         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
                 _____________________________

                         No. 1D17-2496
                 _____________________________

MARSHALL CASSEDY, JR.,

    Appellant,

    v.

MONIQUE WOOD, NIKKI CLARK
and DARCY CAVELL,

    Appellees.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

                        February 11, 2019


PER CURIAM.

     Appellant, Marshall Cassedy (“Cassedy”), appeals a trial
court’s order awarding attorney’s fees pursuant to the terms of a
lease agreement, but denying additional fees under section 768.79,
Florida Statutes. The trial court held attorney’s fees were not due
pursuant to the statute because (1) the terms of the lease were
binding, and (2) the settlement proposal was ambiguous and thus
unenforceable. Because we find Cassedy is entitled to recover his
attorney’s fees and costs from Appellees (“Lessees”) under both the
terms of the lease agreement and section 768.79, the order is
reversed.
                               Facts

     Cassedy, the owner of real property, entered into a lease
agreement with Lessees. Cassedy filed a complaint claiming
Lessees had breached the terms of the lease by vacating the
property and terminating rent payment. Cassedy served proposals
of settlement for $25,000.00 on each of the Lessees separately as
required by section 768.79 and Florida Rule of Civil Procedure
1.442. The terms of the proposals for settlement to each Lessee
were identical and read: ∗

         Pursuant to Section 768.79, Florida Statutes and
    Fla. R. Civ. P. 1.442, Plaintiff, Marshall Cassedy, Jr.
    (“Cassedy”), directs this Proposal for Settlement to
    Defendant, Monique Wood (“Wood”). Cassedy offers to
    settle and resolve all claims for damages that would
    otherwise be awarded Cassedy against Wood in a final
    judgment in this action for the total sum of $25,000.00
    (the “Settlement Amount”).

        The Settlement Amount includes payment for any
    award of attorney’s fees and suit costs to which Cassedy
    may be entitled and $0.00 of which sum is for any claim
    that Cassedy may have against Wood to an award of
    punitive damages because no such claim has been
    asserted or certified in this case.

         The only conditions of the Proposal for Settlement
    are as follows:

         1. Wood shall tender the Settlement Amount at the
    office of Cassedy’s counsel.

        2. No later than ten (10) days following tender and
    the clearance of funds representing the Settlement
    Amount, Cassedy shall cause his counsel to file a notice,
    in conformity with the requirement of Fla. R. Civ. P.




    ∗
        Names differed as to each Lessee.

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    1.420(a)(1)(A), causing the dismissal with prejudice of
    Cassedy’s claims asserted in this action against Wood.

     All three Lessees rejected the settlement offers, and the case
proceeded to a jury trial. The jury found Lessees jointly and
severally liable for the sum of $83,657.60. The trial court entered
a final judgment retaining jurisdiction to determine attorney’s fees
and costs due to Cassedy.

     Cassedy filed a motion asserting his entitlement to attorney’s
fees, costs and prejudgment interest pursuant to section 768.79, as
well as the lease agreement. Regarding attorney’s fees and costs,
the lease agreement provided, “Lessee agrees to pay the cost of
collection and ten per cent [sic] attorney’s fees on any part of said
rental that may be collected by suit or by attorney, after the same
is past due.” Following a hearing, Cassedy was awarded attorney’s
fees pursuant to the lease agreement ($8,365.75 or ten percent of
the judgment), but denied attorney’s fees under section 768.79.
The trial court surmised it was unable to determine from the
wording of the settlement proposal whether the judgment was 25%
over the settlement offer; specifically, whether the three
settlement offers of $25,000.00 each should be aggregated for the
purpose of comparison to the amount awarded. The trial court
further concluded that regardless of whether the offer of
settlement should be aggregated, Cassedy was not entitled to
attorney’s fees per statute, as the terms of the lease “controlled.”

     Cassedy argues on appeal that the terms in the lease
agreement do not bar recovery of attorney’s fees under 768.79, and
the offers of settlement should not be aggregated for the purpose
of determining entitlement under the statute. We agree.

                              Analysis

     A lower court’s ruling on a motion for attorney’s fees and costs
pursuant to section 768.79 and Rule 1.442 is reviewed de novo.
Kuhajda v. Borden Dairy Co. of Ala., LLC, 202 So. 3d 391, 393-94
(Fla. 2016); Padura v. Klinkenberg, 157 So. 3d 314, 316 (Fla. 1st
DCA 2014).

     Cassedy first argues the trial court erred in denying attorney’s
fees pursuant to section 768.79, claiming the fee provision in the
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lease agreement does not prevent a simultaneous award of
attorney’s fees under the statute. Section 768.79 provides:

    In any civil action for damages filed in the courts of this
    state, if a defendant files an offer of judgment which is
    not accepted by the plaintiff within 30 days, the
    defendant shall be entitled to recover reasonable costs
    and attorney’s fees incurred by her or him or on the
    defendant’s behalf pursuant to a policy of liability
    insurance or other contract from the date of filing of the
    offer if the judgment is one of no liability or the judgment
    obtained by the plaintiff is at least 25 percent less than
    such offer, and the court shall set off such costs and
    attorney’s fees against the award. Where such costs and
    attorney’s fees total more than the judgment, the court
    shall enter judgment for the defendant against the
    plaintiff for the amount of costs and fees, less the amount
    of the plaintiff’s award. If a plaintiff files a demand for
    judgment which is not accepted by the defendant within
    30 days and the plaintiff recovers a judgment in the
    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 the filing of the
    demand. If rejected, neither an offer nor demand is
    inadmissible in subsequent litigation, except for pursuing
    the penalties of this section.

     The purpose of an attorney’s fee provision in a contract is not
to enrich the prevailing party, but to make the prevailing party
whole through reimbursement of litigation. Tierra Holdings, Ltd.
v. Mercantile Bank, 78 So. 3d 558, 563 (Fla. 1st DCA 2011). Section
768.79 imposes a penalty. Id.; see also Schussel v. Ladd
Hairdressers, Inc., 736 So. 2d 776, 778 (Fla. 4th DCA 1999).
Because the statute is “in derogation of the common law rule that
each party pay its own fees,” it “must be strictly construed.” Tierra
Holdings, 78 So. 3d at 563 (quoting Willis Shaw Express, Inc. v.
Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003)). “Further, because
an award under the offer of judgment statute serves as a penalty,
the strict construction rule must be applied ‘in favor of the one
against whom the penalty is imposed,’ and the statute must never


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be ‘extended by construction.’” Tierra Holdings, 78 So. 3d at 563
(quoting Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 223 (Fla. 2003)).

     Here, both parties support their arguments with citation to
Tierra Holdings. In Tierra Holdings, the trial court awarded
attorney’s fees to one party pursuant to section 768.79 and to
another party pursuant to an attorney’s fee provision in the
contract. Id. at 559-60. The issue raised as a matter of first
impression in the case was whether “a valid proposal for
settlement under section 768.79, Florida Statutes, cuts off a
prevailing party’s claim for contractual attorney’s fees and costs
incurred after the date of the proposal.” Id. at 561. This Court
answered the question in the negative. In reaching its conclusion,
this Court noted the fee provision at issue was very broad and
provided simply that the “‘prevailing party’ in any litigation in
connection with the contract would be entitled to all costs and
expenses including attorney’s fees.” Id. at 560. This Court further
recognized there was nothing in the contract language limiting a
“prevailing party’s entitlement to an award of fees based upon the
opposing party’s offer to settle” nor did the plain language of
section 768.79 “authorize . . . the modification of a contractual right
to attorney’s fees.” Id. at 563.

     Although the Tierra Holdings decision is not directly on point,
its decision provides direction. Here, the issue before this Court is
whether a party can be awarded attorney’s fees under a lease
agreement provision and section 768.79 simultaneously. As in
Tierra Holdings, the contract language in the attorney’s fee
provision of the lease does not explicitly waive any attorney’s fees
which may be available per statute. Further, the plain language
of section 768.79 does not simply make attorney’s fees permissible,
but mandatory if all requirements set forth are met and the offer
was made in good faith. See TGI Friday’s, Inc. v. Dvorak, 663 So.
2d 606 (Fla. 1995). Thus, because section 768.79 imposes a
penalty, the fact that an attorney’s fee award is mandatory under
the statute if all requirements are met, and this Court’s ruling in
Tierra Holdings, we find a party may be awarded fees pursuant to
terms in a contract and section 768.79 simultaneously. See Land
& Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So. 3d 348 (Fla.
4th DCA 2011) (holding seller was entitled to attorney’s fees based
on a provision in the contract as well as under 768.79); Fed. Auto

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Ins., Inc. v. Bus. Acquisitions Brokerage, Inc., 839 So. 2d 767 (Fla.
4th DCA 2003) (holding party entitled to attorney’s fees under both
contract language and section 57.115, Florida Statutes). Stated
another way, an award of attorney’s fees and costs to a party under
the terms of a lease agreement does not preclude an award of
additional fees and costs under section 768.79.

     Cassedy next challenges the trial court’s conclusion that the
proposals for settlement were ambiguous, as it could not determine
whether the three settlement offers of $25,000 should be
aggregated for the purpose of comparison to the judgment. This
question was settled by the supreme court in Anderson v. Hilton
Hotels Corporation, 202 So. 3d 846 (Fla. 2016). In Anderson, the
supreme court determined that aggregating offers of settlement for
the purpose of determining entitlement to attorney’s fees “cannot
be tolerated under a strict construction of section 768.79.” Id. at
858. The court determined Anderson became entitled to fees when
he obtained a judgment that “was at least 25% greater than any of
these offers.” Id.

     Here, there is no dispute Cassedy obtained a judgment 25%
greater than any of the $25,000.00 offers of settlement. Lessees do
not argue Cassedy has failed to meet the requirements of the
statute, and we find no basis in the record upon which such an
argument could be made. Thus, as the proposals for settlement
meet the requirements set forth in section 768.79 and Rule 1.442,
Cassedy was entitled to receive additional attorney’s fees pursuant
to the statute.

                            Conclusion

     The trial court erred in determining Cassedy could not receive
additional attorney’s fees under section 768.79. Based on the
imposition of a penalty pursuant to section 768.79 and its
mandatory application if all requirements are met, we find a party
is not precluded from receipt of attorney’s fees under a contract
and the statute simultaneously. In addition, the trial court erred
in concluding the offers of settlement were ambiguous as it could
not determine whether the offers should aggregated for
determining entitlement under section 768.79. Therefore, we
reverse the order below and remand for further proceedings
consistent with this opinion.
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    REVERSED and REMANDED.

OSTERHAUS, WINOKUR, and M.K. THOMAS, JJ., concur.

               _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


J. Marshall Conrad and Anthony L Bajoczky, Jr. of Ausley
McMullen, Tallahassee, for Appellant.

David P. Healy of Dudley, Sellers, Healy & Heath, PL,
Tallahassee, for Appellees.




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