Supreme Court of Florida
____________
No. SC16-1164
____________
W. RILEY ALLEN,
Petitioner,
vs.
JAIRO RAFAEL NUNEZ, et al.,
Respondents.
October 4, 2018
LEWIS, J.
W. Riley Allen seeks review of the decision of the Fifth District Court of
Appeal in Nunez v. Allen, 194 So. 3d 554 (Fla. 5th DCA 2016), on the basis that it
expressly and directly conflicts with several appellate decisions of courts of this
State regarding proposals for settlement, pursuant to section 768.79, Florida
Statutes (2017), and Florida Rule of Civil Procedure 1.442, for the purpose of
assessing attorney’s fees. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.
FACTUAL AND PROCEDURAL BACKGROUND
This case originates from a motor vehicle accident in which Gabriel Nunez
was operating a vehicle owned by his father, Jairo Nunez,1 when he struck a truck
owned by Allen, which was lawfully parked along a street and unoccupied. Id.
Allen filed a one-count complaint against Gabriel and Jairo alleging that Gabriel
negligently operated the vehicle and that Jairo, as the owner of the vehicle, was
vicariously liable for his son’s negligent driving. Id. Allen sought damages for,
among other things, the post-repair diminution in the value of his truck, the cost of
the repairs, and the loss of use of his truck. Id. Respondents jointly answered the
complaint. Id. Allen then served a separate proposal for settlement on each
Respondent pursuant to Florida Rule of Civil Procedure 1.442. Id.
The proposal to Jairo provided:
1. This Proposal for Settlement is made pursuant to Florida Statute §
768.79, and is extended in accordance with the provisions of Rule
1.442, Fla. R. Civ. P.
2. The Proposal for Settlement is made on behalf of Plaintiff, W.
RILEY ALLEN, and is made to Defendant, JAIRO RAFAEL
NUNEZ.
3. This Proposal for Settlement is made for the purpose of settling any
and all claims made in this cause by Plaintiff, W. RILEY ALLEN,
against defendant, JAIRO RAFAEL NUNEZ.
1. Hereinafter, Gabriel and Jairo Nunez may be referred to collectively as
Respondents or individually according to their first names.
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4. That in exchange for TWENTY THOUSAND AND 00/100
DOLLARS ($20,000.00) in hand paid from defendant, JAIRO
RAFAEL NUNEZ, Plaintiff agrees to settle any and all claims
asserted against Defendant as identified in Case Number 2010–CA–
25627–0, brought in and for the Circuit Court in and for Orange
County, Florida.
5. This Proposal for Settlement is inclusive of all damages claimed by
Plaintiff, W. RILEY ALLEN, including all claims for interest, costs,
and expenses and any claims for attorney’s fees.
Id. at 556 (footnote omitted). Allen contemporaneously served an identical
proposal for settlement on Gabriel, except that Gabriel’s name was substituted in
place of Jairo. Id. Neither Respondent accepted his respective proposal; thus the
proposals were considered rejected. Id.; see also Fla. R. Civ. P. 1.442(f)(1) (“A
proposal shall be deemed rejected unless accepted by delivery of a written notice
of acceptance within 30 days after service of the proposal.”).
After securing a final judgment in the sum of $29,785.97, Allen filed a
motion for attorney’s fees pursuant to section 768.79, Florida Statutes, and Florida
Rule of Civil Procedure 1.442. Nunez, 194 So. 3d. at 556. Respondents moved to
strike Allen’s proposals for settlement, contending that because paragraph 5 of the
proposals stated that the monetary settlement was inclusive of all damages claimed
by Allen, the proposals were ambiguous as to whether acceptance and payment of
one of the $20,000 proposals for settlement would have resolved the case against
both Respondents or only against the individual Respondent accepting the
proposal. Id. at 557.
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The trial court granted Allen’s motion to enforce the proposals after finding
the proposals for settlement were sufficiently clear and unambiguous; it was
determined that Allen was entitled to be reimbursed $343,590 in attorney’s fees
and legal assistant’s fees. Id. at 555, 557. Respondents appealed, asserting that the
language contained in paragraph 5 of the proposals for settlement caused the
proposals to be ambiguous and therefore unenforceable. Id. The Fifth District
agreed, reasoning:
Initially, paragraphs two, three, and four in each proposal for
settlement make clear that payment of $20,000 by the [Respondent]
named in the proposal would settle [Allen]’s claims brought in the
case against that specific [Respondent]. However, paragraph five then
stated that the proposal for settlement was inclusive of “all damages”
claimed by [Allen]. As “all damages” claimed arguably are those that
could have been (and were) imposed on both [Respondents] in this
case, paragraph five of [Allen]’s proposal for settlement could be
reasonably interpreted to mean that the acceptance of the proposal for
settlement by only one of the [Respondents] resolved [Allen]’s entire
claim against both [Respondents]. Put differently, if paragraph five
had stated that the proposal was inclusive of all damages claimed by
[Allen] against the individually named [Respondent], similar to the
language in paragraph three of the proposal, there would have been no
ambiguity.
Id. at 558 (emphasis omitted).
The district court relied on Tran v. Anvil Iron Works, Inc., 110 So. 3d 923
(Fla. 2d DCA 2013), for support. Nunez, 194 So. 3d at 558. In Tran, the plaintiff
was injured in an automobile accident and filed an action against the driver of the
other vehicle and his corporate employer, which owned the vehicle. Tran, 110 So.
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3d at 924. During litigation, plaintiff tendered separate proposals for settlement to
the individual defendant and the corporate defendant. Id. Each proposal was
specific as to the one defendant named therein and each stated that, as a condition
of the proposal, the plaintiff would voluntarily dismiss, with prejudice, any and all
claims against the specific defendant named in the proposal for settlement. Id.
Attached to the proposal for settlement was a copy of the proposed notice of
voluntary dismissal with prejudice to be filed if the proposal was accepted. Id.
However, the attached dismissal notice named both defendants and indicated that
the case would be dismissed against both defendants. Id. at 924-25. The Second
District Court of Appeal affirmed the trial court’s finding that the proposals for
settlement were ambiguous because, while the body of the proposals did not
indicate that both defendants would be dismissed, the notices of dismissal attached
to the respective proposals did. Id. at 927. The district court held that the
discrepancy could reasonably affect the decision to accept the proposal because
one defendant might want to accept the proposal directed to it only if it knows for
certain that its payment would result in the release of both defendants. Id. at 926
(“This may be especially significant in a case such as this where one defendant is
the employer/owner of the car and the other defendant is the employee who was
driving the car.”).
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Likewise, the decision below held that the language in the proposals
themselves raised the legitimate question as to whether acceptance resolved
Allen’s claim for “all damages” against solely the named offeree or resolved the
entire claim against both Respondents. See Nunez, 194 So. 3d at 559.
This review follows.
ANALYSIS
Attorney’s fees under offers of judgment are governed by section 768.79,
Florida Statutes, and Florida Rule of Civil Procedure 1.442. In relevant part,
section 768.79 reads:
(1) In any civil action for damages filed in the courts of this
state . . . [i]f a plaintiff files a demand for judgment which is not
accepted by the defendant within 30 days and the plaintiff recovers a
judgment in an amount at least 25 percent greater than the offer, she
or he shall be entitled to recover reasonable costs and attorney’s fees
incurred from the date of filing of the demand. . . .
(2) The making of an offer of settlement which is not accepted
does not preclude the making of a subsequent offer. An offer must:
(a) Be in writing and state that it is being made pursuant to this
section.
(b) Name the party making it and the party to whom it is being
made.
(c) State with particularity the amount offered to settle a claim
for punitive damages, if any.
(d) State its total amount.
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The offer shall be construed as including all damages which may be
awarded in a final judgment.
....
(6) Upon motion made by the offeror within 30 days after the
entry of judgment or after voluntary dismissal or involuntary
dismissal, the court shall determine the following:
....
(b) If a plaintiff serves an offer which is not accepted by the
defendant, and if the judgment obtained by the plaintiff is at least 25
percent more than the amount of the offer, the plaintiff shall be
awarded reasonable costs, including investigative expenses, and
attorney’s fees, calculated in accordance with the guidelines
promulgated by the Supreme Court, incurred from the date the offer
was served.
§ 768.79, Fla. Stat. The relevant portions of the current version of rule 1.442
provide:
(c) Form and Content of Proposal for Settlement.
(1) A proposal shall be in writing and shall identify the
applicable Florida law under which it is being made.
(2) A proposal shall:
(A) name the party or parties making the proposal and the party
or parties to whom the proposal is being made;
(B) state that the proposal resolves all damages that would
otherwise be awarded in a final judgment in the action in which the
proposal is served, subject to subdivision (F);
(C) state with particularity any relevant conditions;
(D) state the total amount of the proposal and state with
particularity all nonmonetary terms of the proposal;
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(E) state with particularity the amount proposed to settle a
claim for punitive damages, if any;
(F) state whether the proposal includes attorneys’ fees and
whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service in the form required by rule
1.080.
(3) A proposal may be made by or to any party or parties and
by or to any combinations of parties properly identified in the
proposal. A joint proposal shall state the amount and terms
attributable to each party.
(4) Notwithstanding subdivision (c)(3), when a party is alleged
to be solely vicariously, constructively, derivatively, or technically
liable, whether by operation of law or by contract, a joint proposal
made by or served on such a party need not state the apportionment or
contribution as to that party. Acceptance by any party shall be
without prejudice to the rights of contribution or indemnity.
Fla. R. Civ. P. 1.442(c). Proposals under the offer of judgment statute must strictly
conform to these statutory and procedural requirements to entitle the offeror to
attorney’s fees because the statute is in derogation of the common law that
ordinarily requires each party to pay for its own attorney’s fees. See, e.g., Pratt v.
Weiss, 161 So. 3d 1268, 1271 (Fla. 2015) (citing Willis Shaw Express, Inc. v.
Hilyer Sod, 849 So. 2d 276, 278 (Fla. 2003); Gershuny v. Martin McFall
Messenger Anesthesia Prof’l Ass’n, 539 So. 2d 1131, 1132 (Fla. 1989)). This
Court reviews a party’s entitlement to attorney’s fees pursuant to section 768.79
and rule 1.442 de novo. E.g., Pratt, 161 So. 3d at 1271 (citing Frosti v. Creel, 979
So. 2d 912, 915 (Fla. 2008)).
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Additionally, the proposal must be sufficiently clear and free of ambiguity to
allow the offeree the opportunity to fully consider the proposal. State Farm Mut.
Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). Nonetheless, this
Court has not required the elimination of every ambiguity—only reasonable
ambiguities:
We recognize that, given the nature of language, it may be impossible
to eliminate all ambiguity. The rule does not demand the impossible.
It merely requires that the settlement proposal be sufficiently clear and
definite to allow the offeree to make an informed decision without
needing clarification. If ambiguity within the proposal could
reasonably affect the offeree’s decision, the proposal will not satisfy
the particularity requirement [of rule 1.442(c)(2)(C)-(D)].
Id. Ultimately, “[p]roposals for settlement are intended to end judicial labor, not
create more.” Id. (quoting Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA
2002)). Accordingly, courts are discouraged from “nitpicking” proposals for
settlement to search for ambiguity. Carey-All Transp., Inc. v. Newby, 989 So. 2d
1201, 1206 (Fla. 2d DCA 2008) (citing Nichols, 932 So. 2d at 1079).
This Court recently rejected an argument that a nearly identical settlement
proposal was ambiguous and therefore unenforceable on the matter of attorney’s
fees. Anderson v. Hilton Hotels Corp., 202 So. 3d 846 (Fla. 2016). Anderson
involved an armed robbery, carjacking, and shooting that occurred in the parking
lot of an Embassy Suites hotel in Orlando, Florida. Id. at 848. Troy Anderson
filed an action against Hilton Hotels Corporation (Hilton), W2007 Equity Inns
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Realty, LLC (W2007), Interstate Management Company, LLC (Interstate), and
SecurAmerica, LLC, for negligence. Id. Anderson’s wife, Paula Anderson, also
sought damages for loss of consortium. Id. at 849. Anderson proposed offers of
settlement to Hilton, W2007, Interstate, and SecurAmerica. Id. The offer made to
Hilton, it its entirety, stated:
PROPOSAL FOR SETTLEMENT ON BEHALF OF PLAINTIFF,
TROY [ANDERSON], PURSUANT TO RULE 1.442
Plaintiff, TROY ANDERSON, by and through his undersigned
attorneys, hereby serves his Proposal for Settlement, pursuant to Rule
1.442 of the Florida Rules of Civil Procedure, to Defendant, HILTON
HOTELS CORPORATION, a foreign corporation, doing business as
EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE
AND JAMAICAN COURT, also doing business as HILTON
WORLDWIDE, and states in support thereof as follows:
1. This Proposal for Settlement is made pursuant to Florida Statute §
768.79, and is extended in accordance with the provisions of Rule
1.442. Fla. R. Civ. P.
2. This Proposal for Settlement is made on behalf of Plaintiff, TROY
ANDERSON (“PLAINTIFF”), and is made to Defendant, HILTON
HOTELS CORPORATION, a foreign corporation, doing business as
EMBASSY SUITES ORLANDO AT INTERNATIONAL DRIVE
AND JAMAICAN COURT, also doing business as HILTON
WORLDWIDE (“HILTON”).
3. This Proposal for Settlement is made for the purpose of settling any
and all claims made in this cause by PLAINTIFF against HILTON.
4. That in exchange for SIX HUNDRED FIFTY THOUSAND AND
00/100 DOLLARS ($650,000.00) in hand paid from HILTON,
PLAINTIFF agrees to settle any and all claims asserted against
HILTON, as identified in Case Number 2009–CA–040473–O,
brought in the Circuit Court in and for Orange County, Florida.
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5. This Proposal for Settlement is inclusive of all damages claimed by
PLAINTIFF, including all claims for interest, costs, and expenses and
any claims for attorney’s fees.
Id. The offers to each defendant were identical other than the specifically
designated party and the specific amount proposed. Id. Paula Anderson also made
separate offers, identical to those of Anderson, to each of the defendants. Id. Prior
to trial, however, Paula dismissed her cause of action. Id. Anderson obtained a
favorable jury verdict that was twenty-five percent greater than the settlement offer
and subsequently sought attorney’s fees. See id. at 850, 857-58. The trial court
and the Fifth District both concluded that the term “PLAINTIFF” in paragraph 5 of
Anderson’s offer could reasonably be interpreted to include both Anderson and his
wife, Paula. Id. at 850-51.
On appeal, this Court acknowledged that the proposal clearly and
consistently used the singular term “PLAINTIFF,” defined as Troy Anderson in
paragraph 2. Id. at 855. This Court also recognized that paragraph 3 indicated that
each proposal was designed to settle “any and all claims of PLAINTIFF [Troy
Anderson] against [RESPONDENT],” clearly delineating that the only parties to
be affected by acceptance would be Troy Anderson and the designated
Respondent. Id. This Court further noted that the offer made by Troy Anderson
made no reference to Paula Anderson or her loss of consortium claim, “which
Anderson was not obliged to address in his claim.” Id. Paula Anderson had made
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her own separate, nearly simultaneous offers to each of the Respondents. Id. This
Court then held that
[i]f a party receives two simultaneous offers from two separate
parties, common sense dictates that the offeree should possess all the
information necessary to determine whether to settle with one or both
of the offerors. In reading the entirety of Anderson’s proposals, the
only reasonable interpretation is that Troy Anderson offered to settle
only his claims with each Respondent in his offer.
Id. (emphasis omitted) (citation omitted). Thus this Court quashed the Fifth
District’s holding that Anderson’s proposals for settlement were ambiguous. Id. at
858.
The Second District has also rejected arguments that similar settlement
proposals were ambiguous and therefore unenforceable on the matter of attorney’s
fees. See Miley v. Nash, 171 So. 3d 145 (Fla. 2d DCA 2015); Bright House
Networks, LLC v. Cassidy, 242 So. 3d 456 (Fla. 2d DCA 2018).
Miley involved an accident between Martha Nash and Kyle Miley in a car
owned by his father, Glenn Miley. 171 So. 3d at 147. Martha filed a complaint
against Kyle and Glenn seeking damages for her injuries; Garfield Nash, Martha’s
husband, also sought damages for loss of consortium. Id. Martha and Garfield
Nash pursued their claims against Glenn Miley solely under a theory of vicarious
liability. Id. Prior to trial, Kyle offered a settlement proposal to Martha in “an
attempt to resolve all claims and causes of action resulting from the incident or
accident giving rise to this lawsuit brought by Plaintiff Martha Nash against
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Defendant Kyle Miley.” Id. The proposal contained a condition that Martha
dismiss her claims against both Kyle and Glenn, but did not address Garfield
Nash’s pending claim for loss of consortium, which was ultimately dropped prior
to trial. Id. After Martha obtained a favorable jury verdict that was significantly
less than the amount in Kyle’s offer, the trial court denied Kyle’s motion for
attorney’s fees for five reasons: the proposal (1) failed to specifically identify the
claims to be resolved by it; (2) failed to address Garfield Nash’s loss of consortium
claim; (3) failed to state with particularity any relevant conditions; (4) failed to
state the amount and terms attributable to each party; and (5) required dismissal of
both Kyle and Glenn without attributing the payment owed. Id.
On appeal, the Second District reversed and concluded that the proposal
complied with rule 1.442. Id. Although the district court acknowledged that the
language in the terms “all claims” that “[gave] rise to the lawsuit” could have been
more definite, it concluded that these terms were not so ambiguous as to prevent
Martha Nash from making an informed decision about settling her claim. Id. at
148. The district court also held that the proposal did not need to address Garfield
Nash’s claim for loss of consortium, which was a separate and derivative claim.
Id. at 148-49 (“Because the proposal explicitly stated that it was to cover all claims
brought by Martha Nash, it was not deficient for failing to address the other
pending claim in the lawsuit brought by an entirely different plaintiff.”). The
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district court also concluded that the particularity requirement had been satisfied
and further held that apportionment with respect to Glenn Miley was not required
because he was only alleged to be vicariously liable. Id. at 149 (citing Fla. R. Civ.
P. 1.442). Thus the Second District reversed the trial court’s order denying
attorney’s fees. Id. at 150.
In Cassidy, five members of the Cassidy family filed a one-count complaint
for breach of contract against Bright House. 242 So. 3d 458. Bright House served
one proposal for settlement on Albert B. Cassidy, who did not accept the proposal.
Id. Bright House filed a motion for attorney’s fees and costs after the trial court
entered summary judgment in its favor. Id. The trial court denied Bright House’s
motion because paragraph 4 of the proposal stated that acceptance of the offer
would dismiss “all claims” against Bright House. Id. The trial court found that
paragraph 4 created ambiguity with regard to which claims were to be dismissed.
Id. The Second District reversed, holding that the proposal did not contain a level
of ambiguity that would “render Albert B. Cassidy unable to make an informed
decision without needing clarification.” Id. at 460.
Albert B. Cassidy has no authority to cause the other plaintiffs’ claims
to be dismissed. It is clear that the Proposal was made only to Albert
B. Cassidy and that the Proposal defines the claims to be resolved as
those asserted in this action by Offeree (Albert B. Cassidy) against
Offeror (Bright House).
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Id. The district court held that, when read as a whole, there was no ambiguity
within the proposal that would reasonably affect Albert B. Cassidy’s decision. Id.
Thus the district court reversed the trial court’s order denying attorney’s fees. Id.
The Fourth District Court of Appeal has likewise rejected similar attempts to
inject ambiguity into otherwise sufficient proposals. See Kiefer v. Sunset Beach
Invs., LLC, 207 So. 3d 1008 (Fla. 4th DCA 2017); Costco Wholesale Corp. v.
Llanio-Gonzalez, 213 So. 3d 944 (Fla. 4th DCA 2017); Alamo Fin., L.P. v. Mazoff,
112 So. 3d 626 (Fla. 4th DCA 2013); Land & Sea Petroleum, Inc. v. Bus.
Specialists, Inc., 53 So. 3d 348 (Fla. 4th DCA 2011).
In Kiefer, Sunset Beach Investments, LLC (Sunset Beach), filed an action
asserting claims of professional negligence against Kiefer, Kimley-Horn, and two
licensed engineers. 207 So. 3d at 1009. While the case was pending, Kiefer
served Sunset Beach a proposal for settlement that included a required release as a
condition of the agreement. Id. Simultaneously, each of the other codefendants
served separate proposals for settlement on Sunset Beach. Id. Sunset Beach did
not accept any of the proposals. Id. Kiefer prevailed on a motion for summary
judgment, obtained judgment in his favor as to the only claim asserted against him,
and subsequently filed a motion for attorney’s fees based upon the rejected
proposal for settlement. Id. at 1009-10. The trial court denied Kiefer’s motion
after finding the release attached to the proposal for settlement to be ambiguous.
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Id. at 1010. The trial court found ambiguity with the fact that, unlike each of the
other paragraphs of the proposal for settlement and release, the fifth and sixth
paragraphs of the release were not specifically limited to Kiefer and Sunset Beach.
Id. The fifth paragraph in question stated that the release covered “any and all
claims for attorney’s fees, costs and premiums, as a result of the incident and
matters set forth in the lawsuit.” Id. The sixth paragraph stated that Sunset Beach
would release all claims that related to the lawsuit. Id. On appeal, the Fourth
District reversed and held that the settlement proposal was unambiguous. Id. at
1011. The district court held that, when read as a whole, the release related to
Sunset Beach and Kiefer and not the other codefendants. Id. The district court
relied on Anderson in holding the proposal for settlement was not ambiguous due
to the fact that other claims remained and other parties were not mentioned. Id. at
1012. Thus the Fourth District reversed the trial court’s order denying attorney’s
fees. Id.
In Llanio-Gonzalez, Costco Wholesale Corporation (Costco) served a
proposal for settlement on Elaine Llanio-Gonzalez, who brought an action for her
injuries in a slip and fall. 213 So. 3d at 945. Costco also served a proposal for
settlement on Luis Gonzalez for his loss of consortium claim. Id. Each proposal
included a required release as a condition of the agreement. Id. The attached
releases provided that each plaintiff would release Costco and “all related,
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associated or affiliated companies” from any and all claims. Id. The plaintiffs did
not accept Costco’s proposals for settlement and Costco ultimately prevailed on a
motion for summary judgment. Id. at 946. Costco then moved for attorney’s fees
after obtaining judgment in its favor. Id. The trial court denied Costco’s motion
after finding the releases attached to the proposals for settlement to be ambiguous.
Id. The trial court found ambiguity with the fact that each proposal for settlement
contained narrow language offering to release only the defendant but the attached
releases contained broader language releasing individuals and entities in addition
to Costco. Id. On appeal, the Fourth District agreed with Costco that the proposals
were unambiguous and were therefore enforceable. Id. at 947. The district court
held that although the attached releases were more expansive, their effect was the
same. Id. The district court held that the proposals for settlement and
accompanying releases were sufficiently clear and definite to allow the plaintiffs to
make an informed decision on whether to accept the proposals. Id. Thus the
Fourth District reversed the trial court’s order denying attorney’s fees. Id.
Alamo Financing involved a motor vehicle accident between plaintiff,
Matthew Mazoff, and defendant, Paola Alvarado-Fernandez; Alamo Financing
owned the vehicle driven by Alvarado-Fernandez, while a separate entity, Alamo
Rental (US), Inc., leased the vehicle to Alvarado-Fernandez. 112 So. 3d at 627.
Mazoff sought damages from Alamo Financing and Alvarado-Fernandez, alleging
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specifically that Alamo Financing was vicariously liable for Alvarado-Fernandez’s
negligence. Id. Alamo Financing proposed an offer of settlement to Mazoff that
contained a condition that Mazoff would release Alamo Financing and “their
parent corporations, subsidiaries, officers, directors, and employees” from any and
all claims. Id. Mazoff subsequently moved to add Alamo Rental as a defendant
after learning that Alamo Rental was the entity that leased the car. Id. at 628.
Alamo Financing unsuccessfully moved for attorney’s fees after obtaining
judgment in its favor. Id. On appeal, the Fourth District agreed with Alamo
Financing that the proposal was not ambiguous and was therefore enforceable. Id.
The district court rejected Mazoff’s argument that the language “all Claims made
in the present action by the party to whom this proposal is made including any
claims that could be made against Defendant ALAMO FINANCING, L.P., which
arise out of the same occurrence or event set forth in this action,” could extinguish
Mazoff’s claims against Alvarado-Fernandez. Id. at 629-30. Specifically, the
district court acknowledged that when read in isolation, this clause could suggest
that Mazoff’s separate claims against Alvarado-Fernandez may be affected by his
acceptance of Alamo Financing’s offer; nonetheless, the context of the entire offer
indicated that Alamo Financing was the only offeror and the only party to be
dismissed from suit upon Mazoff’s acceptance. Id. at 630. The Fourth District
similarly dispensed with Mazoff’s suggestion that the proposal was unenforceably
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ambiguous because it could have constituted a release of Alamo Rental, which was
not a party to the lawsuit at the time the offer was made. Id. at 630-31.
In Land & Sea Petroleum, a seller made two separate proposals for
settlement with the two different brokers with whom it was engaged in a contract
dispute. 53 So. 3d at 351-52. Other than the name of the individual broker, the
proposals were identical and indicated that they would resolve “any and all claims
that could have been or should have been brought” by the individually named
broker against the seller upon payment of $500. Id. at 352. Neither broker
accepted its respective proposal. Id. The seller prevailed on a motion for summary
judgment and subsequently moved for attorney’s fees. Id. In response, the brokers
contended that the proposals were ambiguous because they did not specify which
side would pay the $500 and did not specify the claims that the proposals would
settle. Id. The trial court ultimately denied the seller’s motion for attorney’s fees;
on appeal, however, the Fourth District reversed. Id. at 352-53. The district court
held that, because the only relationship that existed between the brokers and the
seller arose from the brokerage contract, there were no other possible claims which
could have existed between the parties either within or outside of the action. Id. at
353-54. The district court also held that it was apparent that the seller was offering
to pay each of the brokers $500 in exchange for resolving the brokers’ respective
claims because the brokers were suing for a commission and the seller raised no
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counterclaim. Id. at 353 (“The brokers’ reliance on the fact that the seller did not
expressly state that it would be the party paying the $500 seems to be the type of
‘nit-picking’ which the second district cautioned against in Carey-All.”).
There can be no doubt this Court possesses discretion to exercise jurisdiction
in this case. The dissent convolutes and misstates discretionary and subject-matter
jurisdiction within the Florida Constitution. Jurisdiction exists where a decision of
a district court expressly and directly conflicts with a decision of another district
court of appeal or of this Court on the same question of law. Art. V, § 3(b)(3), Fla.
Const.; see also Knowles v. State, 848 So. 2d 1055, 1056 (Fla. 2003) (accepting
jurisdiction based on conflict created by misapplication of decisional law);
Robertson v. State, 829 So. 2d 901, 904 (Fla. 2002) (stating that misapplication of
decisional law creates conflict jurisdiction); Acensio v. State, 497 So. 2d 640, 641
(Fla. 1986) (accepting jurisdiction based on conflict created by misapplication of
decisional law). The decision below expressly and directly conflicts with this
Court’s decision in Anderson and the decisions of the Second and Fourth Districts
in Miley, Cassidy, Kiefer, Llanio-Gonzalez, Alamo Financing, and Land & Sea
Petroleum. In each of the seven conflict cases discussed, the point of law at issue
was whether an offer by a single offeror to a single offeree was considered
sufficiently clear and enforceable, although it did not address separate pending
claims of other parties to the litigation. However, in the decision below the Fifth
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District determined that such an offer was ambiguous and unenforceable because it
could have possibly affected the unaddressed claims of the other codefendant.
Therefore, we properly have jurisdiction on this matter and quash the decision
below.2
The reading of Allen’s offers as espoused by the Respondents and the Fifth
District was unreasonable under these circumstances and in contravention of this
Court’s direction in Nichols. Each proposal clearly and consistently used the
singular term “PLAINTIFF,” which was defined as W. Riley Allen in paragraph 2.
Moreover, paragraph 3 indicated that each proposal was designed to settle “any
and all claims of PLAINTIFF against [RESPONDENT],” which by its clear terms
suggested that the only parties to be affected by the proposal would be Allen and
the designated Respondent. In reading the entirety of this proposal, the only
reasonable interpretation is that Allen offered to settle his claims with only the
Respondent specified in each respective proposal.
2. Tellingly, the dissent states that this Court’s jurisprudence “in this area of
the law seems inconsistently applied and unpredictable,” but “[e]ven if there are
other cases . . . in conflict, I would not exercise jurisdiction.” Dissenting op. at 27
note 3. However, the purpose of conflict review is the elimination of inconsistent
views about the same question of law. See Gerald Kogan & Robert Craig Waters,
The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L. Rev.
1151, 1231 (1994). Therefore it is paramount this Court exercise jurisdiction to
eliminate any inconsistencies in this area of law. See, e.g., Wainwright v. Taylor,
476 So. 2d 669, 670 (Fla. 1985).
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If two codefendants each receive a proposal for settlement, in which they are
specifically named, each codefendant should possess all the information necessary
to determine whether to settle. See Nichols, 932 So. 2d at 1079 (“[T]he settlement
proposal [must] be sufficiently clear and definite to allow the offeree to make an
informed decision without needing clarification.”). In this context, it appears
disingenuous to assert that there exists a legitimate question as to whether one
codefendant’s acceptance could have settled the offeror’s claim against the other
codefendant.
The Respondents’ interpretation of the proposal for settlement ignores the
well-established principle that “the intention of the parties must be determined
from an examination of the entire contract and not from separate phrases or
paragraphs.” Moore v. State Farm Mut. Auto. Ins. Co., 916 So. 2d 871, 875 (Fla.
2d DCA 2005). Thus, any potential ambiguity in paragraph 5 is resolved by
examining the proposal for settlement as a whole.
Therefore, we conclude that the proposal was unambiguous for the purpose
of determining Allen’s entitlement to attorney’s fees.
CONCLUSION
Reading the plain language of Allen’s offers, we hold that these offers to
settle his claims against the Respondents were unambiguous. The “nitpicking” of
these offers by the district court below to find otherwise unnecessarily injected
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ambiguity into these proceedings and created more judicial labor, not less. Cf.
Nichols, 932 So. 2d at 1079. Furthermore, the plain language of both section
768.79 and Florida Rule of Civil Procedure 1.442 indicate that Allen’s entitlement
to attorney’s fees was actualized after he submitted sufficient offers and obtained
satisfactory judgments in his favor. Therefore, we quash the decision below and
remand for further proceedings consistent with this opinion.
It is so ordered.
PARIENTE, QUINCE, and LABARGA, JJ., concur.
PARIENTE, J., concurs with an opinion.
POLSTON, J., dissents with an opinion, in which CANADY, C.J., and LAWSON,
J., concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND,
IF FILED, DETERMINED.
PARIENTE, J., concurring.
I fully concur in the majority’s conclusion that the proposal for settlement in
this case was unambiguous, and thus enforceable. Majority op. at 22. I write
separately to, once again, highlight the proliferation of litigation surrounding
proposals to settle, which runs counter to the entire purpose of these proposals—to
reduce litigation. In light of the exorbitant amount of litigation, I urge courts to
focus on the goal of reducing litigation when reviewing a proposal for settlement.
Additionally, because it is “impossible to eliminate all ambiguity,” courts must
remember that a proposal need only “be sufficiently clear and definite to allow the
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offeree to make an informed decision without needing clarification.” State Farm
Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
As the majority explains, proposals for settlement are governed by section
768.79, Florida Statutes (2017), and Florida Rule of Civil Procedure 1.442.
Majority op. at 6. Under section 768.79, if a plaintiff serves a proposal for
settlement, which the defendant does not accept “and the plaintiff recovers a
judgment in an amount at least 25 percent greater” than the proposal, the plaintiff
is entitled to recover reasonable costs and attorney’s fees. § 768.79(1). The
defendant can, likewise, recover reasonable costs and attorney’s fees if the plaintiff
fails to accept the defendant’s proposal and “the judgment is one of no liability or
the judgment obtained by the plaintiff is at least 25 percent less than” the
defendant’s proposal. Id. Rule 1.442 sets forth the procedure for serving
proposals for settlement, the form these proposals should take, and the substance
they should include.
This Court has explained that rule 1.442 “was implemented solely to
encourage settlements in order to eliminate trials if possible.” Unicare Health
Facilities, Inc. v. Mort, 553 So. 2d 159, 161 (Fla. 1989); see Cheek v. McGowan
Elec. Supply Co., 511 So. 2d 977, 981 (Fla. 1987). Despite the intended purpose of
the rule, however, I have expressed concern as to “whether either the rule or the
statute is fulfilling its intended purpose of encouraging settlement or at times is
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having the opposite effect of increasing litigation.” Campbell v. Goldman, 959 So.
2d 223, 227 (Fla. 2007) (Pariente, J., specially concurring); see Lamb v.
Matetzschk, 906 So. 2d 1037, 1042-43 (Fla. 2005) (Pariente, C.J., specially
concurring); Sec. Prof’ls Inc. v. Segall, 685 So. 2d 1381, 1384 (Fla. 4th DCA
1997).
In Lamb, the Court interpreted rule 1.442 “to require differentiated offers of
judgment, regardless of whether the offer emanates from or is directed to joint
parties who have a common interest.” 906 So. 2d at 1042 (Pariente, C.J., specially
concurring). Specifically, the Court “prohibit[ed] a joint offer by a plaintiff
directed towards two defendants, one of whom [wa]s only vicariously liable for the
acts of the other defendant.” Id. at 1044 (Pariente, C.J., specially concurring). I
questioned whether this approach would actually foster the primary goal of rule
1.442 to encourage settlements and reduce litigation, particularly in cases “where
the liability of one defendant is based on vicarious liability and the issue of
vicarious liability is undisputed.” Id. (Pariente, C.J., specially concurring).
Likewise, in Campbell, I “reluctantly agree[d]” with the majority’s
conclusion that section 768.79 and rule 1.442 “require[d] that an offer of
settlement cite the Florida law on which it is based.” 959 So. 2d at 227 (Pariente,
J., specially concurring). My reluctance stemmed from the fact that “there was no
lack of clarity, uncertainty, or confusion” in the offer in Campbell, because
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although the plaintiff’s offer did not mention the statute, the offer did specify that it
was made pursuant to rule 1.442. Id. (Pariente, J., specially concurring). Thus, it
was a minor omission, not an actual ambiguity, that spawned an unnecessary
amount of litigation.
This case presents another example of unnecessary litigation prompted by a
clearly unambiguous proposal for settlement. As the majority explains, by
“nitpicking” the precise wording of the proposals in this case, the district court
“unnecessarily injected ambiguity into these proceedings and created more judicial
labor, not less.” Majority op. at 22-23. Rather than comb through the terms of a
proposal in search of ambiguity, I again urge courts to refrain “from ‘nitpicking,’ ”
and find a proposal unenforceable only when there is a reasonable ambiguity as to
its meaning. Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 853 (Fla. 2016)
(quoting Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA
2008)).
POLSTON, J., dissenting.
Because the Fifth District’s decision in Nunez v. Allen, 194 So. 3d 554, 556
(Fla. 5th DCA 2016), does not expressly and directly conflict with the decisions
- 26 -
argued by the Petitioner during jurisdictional briefing, this Court does not have the
constitutional authority to review this case.3 Accordingly, I respectfully dissent.
Specifically, this case is distinguishable from Anderson v. Hilton Hotels
Corp., 202 So. 3d 846 (Fla. 2016). In Anderson, 202 So. 3d at 849, 854-55, this
Court considered whether the term “Plaintiff” in separate proposals for settlement
from two different plaintiffs to multiple defendants could reasonably be construed
to include both plaintiffs. This Court held that the proposals for settlement were
unambiguous as they were clearly only intended to settle the claims of the
individual plaintiff named in the proposals. Id. In contrast, in this case, there was
only one plaintiff who sent two proposals for settlement to two different
defendants, a father and son. Nunez, 194 So. 3d at 556. The Fifth District
determined that the proposals for settlement were ambiguous because it was
unclear whether the language “all damages claimed by the Plaintiff” (where both
defendants were coextensively liable for all of the alleged damages) meant that
payment of the delineated amount (which was the same figure in both proposals)
would settle the case as to one or both of the defendants. Id. at 558. Therefore,
because there was only one plaintiff in Nunez rather than the two plaintiffs
3. In my view, our jurisprudence in this area of the law seems inconsistently
applied and unpredictable. Even if there are other cases cited by the majority (not
argued by the Petitioner) that are in conflict, I would not exercise jurisdiction.
- 27 -
involved in Anderson, and because different clauses were analyzed, Nunez and
Anderson do not conflict.
Additionally, Nunez is not in conflict with Kuhajda v. Borden Dairy Co. of
Alabama, 202 So. 3d 391 (Fla. 2016). In Kuhajda, 202 So. 3d at 395, this Court
considered whether an offer for settlement must meet a requirement stated in
Florida Rule of Civil Procedure 1.442 that is not listed in section 768.79, Florida
Statutes. This Court in Kuhajda, 202 So. 3d at 395, also considered whether “the
failure to include the attorney’s fees language in the offer of judgment” created
ambiguity when attorney’s fees were not sought in the pleadings. Therefore,
because Kuhajda addressed different issues of law than Nunez, the decisions do not
conflict.
Accordingly, because there is no express and direct conflict between Nunez
and the decisions argued by the parties during jurisdictional briefing, this Court
does not have the authority to review this case. I respectfully dissent.
CANADY, C.J., and LAWSON, J., concur.
Application for Review of the Decision of the District Court of Appeal – Direct
Conflict of Decisions
Fifth District - Case No. 5D14-4386
(Orange County)
W. Riley Allen of Riley Allen Law, Orlando, Florida; and Thomas D. Hall of The
Mills Firm, P.A., Tallahassee, Florida,
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for Petitioner
Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, Florida,
for Respondents
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