Florida Offer of Judgment Opinion from 4th DCA

Florida’s 4th District Court of Appeal issued a very important Florida attorneys fees opinion.  IIt involved the so called Offer of Judgment rule. You should read MYD Marine Distributor, Inc. v. International Paint Ltd..  It held that Florida’s offer of judgment statute, 768.79, may be limitedly available or applicable in cases where monetary, and non-monetary, damages are both sought.

Florida Law 768.79

• BUT, be careful.
• Any offer of judgment presented during litigation must be specifically limited to only the monetary damages which are sought, and, the proposal (or offer) should specifically exclude any non-monetary claims.
• In other words, at least in the 4th DCA, you may use 768.79 to attempt to settle monetary claims, but not nonmonetary claims–even when both are sought. (Florida Statute 768.79 specifically speaks to “damages.”)
• Since the payment of attorneys fees is contrary to the American rule, attorneys fees statutes in Florida are “strictly construed.”
• This has caused some confusion for Florida litigators, and has created much work for appellate attorneys.
• This is a very important opinion for all Florida trial attorneys, and those that engage in business litigation, including probate litigators. Why?

“Offer of Judgment” Law

• For two reasons: First, Florida Statute Section 768.79 is an important “fee-shifting” statute, which may permit litigants to seek and obtain attorneys fees in Florida lawsuits.
• As I have written, and spoken about, many times, probate and business litigation is so expensive, that attorneys fees are an important “X factor” in not only determining whether to litigate, but also in any risk/reward, “out of pocket” or damage calculation.
• We know that there are many fee shifting statutes in the Florida Probate Code and also the Florida Trust Code.
• But now there is a clearer path to using 768.79 in civil litigation, and for such things as fraud, breach of fiduciary duty, conversion and breach of contract.
• One major legal trend is growth in probate litigation, especially in Florida.
• Many Florida probate litigation law firms not only seek declaratory or equitable relief, but, now also bring many tort claims, such as breach claims, or tortious interference with an inheritance or expectancy.
• In this 4th DCA opinion, which is NOT a probate appeal in Florida, but rather is a business lawsuit appeal, there were allegations of conspiracy, breach of contract, and price fixing.  A permanent injunction was also sought.

Does Proposal for Settlement Law Help in Probate?

• Second, the law for proposals for settlement, or offers of judgment, was not clear.  Fla. Statute 768.79 could be used to settle monetary claims in a lawsuit.  But what if there was also a cause of action for non-monetary relief?  Like injunctive relief, a temporary restraining order, or equitable relief?
• In fact, the Florida Supreme Court, in Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362 (Fla. 2013), left the legal “door open” .   DCAs might be able to determine whether an offer of judgment pursuant to 768.79 purporting to resolve only monetary claims, in a suit also containing a nonmonetary cause of action, is valid.
• The 4th District Court of Appeal handles appeals for Palm Beach, Broward and Martin Counties.  Attorneys can use the “offer of judgment statute”, 768.79, to attempt to resolve matters.  And also recover attorneys fees, for monetary claims, in a lawsuit where nonmonetary relief is also sought.
• Florida statute 768.79 is often referred to as the “offer of judgment” statute, and permits the recovery of attorneys fees when certain offers to settle a matter are refused, or rejected, and then the case or legal issue is “lost” by the party who rejected the offer (under certain parameters).
• For a complete copy of the offer of judgment statute in Florida, you can click on this link: CLICK HERE
• For a complete copy of this important Florida 4th DCA offer of judgment opinion, click here: .
• So, if you are involved in a Florida probate lawsuit where there are both monetary claims and nonmonetary claims, don’t use the offer of judgment statute to try to resolve all of the claims.
• One important “take away” from this MYD Marine Distributor opinion: in considering whether an offer of judgment is valid or not, courts should look to the “true relief” which is really sought.
• Yes, there is now a “true relief” analysis which may be conducted by a court to determine whether an offer of judgment is valid in a case containing both monetary and nonmonetary causes of action.
• Did you file for declaratory relief under Florida Chapter 86 and also bring a cause of action for damages?
• Florida courts will look behind the procedural vehicle to discern what “true relief” is really sought in the litigation.
• Some litigators in Florida, in the past, most likely included nonmonetary claims with a damage lawsuit to try to avoid anticipated offers of judgment under 768.79.
• For another FREE LEGAL COMMENTARY on the proposal for settlement issue, CLICK HERE.
• Now, the path for trial attorneys and estate litigators in Florida to use this fee shifting statute, and the offer of judgment rule, is much clearer: at least in Palm Beach litigation circles.