       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 25, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2593
                         Lower Tribunal No. 03-20260
                             ________________


                            Roberto Isaias, et al.,
                                   Appellants,

                                        vs.

                          The H.T. Hackney Co.,
                                    Appellee.


      An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley,
Judge.

      Krinzman, Huss & Lubetsky and Lynette Ebeoglu McGuinness, for
appellants.

      Bilzin Sumberg Baena Price & Axelrod and David Gersten and Michael
Kreitzer and Justin Brenner, for appellee.


Before WELLS, SALTER and LOGUE, JJ.

     SALTER, J.
      Roberto Isaias and two corporate co-defendants appeal final orders awarding

Isaias one-third of his attorney’s fees incurred in defense of the case below and

denying any recovery of attorney’s fees to the corporate co-defendants.          We

reverse and remand with directions to award to all three appellants the entirety of

the fees and costs found reasonable by the trial court.1

      Facts and Procedural Background

      The appellee, The H.T. Hackney Co. (“Hackney”), is a wholesale grocery

distributor which provided products to the Farm Stores chain of convenience

stores.   Isaias, and certain corporations and partnerships controlled by Isaias,

owned substantial interests in several Farm Stores businesses.        Among these

entities were appellants REW Dairy Investments, Inc. (“REW Dairy”), and Toni

Gas Food Stores, Inc. (“Toni Gas”).

      In November 1999, Isaias and the entities he controlled sold all of their

interests in the businesses to F.S. Convenience Stores, Inc. By 2002, Autumn

Partnership, LLP (“Autumn”), had acquired and was operating the Farm Stores

business. In 2002, Autumn sued Hackney in the circuit court in Miami for an

alleged breach of one of the distribution agreements.


1 The trial court concluded that the total fees and costs claimed for all three co-
defendant/appellants were $123,917.48 in attorney’s fees, and $9,186.80 in costs,
and that these amounts were reasonable. However, for reasons explained in the
body of this opinion, the trial court only awarded one-third of the fees, $41,305.82,
plus all of the costs, and only awarded that lesser amount to Isaias.

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         In 2003, Hackney filed its own suit against Isaias, REW Dairy, Toni Gas,

and the other persons and entities which had operated the Farm Stores locations

until the November 1999 sale. In its second amended complaint, Hackney alleged

that the Farm Stores owners (including the partners, shareholders, and directors of

the ownership entities) had not paid Hackney’s invoices issued from September

1998 through some time in 2001.

         In 2006, Isaias sought and obtained a summary judgment that he would not

be liable for any debt incurred by his Farm Stores entities to Hackney after the

November 1999 sale of the chain. Discovery in the case, and in particular sworn

interrogatory answers served by Hackney in March 2007, confirmed that all of

Hackney’s invoices issued to the Isaias-related Farm Stores entities under the

distribution agreements before the sale of the chain in November 1999 “have been

paid.”

         Isaias, REW Dairy, and Toni Gas then moved for a final summary judgment

based on the concession that the invoices for debts incurred following the sale of

the Farm Stores chain had been paid, but the trial court denied the motion.2

Immediately after that ruling, Isaias, REW Dairy, and Toni Gas each filed separate

proposals for settlement for $500.00.


2 This account of the proceedings below omits the defaults initially obtained by
Hackney against REW Dairy and Toni Gas, as these were set aside upon those
defendants’ motions well in advance of the proceedings relevant to this appeal.

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      The case never made it to trial or a renewed motion for final summary

judgment; in 2010, Hackney’s pleadings were stricken and its claims were

dismissed with prejudice for spoliation of documentary evidence.3 Thereafter, the

trial court heard the motions of Isaias, REW Dairy, and Toni Gas for attorney’s

fees and costs based on the proposals for settlement, section 768.79(1), Florida

Statutes (2007), and Florida Rule of Civil Procedure 1.442.

      The trial court first determined that the offers made by REW Dairy and Toni

Gas were not made in good faith, such that no attorney’s fees or costs should be

awarded to either. The trial court awarded attorney’s fees and costs to Isaias, but

concluded that the claimed fees could not be apportioned among the three

appellants.   The trial court divided the attorney’s fees claimed by the three

appellants by three and awarded that amount—plus the costs and expert witness

fees—to Isaias. This appeal followed.

      Analysis

      This appeal presents two issues. The first is whether the trial court correctly

determined that the $500.00 settlement offers by REW Dairy and Toni Gas were

not made in good faith, warranting disallowance of attorney’s fees and costs under

Rule 1.442(h)(1). Hackney bore the burden of demonstrating that the offers were

not in good faith. Segundo v. Reid, 20 So. 3d 933 (Fla. 3d DCA 2009). The

3 This Court affirmed that final judgment of dismissal with prejudice, per curiam.
H.T. Hackney Co. v. Autumn P’ship, LLP, 138 So. 3d 454 (Fla. 3d DCA 2014).

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determination of whether a “nominal” offer4 is in good faith requires the trial court

to consider whether the offeror had a reasonable basis to conclude, at the time of

making the offer, that its exposure was nominal. State Farm Fla. Ins. Co. v.

Laughlin-Alfonso, 118 So. 3d 314 (Fla. 3d DCA 2013).

      The record in the present case is that all three appellants had an objectively

reasonable basis to make a nominal offer. Hackney had conceded, not only to

Isaias, but also to REW Dairy and Toni Gas, that all invoices before the transfer of

interests in the Farm Stores entities had been paid. Hackney had not, and has not,

articulated any legally cognizable theory upon which the prior owners of interests

in the Farm Stores entities could be liable to Hackney for post-sale invoices and

deliveries. The second amended complaint, in particular, does not articulate such a

theory.

      We also cannot accept Hackney’s argument that, while Isaias’s proposal for

settlement may have been in good faith because of the partial summary judgment

he had obtained, REW Dairy and Toni Gas had not obtained such a ruling and

were therefore regarded to have more than nominal exposure. As already noted,

discovery provided an objectively reasonable basis for those two corporate

defendants to make a nominal offer. The fact that a motion for summary judgment

4 The fact that a proposal for settlement may be “nominal” does not automatically
disqualify it from characterization as a good faith offer. State Farm Ins., Co. v.
Reyes, 137 So. 3d 1122 (Fla. 3d DCA 2014); Downs v. Coastal Sys. Int’l, Inc., 972
So. 2d 258 (Fla. 3d DCA 2008).

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had been denied without elaboration does not control the assessment of the

proposals for settlement.      We therefore conclude that Hackney failed to

demonstrate that the settlement proposals by REW Dairy and Toni Gas were not

made in good faith, and we reverse that determination in the orders below.

      The second issue before us is whether the form and content of the invoices

submitted by the three appellants in support of their attorney’s fees claims required

an apportionment, such that the fee award to Isaias was required to be reduced by

two-thirds of the total fees incurred and found reasonable by the trial court. We

address this issue for the sake of completeness—recognizing that our

determination on the issue of good faith in the settlement proposals by the

corporate appellants makes it unnecessary to do so—in order to permit complete

review if Hackney seeks any further review of this decision.

      For the period from the date the settlement proposals were made until the

date the judgments of no liability were entered against Hackney, the invoice

entries, testimony, and other parts of the record do not provide any basis for the

denial of the entire amount of attorney’s fees Isaias claimed and proved. The trial

court’s decision to reduce the fees by two-thirds is apparently based on a

conclusion that “Isaias failed to prove with specificity how much time he spent on

his portion of the case as opposed to the time spent on the other two defendants.”




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       Our review of the record does not support a defendant-by-defendant

differentiation of the defense fees into “portions.” Isaias, REW Dairy, and Toni

Gas all pled and proved that the pertinent Hackney invoices were paid. That

theory of defense was shared by all three appellants, and the same legal services

benefited all three. The case relied upon by Hackney, Dr. Gail Van Diepen, P.A.

v. Brown, 55 So. 3d 612 (Fla. 5th DCA 2011), involved a failure to apportion the

plaintiffs’ attorney’s time entries between the seven counts of a complaint that

resulted in an adverse jury verdict and the single count upon which the

plaintiff/movant obtained a jury verdict for damages.

       In contrast, all three appellants in the present case employed a single law

firm to represent them based on the same theory of defense. Thus, even if we were

to affirm the trial court’s conclusion that only Isaias’s settlement proposal was

made in good faith, we would nonetheless reverse and remand the award to Isaias

for one-third of the fees incurred, with directions to enter judgment to him for the

entire amount of attorney’s fees incurred, $123,917.48, together with costs (as

allowed in the judgment under review), plus prejudgment interest as provided by

law.

       Having determined that the settlement proposals by all three appellants were

made in good faith, we reverse and remand for the entry of a final judgment

against Hackney awarding all three appellants, jointly and severally, the total sum



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of $123,917.48, together with those costs allowed by the trial court, plus

prejudgment interest as provided by law. The total recovery by any one or more of

the three appellants against Hackney shall not exceed that total.

      Reversed and remanded, with directions.




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