint offer to only one party. As such, there was only one person, the contractor, that had to determine whether he wanted to accept the offer and only one person was required to accept. The fact that two parties made the offer does not make that particular joint offer per se invalid.

Related Topics: Florida civil litigation, Florida Contract Law, Florida legal case settlement, Florida Offer of Judgment, Florida Real Esate Law

November 14, 2012

Offer of Judgment Sanction Avoidable Only By Lack of Good Faith

The Second District Court of Appeal, in Braaksma v. Pratt, 37 Fla. L. Weekly D2577a (Fla. 2DCA 2012), had to consider the issue of whether attorney’s fees could be awarded against a Defendant who had not accepted an Offer of Judgment on the basis that the failure to accept the Offer of Judgment did not result in additional delay or costs because the Plaintiff still needed to proceed with a trial regardless if the Offer was accepted or not.

Florida Offer of Judgment

Florida Statute 768.79(1), provides for attorney’s fees when a Plaintiff files an Offer of Judgment that is not accepted and the Plaintiff obtains a judgment that is at least 25 percent greater than the offer. The award of attorney’s fees in this instance is considered a sanction against the party who rejects the offer for unnecessarily prolonging the litigation. The intent of the Offer of Judgment is to promote the resolution of cases that normally should be resolved so as to avoid unnecessary delay and expense. If a Defendant forces a Plaintiff to go all the way in a case to obtain their judgment when the case could have been settled much sooner, the Defendant will be forced to pay all the legal expenses from the time the Offer of Judgment was made.

Lack of Good Faith is the Only Consideration

In this case, the Defendant did not contest that the Plaintiff was entitled to attorney’s fees under the Florida Offer of Judgment statute. Rather, the Defendant argued that the reasonable fees should be $0.00 since the Plaintiff still had to go to a trial for the case regardless if the offer was accepted and thus no additional legal fees or costs were actually incurred. The Plaintiff was required to go to trial because a trial would be needed for an additional Defendant that was not made a similar Offer of Judgment. The trial court agreed with this argument and found that the reasonable attorney’s fees were $0.00 on these grounds. The Second District Court of Appeal reversed the trial court and held that the only discretion for not awarding attorney’s fees under the Florida Offer of Judgment Statute was if there was a finding that the offer was not made in good faith. Factors as to reasonableness have no basis to deny an attorney fee claim that was based on an otherwise valid Offer of Judgment. Since the Offer of Judgment is a creature of statute, the terms of that statute must be strictly construed and enforced. Compliance with the technical requirements of the Florida Offer of Judgment Statute creates a mandatory right to attorney’s fees.

Application to Florida Insurance Claims

Increasingly, Florida insurance companies are being aggressive with their litigation tactics by filing an early Offer of Judgment in the case. This is nothing more than an attempt to intimidate homeowners to give up on their insurance claims. By filing an Offer of Judgment in the insurance claim case, the insurance company is making an implicit and real threat to go after the homeowner for attorney’s fees and costs. Since the Offer of Judgment requires the mandatory award of attorney’s fees. the main analysis must be to determine if the Offer was in good technical form and therafter if it was made in good faith under the circumstances it was made.

Related Topics: Florida Civil Litigation; Florida Homeowner Insurance Claim