24 Fla. L. Weekly Supp. 980a
Online Reference: FLWSUPP 2411LAWRAttorney’s fees — Proposal for settlement — Nominal offer — Good faith — Where prevailing defendants always contended that they did not have any liability in contract action, there is nothing in record to support plaintiff’s argument that $100 proposal for settlement was not made in good faith, and defendants are entitled to award of attorney’s fees and costs — Fact that proposed settlement would not have even covered plaintiff’s filing fee does not establish bad faith
KORAH LAWRENCE, Plaintiff, vs. LAKELAND TOYOTA SCION, INC., and CLIVE HUNTER, Defendants. County Court, 10th Judicial Circuit in and for Polk County, Small Claims Division. Case No. 2014SC-004377. January 26, 2016. Susan L. Barber, Judge. Counsel: Stephen Zielinski, for Plaintiff. Walter Thomas, for Defendants.
ORDER GRANTING DEFENDANT’S MOTION FORATTORNEY’S FEES AND TAXATION OF COSTS
This cause was before the court on December 11, 2015 for consideration of Defendant’s Motion for Attorney’s Fees and Taxation of Costs. Walter Thomas, Esquire appeared for the Defendant and Stephen Zielinski, Esquire appeared for the Plaintiff by telephone. The court heard argument of counsel and received and reviewed Defendant’s Memorandum of Law and Plaintiff’s Brief in Opposition to Defendants’ Motion. The court has carefully considered the arguments of counsel and applicable law. The court makes the following findings:
1. On or about November 14, 2014, Petitioner filed a Statement of Claim seeking damages against Defendants arising from a vehicle transaction.
2. On or about April 21, 2015, Defendants served a Proposal for Settlement to Petitioner. The Proposal indicates it was made pursuant to Florida Statutes 768.79 and Rule 1.442 of the Florida Rules of Civil Procedure.
3. On or about May 4, 2015, Petitioner provided notice of rejection of Defendants’ Proposal for Settlement.
4. On July 27, 2015, trial in this cause was held and a Judgment entered for Defendants. Plaintiff took nothing from this suit.
5. This is a small claims action. Rule 1.442 of the Florida Rules of Civil Procedure is not applicable in this matter. However, the court finds that rule 1.442 does not need to apply in order for the parties to avail themselves of section 768.79, Florida Statutes. Section 768.79 provides for the award of attorney’s fees to a party in a case involving a policy of insurance or other contract where that party makes a reasonable offer of or demand for judgment that is rejected by the opposing party and where the judgment subsequently entered falls within a certain percentage of the offer or demand. 768.79(1), Fla. Stat. (2015). The purpose of the statute “. . .is to encourage the early settlement and termination of litigation in civil cases generally.” Nat’l Healthcorp Ltd. P’ship v. Close, 787 So.2d 22, 26 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D252a]. By its plain language, section 768.79 applies to small claims matters involving suits for damages under a policy of insurance or contract. Thus, the court concludes that section 768.79 applies to small claims matters without regard to the Florida Rules of Civil Procedure.
6. Plaintiff has argued that the court should deny Defendants’ Motion because the Motion fails to comply with the mandates of Florida Statutes, section 768.79. Plaintiff argues that since the proposal for settlement was for the “nominal total amount of $100.00” and was not enough to cover the filing fee incurred by Plaintiff of $450.00 in filing the lawsuit, the proposal is invalid. Therefore, Plaintiff argues that accepting the proposal for settlement would have resulted in a net loss to Plaintiff. Plaintiff further argues that a valid proposal for settlement must include taxable costs to Plaintiff at the time the offer was made.
7. The court disagrees with Plaintiff’s argument. Pursuant to section 768.79(1), Florida Statutes (2015), a defendant is entitled to an award of reasonable costs and attorney’s fees if the defendant’s offer of judgment is not accepted and if the judgment ultimately obtained is one of no liability or is at least twenty-five percent less than the offer. Thereafter, once entitlement is established, a trial court may, in its discretion, disallow an award of fees and costs if it is determined that the proposal was not made in good faith. The burden is on the offeree to prove the absence of good faith. The determination of whether an offer was served in good faith turns entirely on whether the offeror had a reasonable foundation upon which to make the offer. See Camejo v. Smith and Hillsborough Transit Authority, 774 So.2d 28, (Fla. 2d DCA 2000) [25 Fla. L. Weekly D2216d].
8. Defendants have asserted that their offer was reasonable in that they have always contended that they did not have any liability in this action. There is nothing in the record upon which to base a finding that Defendants’ proposal was not made in good faith, and Plaintiff has not met its burden to prove the absence of Defendants’ good faith in extending the proposal for settlement.
Therefore, it is Ordered:
1. Defendants are entitled to an award of reasonable costs and attorney’s fees from the date of filing of the offer in this matter.
2. The court reserves jurisdiction to determine a reasonable award in the event the parties are unable to reach an agreement on this issue.
