June 8, 2016
Case Law Update on Proposals for Settlement
The Fourth District Court of Appeals recently issued a ruling invalidating proposals for settlement based upon a technicality. While seemingly minor, the proposals failed to state, as required by Rule 1.442(c)(2)(F), Fla. R. Civ. P. that, “attorney’s fees are part of the legal claim.”
The proposal language stated, “This proposal for settlement is inclusive of all attorney’s fees and costs incurred by Plaintiff or Defendant,” as sufficient to comply with the requirements of rule 1.442. Deer Valley Realty, Inc. v. SB Hotel Associates, LLC, 2016 WL 1660619, *1, — So. 3d — (Fla. 4th DCA Apr. 27, 2016).
Rule 1.442(c)(2)(F), Fla. R. Civ. P. states the proposal shall “state whether the proposal includes attorneys’ fees and whether attorneys’ fee are part of the legal claim.” The Fourth DCA determined the proposals only satisfied half of the rule’s requirements. Accordingly, a proposal must expressly state “attorney’s fees are part of the legal claim,” in addition to stating whether the proposal/offer is inclusive of attorney’s fees, if fees are pleaded in the complaint, or demanded at any time during the litigation,. Citing Florida Supreme Court case, Diamond Aircraft Indus., Inc. v. Horowitch, the Fourth DCA strictly construed section 768.79 and rule 1.442 as existing in derogation of common law to reach its decision.
For litigants the takeaway is this: Proposals for settlement must, at a minimum, meet all of the technical requirements of both §768.79, Fla. Stat. and Rule 1.442 Fla. R. Civ. P. in order to be valid, and proposals will be strictly scrutinized for compliance. Prior to filing a proposal make sure to review the full text of both the rule and statute, as if you do not meet these technical requirements it is unlikely a court will uphold your proposal.