       Third District Court of Appeal
                               State of Florida

                          Opinion filed October 3, 2018.
   This Opinion is not final until disposition of any further motion for rehearing
and/or motion for rehearing en banc. Any previously-filed motion for rehearing en
                               banc is deemed moot.

                               ________________

                                No. 3D15-1594
                         Lower Tribunal No. 09-1214-K
                             ________________


                          Atlantic Civil, Inc., etc.,
                                   Appellant,

                                       vs.

                      Edwin O. Swift, III, etc., et al.,
                                   Appellees.


      An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig,
Judge.

     Shubin & Bass, P.A., and Jeffrey S. Bass and Katherine R. Maxwell;
Hershoff, Lupino & Yagel, LLP, and James S. Lupino, for appellant.

      Cole Scott & Kissane, P.A., and Kathryn L. Ender, for appellees.


Before ROTHENBERG, C.J.,1 and SUAREZ and LAGOA, JJ.

1 Chief Judge Rothenberg did not participate in oral argument, but participated in
the decision.
      LAGOA, J.

                         ON MOTION FOR REHEARING

      Appellees, Edwin O. Swift, III (“Swift”) and Key Haven Estates, LLC

(“Key Haven”), move for rehearing of this Court’s opinion, Atlantic Civil, Inc., v.

Swift, 42 Fla. L. Weekly D516 (Fla. 3d DCA Mar. 1, 2017). Upon consideration

of the motion for rehearing and Appellant Atlantic Civil, Inc.’s (“Atlantic Civil”)

response, we grant the motion for rehearing, withdraw our prior opinion, and

substitute the following opinion it its place.2

      Atlantic Civil appeals the denial of its second renewed motion for attorneys’

fees based upon a Proposal for Settlement (the “Proposal”) served pursuant to the

offer of judgment statute, section 768.79, Florida Statues (2010), and Florida Rule

of Civil Procedure 1.442. We hold that the Proposal was invalid under Attorneys’

Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646 (Fla. 2010), and affirm.

I.    FACTUAL AND PROCEDURAL HISTORY

      In 2008, Atlantic Civil entered into a contract with the Florida Department

of Transportation that required it to excavate fill material along a section of

highway located in Monroe County. Atlantic Civil temporarily stored the fill

material on land owned by Key Haven. Swift is the managing member of Key


2In the same motion, the appellees also moved for certification of conflict to the
Supreme Court of Florida. That aspect of the motion is denied.

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Haven. A dispute arose concerning ownership of the fill material, and as a result,

Atlantic Civil filed suit against Swift, individually, and Key Haven. The operative

complaint alleged a count for conversion against Swift and Key Haven (Count I), a

count for unjust enrichment against Key Haven (Count II), and a count for tortious

interference against Swift and Key Haven (Count III).

      On February 4, 2010, Atlantic Civil served the Proposal on Swift and Key

Haven pursuant to section 768.79, Florida Statutes, and rule 1.442. The Proposal

provided, in relevant part, as follows:

                         PROPOSAL FOR SETTLEMENT

             Plaintiff Atlantic Civil, Inc. (“ACI”), by and through
             undersigned counsel and pursuant to Section 768.79,
             Florida Statutes and Rule 1.442, Florida Rules of Civil
             Procedure, makes the following proposal for settlement
             to defendants Edwin O. Swift, III (“Swift”) and Key
             Haven Estates, LLC (“Key Haven”) (collectively,
             “Defendants”), the terms of which are as follows.

             1. Nature of Resolved Claims. ACI proposes to resolve
             all claims brought by ACI against Defendants in the
             above-captioned action . . . .

             2. Amount of Proposal. . . . ACI proposes that
             Defendants pay ACI the total amount of FIFTY
             THOUSAND DOLLARS ($50,000.00) apportioned as
             follows: from Swift to ACI, the amount of TWENTY-
             FIVE THOUSAND DOLLARS ($25,000), and from Key
             Haven to ACI, the amount of TWENTY-FIVE
             THOUSAND DOLLARS ($25,000.00), in full and
             complete settlement of the claims identified in paragraph
             (1) above.



                                          3
            3. Proposal Inclusive of Attorney’s Fees. The total
            amount of FIFTY THOUSAND DOLLARS ($50,000.00)
            demanded in paragraph (2) above includes attorney’s fees
            and costs.

            *    *   *

            5. Nonmonetary or Other Conditions. This proposal is
            conditioned on the mutual exchange of general releases
            (attached hereto as Exhibits A and B) as described in this
            paragraph. ACI will dismiss this action with prejudice
            and execute a general release, in favor of Defendants, of
            the claims identified in paragraph (1) above. Likewise,
            Defendants will execute a general release, in favor of
            ACI, of all counterclaims arising from or connected to
            this action which, if not asserted herein, would be barred
            by final judgment in this matter.

            6. Acceptance or Rejection of Proposal. This proposal
            shall be deemed rejected unless Defendants accept it by
            delivering written notice of acceptance to ACI within
            thirty (30) days . . . . If Defendants do not timely accept
            this proposal, Swift and/or Key Haven may be liable for
            reasonable attorney’s fees and costs incurred by ACI
            from the date of filing this proposal pursuant to Section
            768.79, Florida Statutes.

The Proposal was not accepted, and the matter proceeded to a bench trial.

      The trial court found Swift and Key Haven not liable on all counts and

entered final judgment in their favor. Atlantic Civil appealed the final judgment to

this Court in Atlantic Civil, Inc. v. Swift, 118 So. 3d 271 (Fla. 3d DCA 2013).

This Court affirmed in part and reversed in part, finding that Atlantic Civil

established its claim for conversion as a matter of law, and remanded for entry of a

judgment in favor of Atlantic Civil. Id. at 271. On remand, the trial court entered


                                         4
an amended final judgment in favor of Atlantic Civil and against Swift and Key

Haven, jointly and severally, in the amount of $86,108.51.

         Atlantic Civil moved for attorneys’ fees based on the Proposal. In its second

renewed motion for attorneys’ fees, Atlantic Civil argued that “[b]ecause the Final

Judgment for [Atlantic Civil] is greater than $62,500, which amount is 25 percent

greater than the Proposal for Settlement the Defendants rejected, [Atlantic Civil] is

entitled to recover the attorneys’ fees and costs it incurred from February 4, 2010,

the date of the Proposal for Settlement,” pursuant to section 768.79.3 Swift and

Key Haven filed a memorandum in opposition to Atlantic Civil’s motion for

attorneys’ fees, arguing that the Proposal was invalid because, among other

reasons, it was conditioned on both Swift and Key Haven accepting the Proposal,

and thereby deprived each defendant of independent control of his or its decision to

settle. The trial court conducted a hearing on the motion and made an oral finding

that the language of the proposal “defeats the required opportunity to

independently evaluate and settle the claim.” The trial court entered an order

3   Section 768.79 states in relevant part:

               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 an 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.

§ 768.79(1), Fla. Stat. (2010).

                                              5
denying Atlantic Civil’s second renewed motion for attorneys’ fees, finding “for

the reasons stated on the record, that the Plaintiff’s Proposal for Settlement fails to

satisfy the particularity requirement of Rule 1.442 of the Florida Rules of Civil

Procedure and is ambiguous.” This appeal followed.

II.    STANDARD OF REVIEW

       “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); see also Key W. Seaside, LLC v. Certified Lower Keys Plumbing,

Inc., 208 So. 3d 718, 720 n.1 (Fla. 3d DCA 2015) (“This Court reviews de novo a

trial court’s ruling on a motion to award attorney’s fees and costs pursuant to the

offer of judgment statute and rule.”).

III.   ANALYSIS

       Florida courts are required to strictly construe the provisions of the offer of

judgment statute, section 768.79, and rule 1.442, which implements section 768.79.

Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003); see,

e.g., Audiffred v. Arnold, 161 So. 3d 1274, 1279 (Fla. 2015) (applying “the

required strict construction of the rule and the statute” in finding that the offer,

which would have resolved all pending claims by two plaintiffs against one

defendant, must be treated as a joint proposal). This is so because the statute and

rule “are in derogation of the common law rule that each party should pay its own



                                          6
fees.” Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So. 3d 391, 394 (Fla.

2016); see also Pratt, 161 So. 3d at 1271 (“This Court has held that subdivision

(c)(3) of rule 1.442, which requires a joint proposal to state the amount and terms

attributable to each offeror or offeree, must be strictly construed because it, as well

as the offer of judgment statute, is in derogation of the common law rule that each

party is responsible for its own fees.”).

      In Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646 (Fla. 2010),

the Florida Supreme Court’s strict application of the apportionment requirement of

rule 1.442(c)(3)4 resulted in the invalidation of a joint proposal for settlement

“where one defendant presented an offer to two plaintiffs that was conditioned

upon the acceptance of both plaintiffs.” Pratt, 161 So. 3d at 1272 (stating that

“[s]trict application” of the apportionment requirement of rule 1.442 resulted in

invalidation of proposal for settlement in Gorka). In Gorka, the issue before the

Court was “whether a joint offer of settlement or judgment that is conditioned on

the mutual acceptance of all of the joint offerees is valid and enforceable.” 36 So.

3d at 649. The specific proposal for settlement at issue was made by defendant,

Attorneys’ Title Insurance Fund, Inc., to two plaintiffs, Gorka and Larson, and
4 Rule 1.442(c)(3), which sets forth the requirements for joint proposals such as

the one at issue here, provides as follows: “A proposal may be made by or to any
party or parties and by or to any combination of parties properly identified in the
proposal. A joint proposal shall state the amount and terms attributable to each
party.”




                                            7
“offered payment of $12,500 to Gorka and payment of $12,500 to Larson in full

settlement of all claimed damages, attorneys’ fees, and costs.” Attorneys’ Title

Ins. Fund, Inc. v. Gorka, 989 So. 2d 1210, 1211 (Fla. 2d DCA 2008). The proposal

was further “‘conditioned upon the offer being accepted by both John W. Gorka

and Laurel Lee Larson. In other words, the offer can only be accepted if both John

W. Gorka and Laurel Lee Larson accept and neither Plaintiff can independently

accept the offer without their co-plaintiff joining in the settlement.’” Id.

      The Court held that the proposal was invalid “because it is conditioned such

that neither offeree can independently evaluate or settle his or her respective claim

by accepting the proposal.” Gorka, 36 So. 3d at 647; see also Audiffred, 161 So.

3d at 1279 (“We held that the proposal in Gorka was invalid because the

conditional nature of the offer divested each plaintiff of independent control over

the decision to settle.”); Pratt, 161 So. 3d at 1272 (same).           In reaching its

conclusion, the Court explained that:

             we have drawn from the plain language of rule 1.442 the
             principle that to be valid and enforceable a joint offer
             must (1) state the amount and terms attributable to each
             party, and (2) state with particularity any relevant
             conditions. A review of our precedent reveals that this
             principle inherently requires that an offer of judgment
             must be structured such that either offeree can
             independently evaluate and settle his or her respective
             claim by accepting the proposal irrespective of the other
             parties’ decisions. Otherwise, a party’s exposure to
             potential consequences from the litigation would be



                                           8
             dependently interlocked with the decision of the other
             offerees.

Gorka, 36 So. 3d at 650 (emphasis added) (citation omitted).

      Significantly, the rule set forth in Gorka that a joint proposal for settlement

must be structured such that each offeree can independently evaluate and settle his

or her respective claim irrespective of any other offeree’s decision has been

applied in the absence of language expressly requiring mutual acceptance. See

Pacheco v. Gonzalez, 43 Fla. L. Weekly D1084, D1086 n.6 (Fla. 3d DCA May 16,

2018) (“[W]e find no logical basis to prevent Gorka from applying to proposals for

settlement where the text, though not explicitly requiring mutual acceptance,

clearly prevents either offeree from independently evaluating the settlement

offer.”); see also Chastain v. Chastain, 119 So. 3d 547, 550 (Fla. 1st DCA 2013)

(applying Gorka to invalidate a proposal for settlement that “did not expressly

require joint acceptance,” but was “clear . . . that there was one offer in the amount

of $5,002 and that the offer . . . was conditioned on joint acceptance”); Schantz v.

Sekine, 60 So. 3d 444, 446 (Fla. 1st DCA 2011) (finding proposal for settlement

invalid under Gorka where “[a]lthough not as direct as the wording of the

settlement offer in Gorka, the . . . language [stating that ‘Plaintiffs shall execute a

general release’ and that the proposal ‘shall be deemed rejected by the Plaintiffs’ if

not accepted] . . . conditions settlement on Appellants’ mutual acceptance of the

offer and joint action in accordance with its terms”).


                                          9
      Applying these principles to the instant case, we find the Proposal to be

invalid and unenforceable. Paragraph 2 of the Proposal requires that “Defendants

pay ACI the total amount of FIFTY THOUSAND DOLLARS ($50,000.00)” in

order to settle Atlantic Civil’s claim. Paragraph 3 reiterates that Atlantic Civil

demands “[t]he total amount of FIFTY THOUSAND DOLLARS ($50,000.00).”

The Proposal therefore seeks the single sum of $50,000.          And although the

Proposal apportions that total sum as a payment from Swift to Atlantic Civil in the

amount of $25,000 and a payment from Key Haven to Atlantic Civil in the amount

of $25,000, it does not state how much either party would be required to pay to

settle Civil Atlantic’s claim on his or its own. Additionally, the Proposal requires

that the “Defendants will execute a general release” and that the Proposal “shall be

deemed rejected unless Defendants accept it,” thereby conditioning settlement on

Swift and Key Haven’s “mutual acceptance of the offer and joint action in

accordance with its terms.” See Schantz, 60 So. 3d at 446. We therefore find that

the Proposal fails to meet Gorka’s requirement that both offerees—Swift and Key

Haven—be able to “independently evaluate or settle his or her respective claim by

accepting the proposal.”5    36 So. 3d at 647.     Accordingly, we hold that the

5 Atlantic Civil argues that Swift possessed the authority to bind Key Haven at
least to an amount of $25,000. The fact that Swift had full authority to do so,
however, does not relieve the Proposal of its conditional nature. Indeed, Swift’s
considerations in determining whether to settle the individual claims may be
different from those at issue in determining whether to settle on behalf of Key
Haven.

                                        10
Proposal is an invalid joint proposal for settlement, which cannot form the basis of

an award of attorneys’ fees under section 768.79 and pursuant to rule 1.442.6 See

Pacheco, 43 Fla. L. Weekly at D1086 (holding joint proposal for settlement that

was unclear as to how much each defendant would have to pay if either wanted to

settle and required “‘acceptance of this offer by the . . . DEFENDANTS’” to be

invalid under Gorka).

IV.   CONCLUSION

      “[P]roposals for settlement made under section 768.79 and rule 1.442 have .

. . generated significant ancillary litigation and case law.” Id. And although

expressly permitted under rule 1.442(c)(3), “joint proposals have become a trap for

the wary and unwary alike” under the principle set forth in Gorka. Id. at D1087.

For that reason, we once again take the opportunity to caution counsel in our

district to avoid joint proposals. See id.



6 We note that neither of the two exceptions to the rule articulated in Gorka is
applicable here. First, as we explained in Pacheco, Gorka “does not apply to a
proposal for settlement made by multiple offerors to a single offeree.” 43 Fla. L.
Weekly at D1086. In the instant case, the Proposal was made by a single offeror to
joint offerees. Thus, this exception does not apply. The second limitation on
Gorka applies when “a party is alleged to be solely vicariously, constructively,
derivatively, or technically liable” pursuant to rule 1.442(c)(4). Id. Atlantic Civil
does not assert that it is entitled to attorneys’ fees pursuant to subdivision (c)(4) of
rule 1.442 and a review of the Amended Complaint shows that Atlantic Civil does
not allege that Swift or Key Haven is solely vicariously liable. See id. (“The plain
language of rule 1.442(c)(4) limits its application to scenarios where a party’s
liability is alleged to be solely vicarious or otherwise indirect.”).

                                             11
      Because the Proposal deprived Swift and Key Haven of the ability to

independently evaluate and accept Atlantic Civil’s offer to settle its claims, we

hold that the Proposal is invalid under the dictates of Gorka. Accordingly, the trial

court’s order denying Atlantic Civil’s second renewed motion for attorneys’ fees is

affirmed.

      Affirmed.




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