         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                NOT FINAL UNTIL TIME EXPIRES TO
                                                FILE MOTION FOR REHEARING AND
                                                DISPOSITION THEREOF IF FILED


JAIRO RAFAEL NUNEZ AND
GABRIEL ROGELIO NUNEZ,

             Appellants,

 v.                                                    Case No. 5D14-4386

W. RILEY ALLEN,

             Appellee.

________________________________/

Opinion filed June 24, 2016

Appeal from the Circuit Court
for Orange County,
Donald A. Myers, Jr., Judge.

Elizabeth C. Wheeler, of Elizabeth
C. Wheeler, P.A., Orlando, for Appellants.

W. Riley Allen, of Riley Allen Law, and
Simon L. Wiseman, of The Wiseman Law
Firm, P.A., Orlando, and Thomas D. Hall, of
The Mills Firm, P.A., Tallahassee, for
Appellee.


LAMBERT, J.

      Jairo Rafael Nunez and Gabriel Nunez (collectively "Appellants") appeal from a

final judgment awarding W. Riley Allen ("Appellee") $343,590 in attorney’s fees and legal

assistant’s fees pursuant to section 768.79, Florida Statutes (2011), and Florida Rule of
Civil Procedure 1.442.1 Concluding that the proposals for settlement served and filed by

Appellee were ambiguous and therefore invalid, we reverse the final judgment.

       This case resulted from a motor vehicle accident in which Gabriel Nunez was

operating a vehicle owned by his father, Jairo Nunez, when he struck a truck owned by

Appellee, which was lawfully parked in the street and unoccupied. Appellee filed a one-

count complaint against Appellants, alleging that Gabriel Nunez negligently operated the

vehicle and that Jairo Nunez, as the owner of the vehicle, was vicariously liable for his

son’s negligent driving. Appellee sought damages for, among other things, the post-

repair diminution in the value of his truck, the cost of the repairs, and the loss of use of

his truck. Appellants jointly answered the complaint.2

       Appellee then served a separate proposal for settlement on each Appellant

pursuant to rule 1.442. The proposal to Jairo Nunez provided:

                1. This Proposal for Settlement is made pursuant to Florida
                Statute § 768.79, and is extended in accordance with the
                provisions of Rule 1.442, Fla.R.Civ.P.

                2. The Proposal for Settlement is made on behalf of Plaintiff,
                W. RILEY ALLEN, and is made to Defendant, JAIRO RAFAEL
                NUNEZ.

                3. This Proposal for Settlement is made for the purpose of
                settling any and all claims made in this cause by Plaintiff, W.
                RILEY ALLEN, against defendant, JAIRO RAFAEL NUNEZ.

                4. That in exchange for TWENTY THOUSAND AND 00/100
                DOLLARS ($20,000.00) in hand paid from defendant, JAIRO
                RAFAEL NUNEZ, Plaintiff agrees to settle any and all claims
                asserted against Defendant as identified in Case Number


       1The final judgment also awarded Appellee interest in the sum of $10,686.59, plus
an $11,380 expert witness fee to counsel who testified on Appellee’s behalf at the attorney
fee hearing.

       2   Appellants were represented by the same counsel.

                                              2
Id.

       Admittedly, in the instant case, there were no specific nonmonetary terms, such as

dismissal of the action, described in the respective proposals. However, as previously

discussed, the language in the proposals themselves raised the legitimate question as to

whether acceptance resolved Appellee's claim for "all damages" against just the named

offeree or resolved the entire claim against both Appellants. As recognized in Tran, this

may be significant in a case such as this where one defendant is the permissive driver of

the vehicle and the other defendant is vicariously liable by being the owner of the vehicle.

       Accordingly, because we find that the proposals for settlement in this case were

ambiguous and therefore invalid, we reverse the final judgment on appeal in its entirety. 8

       REVERSED.

WALLIS and EDWARDS, JJ., concur.




       8 The proposals for settlement also neglected to include a separate statement as
to whether attorney’s fees were part of the legal claim. The Fourth District Court of Appeal
in Deer Valley Realty, Inc. v. SB Hotel Assocs., LLC, 190 So. 3d 203 (Fla. 4th DCA 2016),
and the First District Court of Appeal in Colvin v. Clements & Ashmore, P.A., 182 So. 3d
924, 925–26 (Fla. 1st DCA 2016), have recently held that proposals for settlement lacking
this specific language were invalid and unenforceable. However, this issue was not
raised in the instant case and, therefore, we do not consider it.

                                             8
and for a determination that he was entitled to attorney’s fees under the rule and statute.6

Appellants moved to strike Appellee’s proposals for settlement, essentially arguing that

because paragraph five of the proposal stated that the monetary settlement was inclusive

of all damages claimed by Appellee, the proposal was ambiguous as to whether

acceptance and payment of one of the $20,000 proposals for settlement would have

resolved the case against both Appellants or only against the individual Appellant

accepting the proposal. Appellants also responded to Appellee’s motion to enforce the

proposals for settlement, arguing that, under the circumstances of the case, the separate

$20,000 proposals for settlement should be considered in the aggregate, resulting in

Appellee failing to meet the monetary threshold for an award of attorney’s fees under

section 768.79(1).

       The trial court denied Appellants’ motion to strike the proposals for settlement and

granted Appellee’s motion to enforce the proposals, finding that the proposals for

settlement were sufficiently clear and unambiguous and, thus, valid and enforceable.

Following an evidentiary hearing, at which each side presented expert witness testimony,

the trial court entered the final judgment now on appeal.

       Appellants raise the following arguments on appeal: (1) the language contained

in paragraph five of the proposals for settlement caused the proposals to be ambiguous

and, therefore, unenforceable; (2) alternatively, if the proposals for settlement were not

ambiguous, then the trial court erred in not considering them in the aggregate, causing




       6
       "Section 768.79 provides the substantive law concerning offers and demands of
judgments, while Florida Rule of Civil Procedure 1.442 provides for its procedural
mechanism." Winter Park Imports, Inc. v. JM Family Enters., 66 So. 3d 336, 338 (Fla.
5th DCA 2011) (citing Saenz v. Campos, 967 So. 2d 1114, 1116 (Fla. 4th DCA 2007)).


                                             4
Appellee to fail to meet the monetary threshold for attorney’s fees; (3) if the proposals for

settlement are otherwise enforceable, Appellee should not be awarded attorney’s fees for

representing himself or, at the very least, should not be awarded attorney’s fees for

services he rendered after Appellee's co-counsel began representing him; and (4) the

amount of the attorney’s fees awarded for this case was unreasonable and not supported

by competent substantial evidence. We find the first issue dispositive, and therefore we

decline to address the merits of the remaining issues.

       "The eligibility to receive attorney’s fees and costs pursuant to section 768.79 and

rule 1.442 is reviewed de novo." Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015) (citing

Frosti v. Creel, 979 So. 2d 912, 915 (Fla. 2008)). As we wrote in Hilton Hotels Corp. v.

Anderson, 153 So. 3d 412 (Fla. 5th DCA 2014):

              An award of attorney's fees under section 768.79 is a sanction
              against the rejecting party for the refusal to accept what is
              presumed to be a reasonable offer. Sarkis v. Allstate Ins. Co.,
              863 So. 2d 210, 222 (Fla. 2003). Because the statute is penal
              in nature, it must be strictly construed in favor of the one
              against whom the penalty is imposed and is never to be
              extended by construction. Id. at 223. Strict construction of
              section 768.79 is also required because the statute is in
              derogation of the common law rule that each party is to pay
              its own attorney's fees. Campbell v. Goldman, 959 So. 2d 223,
              226 (Fla. 2007). Because the statute must be strictly
              construed, a proposal that is ambiguous will be held to be
              unenforceable. Stasio v. McManaway, 936 So. 2d 676, 678
              (Fla. 5th DCA 2006). Furthermore, the burden of clarifying the
              intent or extent of a proposal for settlement cannot be placed
              on the party to whom the proposal is made. Dryden v.
              Pedemonti, 910 So. 2d 854, 855 (Fla. 5th DCA 2005).

153 So. 3d at 415.

       In this case, the threshold question is whether the proposal for settlement is

ambiguous. Our supreme court has told us that, "given the nature of language, it may be




                                             5
impossible to eliminate all ambiguity" from a rule 1.442 proposal for settlement. State

Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). The dispositive

question then is whether ambiguity in a proposal for settlement reasonably affected the

offeree’s decision to accept the proposal. See id. If so, then the proposal for settlement

is not sufficiently clear and is not enforceable. See id.

       We agree with Appellants that the language in paragraph five of the proposals for

settlement rendered the proposals ambiguous. Initially, paragraphs two, three, and four

in each proposal for settlement make clear that payment of $20,000 by the Appellant

named in the proposal would settle Appellee’s claims brought in the case against that

specific Appellant. However, paragraph five then stated that the proposal for settlement

was inclusive of "all damages" claimed by Appellee. As "all damages" claimed arguably

are those that could have been (and were) imposed on both Appellants in this case,

paragraph five of Appellee’s proposal for settlement could be reasonably interpreted to

mean that the acceptance of the proposal for settlement by only one of the Appellants

resolved Appellee’s entire claim against both Appellants. Put differently, if paragraph five

had stated that the proposal was inclusive of all damages claimed by Appellee against

the individually named Appellant, similar to the language in paragraph three of the

proposal, there would have been no ambiguity.

       Although not directly on point, we find the reasoning of our sister court in Tran v.

Anvil Iron Works, Inc., 110 So. 3d 923 (Fla. 2d DCA 2013), persuasive. In Tran, the

plaintiff was injured in an automobile accident and sued the driver of the other vehicle and

his corporate employer, which owned the vehicle. Tran, 110 So. 3d at 924. During the

course of the litigation, plaintiff tendered separate proposals for settlement on the




                                             6
individual defendant and on the corporate defendant. Id. Each proposal was specific as

to the one defendant named therein and each stated that, as a condition of the proposal,

the plaintiff would voluntarily dismiss, with prejudice, any and all claims against the

specific defendant named in the proposal for settlement. Id. Plaintiff attached to the

proposal for settlement a copy of the proposed notice of voluntary dismissal with prejudice

to be filed if the proposal was accepted. Id. However, the attached dismissal notice

named both defendants and indicated that the case would be dismissed against both

defendants. Id. at 924–25.

       Neither defendant accepted the proposal for settlement. Id. at 925. Based on the

result at trial, plaintiff moved to enforce the proposals. Id. The trial court denied the

motion, finding that the proposals for settlement were ambiguous because, while the body

of the proposals did not indicate that both defendants would be dismissed, the notices of

dismissal attached to the respective proposals did. Id.

       The Second District Court of Appeal affirmed on this issue.7 Id. at 926. The court

held that the document was ambiguous because it was unclear whether acceptance of

the proposal by one of the defendants would result in a dismissal only against that

defendant or against both defendants. Id. The court stated that this discrepancy could

reasonably affect the decision to accept the proposal because:

                [O]ne defendant might want to accept the proposal directed to
                it only if it knows for certain that its payment would result in
                the release of both defendants. This may be especially
                significant in a case such as this where one defendant is the
                employer/owner of the car and the other defendant is the
                employee who was driving the car.



       7   The court reversed on a separate issue not relevant to the present proceedings.



                                               7
Id.

       Admittedly, in the instant case, there were no specific nonmonetary terms, such as

dismissal of the action, described in the respective proposals. However, as previously

discussed, the language in the proposals themselves raised the legitimate question as to

whether acceptance resolved Appellee's claim for "all damages" against just the named

offeree or resolved the entire claim against both Appellants. As recognized in Tran, this

may be significant in a case such as this where one defendant is the permissive driver of

the vehicle and the other defendant is vicariously liable by being the owner of the vehicle.

       Accordingly, because we find that the proposals for settlement in this case were

ambiguous and therefore invalid, we reverse the final judgment on appeal in its entirety. 8

       REVERSED.

WALLIS and EDWARDS, JJ., concur.




       8 The proposals for settlement also neglected to include a separate statement as
to whether attorney’s fees were part of the legal claim. The Fourth District Court of Appeal
in Deer Valley Realty, Inc. v. SB Hotel Assocs., LLC, 190 So. 3d 203 (Fla. 4th DCA 2016),
and the First District Court of Appeal in Colvin v. Clements & Ashmore, P.A., 182 So. 3d
924, 925–26 (Fla. 1st DCA 2016), have recently held that proposals for settlement lacking
this specific language were invalid and unenforceable. However, this issue was not
raised in the instant case and, therefore, we do not consider it.

                                             8
