Florida Rule of Civil Procedure 1.442 & Appellate Attorneys Fees – September 21,2016 Second DCA Appeal

Can I recover appellate attorneys fees? What is an offer of judgment? When is a proposal of settlement compliant with Florida Rule of Civil Procedure 1.442?

Appellate Attorneys Fees & Probate Lawyers

• West Palm Beach litigators know that, in Florida, parties to litigation may be responsible for paying the other side’s attorneys fees.
• Florida has “fee shifting” statutes.
• Florida statute 768.79 says, among other things, the following:  “…. 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…..”
• Does this Florida fee shifting statute apply to everyone and every case?
• Appellate attorneys know that it does not.
• Plaintiffs need to be mindful of who they are suing, including whether the defendant has governmental immunity or whether or not any judgment (after trial) can be reduced or not–or whether a “judgment” is even “recovered.”
• Even winning may not entitle you to attorneys fees if the “offer” and the “judgment” doesn’t comply with the statute, and as courts have interpreted the statute.

Saterbo v. Markuson

• This was a September 21, 2016 Second DCA opinion.
• Here, the Florida trial court did not grant Markuson’s request for appellate attorneys fees.
• The court determined that Markuson’s joint proposal for settlement failed to strictly comply with Florida Rule of Civil Procedure 1.442.
• The trial court also determined that the proposal was “ambiguous and lacked particularity because it failed to account for the fact that one of the Saterbo’s liability was capped pursuant to a statute.
• To read the entire case and to learn more about proposals for settlement in probate litigation, click here.