Rosella Wilcox v. Michael Neville

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-4057
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ROSELLA WILCOX,

Appellant,

v.

MICHAEL NEVILLE,

Appellee.
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On appeal from the Circuit Court for Alachua County.
Stanley H. Griffis, III, Judge.

October 30, 2019

LEWIS, J.

Appellant, Rosella Wilcox, appeals the trial court’s order
denying her motion for attorney’s fees and costs filed pursuant to
section 768.79, Florida Statutes (2015), and Florida Rule of Civil
Procedure 1.442, both of which address offers of judgment.
Appellant argues that the trial court erred by interpreting the
term “postoffer settlement” in section 768.79(6) to mean
settlement after the time for accepting the offer expires. For the
reasons that follow, we agree and reverse.

BACKGROUND

Appellant filed a complaint against Jason Neville and
Appellee, Michael Neville, for damages based on a 2015 motor
vehicle collision, alleging that she was struck and injured by a
vehicle that was owned by Jason and was negligently operated by
Appellee. On May 2, 2017, Appellant filed a separate notice of
serving a proposal for settlement (“PFS”) as to each defendant
pursuant to section 768.79 and rule 1.442. On May 17, 2017, Jason
filed a notice of acceptance of Appellant’s proposal to resolve her
claim against him for $60,400. Appellant, in turn, dismissed her
claim against Jason. Appellee allowed the proposal for settlement
to expire and the parties proceeded to trial. The jury returned a
verdict for Appellant in the amount of $126,592.33.

Appellant moved for an award of attorney’s fees and costs
pursuant to section 768.79 and rule 1.442. The parties agreed that
Appellee was entitled to set-offs for Personal Injury Protection
(“PIP”) benefits and the settlement with Jason, and they agreed on
the amount of the final judgment to be entered for Appellant.
They disagreed, however, about Appellant’s entitlement to
attorney’s fees based on their divergent interpretation of the
phrase “postoffer settlement” in section 768.79(6). Specifically, the
disputed issue was whether Jason’s acceptance of Appellant’s
proposal for settlement constituted a “postoffer settlement” that
should be added to the net judgment under section 768.79(6).

The trial court explained in its order on the motion that the
net judgment was $58,865.73, which resulted from deducting the
$60,400 settlement with Jason and the $7,326.60 PIP benefits
from the $126,592.33 verdict. If Jason’s settlement was added
back to the net judgment as a “postoffer settlement,” the judgment
obtained would be $119,265.73, which “figure would exceed
$112,000.00, which is 25% more than the $89,600.00 PFS offered
to [Appellee], thereby entitling [Appellant] to statutory fees and
costs.” The court found, however, that Jason’s settlement during
Appellee’s thirty-day acceptance period was not a postoffer
settlement and reasoned:

The entire statute must be read together. The
Florida Legislature intended every PFS to remain open
and valid for an opposing party’s consideration a full 30
days. Plaintiff’s position would eliminate the 30 day
consideration period required by section 768.79(1), Fla.
Stat. Taken literally, Plaintiff’s proposed rule would bar

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 a similarly situated Defendant from the statutory
opportunity to evaluate a co-defendant’s decision to
accept or reject another PFS during the same 30 day
statutory period.

Accordingly, the trial court denied Appellant’s motion for
attorney’s fees and costs and entered a final judgment against
Appellee in the amount of $58,865.73. This appeal followed.

ANALYSIS

Our review of a trial court’s ruling on a motion for attorney’s
fees and costs filed pursuant to section 768.79 is de novo. Tierra
Holdings, Ltd. v. Mercantile Bank, 78 So. 3d 558, 561 (Fla. 1st DCA
2011). We likewise review a trial court’s interpretation of a statute
de novo. Id. The polestar of statutory interpretation is legislative
intent, which is to be determined by first looking at the actual
language used in the statute. Searcy, Denney, Scarola, Barnhart
& Shipley v. State, 209 So. 3d 1181, 1189 (Fla. 2017). If the
statutory language is clear and unambiguous, we may not resort
to the rules of statutory construction and must give the statute its
plain and obvious meaning. Id. We must give effect to all parts of
the statute and avoid readings that would render a part thereof
meaningless. Id. We may not construe a statute in a way that
would extend, modify, or limit its express terms or its reasonable
or obvious implications. Id. The statute’s plain meaning must
control, unless it leads to an unreasonable result or a result that
is clearly contrary to legislative intent. Id.

Section 768.79(6), Florida Statutes (2015), provides in
pertinent part as follows:

(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.

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 . . . For purposes of the determination required by
paragraph (b), the term “judgment obtained” means the
amount of the net judgment entered, plus any postoffer
settlement amounts by which the verdict was reduced.

The purpose of section 768.79 is to encourage the settlement
of lawsuits. White v. Steak & Ale of Fla., Inc., 816 So. 2d 546, 550
(Fla. 2002). The language of section 768.79 and rule 1.442 must
be strictly construed because they are in derogation of the common
law rule that parties pay their own fees. Tierra Holdings, Ltd., 78
So. 3d at 563 (adding that because an award pursuant to the
statute serves as a penalty, the strict construction rule must be
applied in favor of the party against whom the penalty is imposed).
An offer that complies with section 768.79 and rule 1.442 creates
a “mandatory right” to collect attorney’s fees, unless the offer is
made in bad faith. Anderson v. Hilton Hotels Corp., 202 So. 3d 846,
856 (Fla. 2016). Pursuant to section 768.79(6), a party’s
entitlement to attorney’s fees depends on the judgment obtained,
not the jury’s verdict, and that entitlement is for “post-offer
attorney’s fees and costs.” White, 816 So. 2d at 550-51. “Proposals
for settlement are governed by the rules for interpretation of
contracts.” Arnold v. Audiffred, 98 So. 3d 746, 748 (Fla. 1st DCA
2012), approved in Audiffred v. Arnold, 161 So. 3d 1274 (Fla. 2015).

The Legislature did not define the phrase “postoffer
settlement” or the term “postoffer” in section 768.79(6), the
interpretation of which is at issue in this appeal. As such, we turn
to the dictionary definition. See W. Fla. Reg’l Med. Ctr., Inc. v. See,
79 So. 3d 1, 9 (Fla. 2012) (explaining that the plain meaning of the
statute’s text may be discerned from a dictionary). “Post” has been
defined as “after.” Post, BLACK’S LAW DICTIONARY (11th ed. 2019).
The definition of “offer” is as follows:

1. The act or an instance of presenting something for
acceptance; specif., a statement that one is willing to do
something for another person or to give that person
something . . . .
2. A promise to do or refrain from doing some
specified thing in the future, conditioned on an act,
forbearance, or return promise being given in exchange
for the promise or its performance; a display of

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 willingness to enter into a contract on specified terms,
made in a way that would lead a reasonable person to
understand that an acceptance, having been sought, will
result in a binding contract . . . .

Offer, BLACK’S LAW DICTIONARY (11th ed. 2019); see also Arnold,
98 So. 3d at 748 (quoting the second part of Black’s Law
Dictionary’s definition of “offer” in the context of section 768.79);
Settlement offer, BLACK’S LAW DICTIONARY (11th ed. 2019)
(defining “settlement offer” as “[a]n offer by one party to settle a
dispute amicably (usu. by paying money) to avoid or end a lawsuit
or other legal action”). Cf. Acceptance, BLACK’S LAW DICTIONARY
(11th ed. 2019) (defining “acceptance” as “[a]n offeree’s assent,
either by express act or by implication from conduct, to the terms
of an offer in a manner authorized or requested by the offeror, so
that a binding contract is formed”); Settlement, BLACK’S LAW
DICTIONARY (11th ed. 2019) (defining “settlement” in part as “[a]n
agreement ending a dispute or lawsuit”).

Consequently, we find the plain meaning of “postoffer” to be
after the offer; that is, after the act of presenting something for
acceptance or displaying a willingness to enter into a contract on
specified terms. As such, we interpret “postoffer settlement” to
mean settlement reached any time after the service of the offer.

We are unpersuaded by Appellee’s argument that if the
Legislature did not intend to make a distinction between an offer
that is accepted within the thirty-day acceptance period and an
offer that is accepted after that period, then it would have simply
used the term “settlement” as there would have been no need to
reference “postoffer settlement.” The term “postoffer” is not
superfluous—it excludes pre-offer settlements. Had Appellant
reached a settlement with Jason before making an offer to
Appellee, that settlement amount would not have been included in
calculating the judgment obtained. While this issue is one of first
impression, White supports our interpretation. There, the Florida
Supreme Court used the term “pre-offer taxable costs” to mean
taxable costs incurred up to the date of the offer and explained that
section 768.79(6)—which provides for an award of costs and fees
incurred “from the date the offer was served”—entitles a party to

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recover its “post-offer attorney’s fees and costs.” See White, 816 So.
2d at 548-51.

In finding that a co-defendant’s settlement during the thirty-
day acceptance period is not a postoffer settlement, the trial court
reasoned that the entire statute must be read together and a
contrary interpretation would eliminate the statutory requirement
that every offer remain open for consideration for a full thirty days.
Appellee makes the same argument on appeal. However, that
interpretation not only ignores and modifies the plain language of
section 768.79(6) as we just discussed, but it is also based on faulty
reasoning. While the statute provides the offeree with thirty days
to accept an offer, it allows the offeror to withdraw the offer any
time before a written acceptance is filed. § 768.79(1), (4), (5), Fla.
Stat.; see also Fla. R. Civ. P. 1.442(e), (f)(1) (providing that a
proposal may be withdrawn in writing before a written acceptance
is delivered and “[a] proposal shall be deemed rejected unless
accepted by delivery of a written notice of acceptance within 30
days after service of the proposal”). Rule 1.442 additionally
provides that “[i]n any case in which the existence of a class is
alleged, the time for acceptance of a proposal for settlement is
extended to 30 days after the date the order granting or denying
certification is filed.” Fla. R. Civ. P. 1.442(f)(2). Given such, the
thirty-day period is not immutable and may be shortened (or
lengthened). Regardless, that period pertains to the acceptance of
an offer, not to the making of an offer. There must be “acceptance”
of an “offer” for there to be a “settlement agreement”—these are
not interchangeable concepts. See, e.g., § 768.79, Fla. Stat.

Further, interpreting “postoffer” literally to mean “after the
offer” does not eliminate the thirty-day acceptance window. A co-
defendant’s acceptance of an independent offer has no bearing on
the defendant’s acceptance period. Jason’s acceptance of
Appellant’s offer had no effect on Appellee’s acceptance period.
Appellant’s offer to Appellee remained open and valid until it was
deemed rejected due to his failure to accept it within thirty days;
during that period, he could have accepted the offer or she could
have withdrawn it. While a plaintiff’s settlement with a co-
defendant likely factors into a defendant’s decision on whether to
accept an offer, it has no bearing on the options and timeframes
available to him.

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 Thus, the clear and unambiguous language of section
768.79(6) requires the judgment obtained to include the amount of
any settlement by a co-defendant after the date of service of the
offer on the defendant by which the verdict was reduced. Here, it
is undisputed that Appellant reached a $60,400 settlement with
Jason after serving her offer on Appellee and the verdict was
reduced by that amount. Accordingly, the trial court was required
to add the $60,400 settlement amount to the net judgment in
calculating the judgment obtained and determining Appellant’s
entitlement to fees.

CONCLUSION

Based upon the foregoing, we reverse the trial court’s order
denying Appellant’s motion for attorney’s fees and costs and
remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

OSTERHAUS and KELSEY, JJ., concur.

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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Rebecca B. Creed and Daniel Mahfood, Creed & Gowdy, P.A.,
Jacksonville, for Appellant.

Matthew C. Scarborough, Scarborough Attorneys at Law, Tampa,
for Appellee.

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