       Third District Court of Appeal
                               State of Florida

                         Opinion filed September 3, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D13-2852
                         Lower Tribunal No. 09-38357
                             ________________


                    Design Home Remodeling Corp.,
                                    Appellant,

                                        vs.

                   Rene Santana and Maritza Torres,
                                    Appellees.



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

      Gilbert & Caddy, Bryce Gilbert and Randall L. Gilbert (Hollywood), for
appellant.

      Ross & Girten and Lauri Waldman Ross; Friedman & Friedman and John S.
Seligman, for appellees.


Before LAGOA, SALTER and EMAS, JJ.

     EMAS, J.
      Design Home Remodeling Corporation ("Design Home") appeals from an

order denying its motion for attorney's fees pursuant to a proposal for settlement.

For the reasons that follow, we affirm.

      FACTS AND BACKGROUND

      In December 2007, Rene Santana ("Santana") slipped and fell on premises

owned by Flanco Condominium Association, Inc. ("Flanco").               In May 2009,

Santana and Maritza Torres ("Torres"), Santana's wife, filed a premises liability

action against Flanco, alleging negligent maintenance.         In its answer to the

complaint, Flanco asserted that non-party Design Home was at fault for any

negligent maintenance. On March 26, 2010, Santana and Torres filed an amended

complaint, adding Design Home as a defendant and alleging Design Home was

negligent because it "failed to keep [the] premises in a reasonably safe condition on

the floor and/or failed to warn that the floor was wet and slippery."

      On May 25, 2010, sixty days from the date on which Santana and Torres

filed the amended complaint adding Design Home as a defendant, Design Home

served Santana and Torres with individual proposals for settlement. By their

express terms, the proposals were made pursuant to section 768.79, Florida

Statutes (2010) and Florida Rule of Civil Procedure 1.442. Neither Santana nor

Torres accepted the proposals for settlement or served any response.




                                          2
      Three years later, the trial court entered an agreed summary final judgment

in favor of Design Home on all claims. Design Home timely filed its motion for

attorney's fees, asserting as its basis the prior proposals for settlement. The trial

court denied the motion, concluding that they had been filed prematurely under

rule 1.442(b). Design Home's motion for rehearing was also denied, and this

appeal followed.

      ANALYSIS

      We review de novo the question of whether a trial court properly applied the

law in denying a motion for attorney's fees. Campbell v. Goldman, 959 So. 2d

223, 225 (Fla. 2007). See also, S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So. 2d

317 (Fla. 2005).

      Section 768.79, Florida Statutes (2007), entitled “Offer of judgment and

demand for judgment” provides, in pertinent part:

      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. . . .

      Section 768.79 does not provide a timeframe within which an offer of

judgment or demand for judgment can be made. However, Florida Rule of Civil

Procedure 1.442, entitled “Proposals for Settlement,” implements the statute and

provides additional procedural components, including the following pertinent

timeframes:
                                         3
       A proposal to a defendant shall be served no earlier than 90 days after
       service of process on that defendant; a proposal to a plaintiff shall be
       served no earlier than 90 days after the action has been commenced.

Rule 1.442(b)(emphasis added).

       Section 768.79 and rule 1.442 are in derogation of the common law rule that

each party bear its own attorney’s fees1; therefore, the provisions of the statute and

the rule must be strictly construed. Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849

So. 2d 276, 278 (Fla. 2003).

       In Campbell, the trial court invalidated a proposal for settlement because it

failed to include the requisite reference to the statute upon which the proposal was

based.2   The Fourth District reversed, holding that the proposal’s failure to

expressly cite to the statute constituted "an insignificant technical violation of the

rule." Campbell, 959 So. 2d at 225. In doing so, the Fourth District certified direct

conflict with contrary decisions of the First and Second Districts.3 The Supreme


1The   American Rule states "that each party, including the successful one, in
litigation must ordinarily bear the burden of his own attorneys' fees." General
Motors Corp. v. Sanchez, 16 So. 3d 883, 884 (Fla. 3d DCA 2009).
2 Section 768.79(2)(a) requires that an offer of judgment or demand for judgment
“[b]e in writing and state that it is being made pursuant to this section.” Rule
1.442(c)(1) provides: “A proposal shall be in writing and shall identify the
applicable Florida law under which it is being made.”
3 McMullen Oil Co. v. ISS Int’l Svc. Sys., 698 So. 2d 372 (Fla. 2d DCA 1997)
(superceded by rule on other grounds) and Pippin v. Latosynski, 622 So. 2d 566
(Fla. 1st DCA 1993).

                                          4
Court accepted jurisdiction, quashed the Fourth District’s decision, approved the

decisions in McMullen Oil and Pippin, and reaffirmed the requirement that the

provisions of rule 1.442 and section 768.79 be strictly construed:

      [S]trict construction is applicable to both the substantive and
      procedural portions of the rule and statute. When read together the
      rule and statute provide parties with an unambiguous method for
      obtaining attorney fees.                   Section 768.79 provides a
      sanction against a party who unreasonably rejects a settlement offer.
      See Willis Shaw, 849 So.2d at 278. The plain language of the statute
      provides that an offer must state it is being made pursuant to this
      section. This is a mandatory requirement for this penal, fee-shifting
      provision. Because the overall subject is in derogation of the common
      law, all portions must be strictly construed.

      Id. at 227.

      Notwithstanding the Supreme Court’s decision in Campbell, Design Home

relies on two cases from our Court—both of which predate the Campbell

decision—to support its contention that prematurity is a mere "technical violation"

and not fatal to the validity of a proposal for settlement.

      Kuvin v. Keller Ladders, Inc., 797 So. 2d 611 (Fla. 3d DCA 2001) is

indistinguishable on its relevant facts from the instant case, and involved a

premature offer of judgment made by a third-party defendant upon a third-party

plaintiff. Our Court determined that, under the circumstances, this prematurity did

not invalidate the offer:

      [I]t seems clear cut that— while the ninety day provision may serve a
      useful purpose in the case of an offer to a defendant, who presumably
      is in no position to respond so soon after he first gets notice of the
                                           5
      case— it seems to have no such reason for being, or any other, when,
      as here, an offer by the defendant is involved. . . . . Particularly in
      these circumstances in which the present action against Kuvin was
      brought only after six years of accumulation of information about the
      case, we find that, as we stated in Flight Express, Inc. v. Robinson,
      736 So. 2d 796, 797 n. 1 (Fla. 3d DCA 1999) any “failure to follow
      [rule 1.442] must be considered merely a harmless technical violation
      which did not affect the rights of the parties.”

      Kuvin, 797 So. 2d at 613.

      Shoppes of Liberty City, LLC v. Sotolongo, 932 So. 2d 468 (Fla. 3d DCA

2006) is the second pre-Campbell case relied upon by Design Home. In Shoppes,

this Court determined that the proposal for settlement was not premature. We held

alternatively (and relying upon Kuvin), that even if the proposal was premature,

the “mere prematurity of a defendant's proposal for settlement does not disentitle it

to recovery under the pertinent rule.” Id. at 469.

      Regardless of the logic underlying the decisions in Kuvin and Shoppes, the

Supreme Court’s subsequent decision in Campbell plainly and unambiguously

rejects the notion that a failure to comply with the requirements of rule 1.442 and

section 768.79 can be considered a “mere technical violation” thus preserving the

validity of a proposal for settlement.        To this extent, the Supreme Court’s

pronouncement in Campbell has sub silentio overruled this Court's holdings in both

Kuvin and Shoppes. See, Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973)(holding

that district courts of appeal have no authority to overrule a decision of the

Supreme Court of Florida; district courts are duty-bound to follow the decision of

                                          6
the Florida Supreme Court, even if it conflicts with a prior opinion of the district

court).4   Design Home’s naked assertion that Kuvin and Shoppes somehow

survived the holding of Campbell is simply untenable. The broad and unequivocal

language of Campbell has covered the waterfront and, Design’s tacit argument

notwithstanding, it is not necessary for the Supreme Court, in issuing an opinion

that resolves a decisional conflict between the district courts, to catalogue every

other intermediate appellate court decision that may be overruled in its wake.

      Design Home was not included as a party in the lawsuit until the amended

complaint, naming Design Home as a defendant, was filed on March 26, 2010.

Design Home served its proposal on May 25, 2010, sixty days after the amended

complaint was filed against Design Home, contrary to the rule’s requirement that

“a proposal to a plaintiff shall be served no earlier than 90 days after the action has

been commenced.”5       Thus, Design Home’s premature proposal for settlement

violated the express ninety-day requirement of rule 1.442(b).

      CONCLUSION

4 In fact, this Court has already acknowledged and followed the holding of
Campbell without further reference to our prior decisions in Kuvin and Shoppes.
See e.g., Milton v. Reyes, 22 So. 3d 624 (Fla. 3d DCA 2009).
5 Although not raised by either party, we would agree with our sister court that the
phrase “after the action has been commenced” means, in this context, after the
action was commenced against Design Home— specifically, when Appellees filed
their amended complaint adding Design Home as a named defendant. See,
Regions Bank v. Rhodes, 126 So. 3d 1259 (Fla. 4th DCA 2013).

                                          7
      We recognize that, under the facts of the instant case, the result may appear

harsh. But for the ninety-day timeframe established by the rule, a plaintiff might

reasonably expect a defendant to make a proposal for settlement straightaway in

response to a lawsuit, and it is difficult to conceive of a reason why a plaintiff

would be unprepared to respond to such a proposal within the requisite thirty-day

timeframe.6     However, the express language of the rule,7 together with the

6 Given the existence of the rule and its mandatory timeframes, however, one
cannot ignore the possibility that in the instant case Appellees recognized the
proposals were served prematurely and were invalid under Campbell, therefore
requiring no response at all.
7  One cannot help but lament the often-tortuous history of offers of
judgments/proposals for settlement and the valiant attempts to craft a rule that
effectuates the statute’s intended purpose without procedural shortcomings that
sometimes serve to frustrate good-faith settlement efforts. See e.g., Campbell, 959
So. 2d at 227-28 (Pariente, J. specially concurring); Lamb v. Matetzschk, 906 So.
2d 1037, 1042-44 (Fla. 2005) (Pariente, J. specially concurring); Sec. Prof’ls, Inc.
v. Segall, 685 So. 2d 1381, 1384 (Fla. 4th DCA 1997) (observing “[w]e regret that
this case is just one more example of the offer of judgment statute causing a
proliferation of litigation, rather than fostering its primary goal to ‘terminate all
claims, end disputes, and obviate the need for further intervention of the judicial
process.’”) (quoting Unicare Health Facilities, Inc. v. Mort, 553 So. 2d 159, 161
(Fla. 1989)).

       While we do not suggest the existence of an unassailable solution, we would
encourage the Florida Bar’s Civil Procedure Rules Committee to consider whether
the rule should be amended to require an offeree to serve a limited response to a
proposal (apart from the existing response provision in the rule), raising any
procedural defects to the proposal, thereby providing the offeror with an
opportunity to serve a corrected proposal, in an effort to effectuate the salutary
purpose underlying a proposal for settlement. Should the offeree fail to serve such
a response, the rule could provide that this failure waives any right to subsequently
challenge the proposal based upon these procedural defects. Such an amendment
would prevent situations in which an offeror might reasonably believe he has made
                                          8
principle of strict construction and the holding in Campbell, lead inexorably to an

affirmance of the trial court’s order.

      Affirmed.




a fair, valid and binding offer, only to find out (at the eventual conclusion of costly
and lengthy litigation) that the offer was procedurally defective and therefore
invalid ab initio. If the aim is to promote early and reasonable settlements, it
seems worthwhile to consider whether the rule should be fashioned to give the
offeror an opportunity to cure any procedural defects so that the offeree has a
genuine opportunity to weigh the substantive merits of a proposal for settlement.
                                            9
