EDWIN N. GUNN, APPELLANT/CROSS-APPELLEE,
v.
ENSO DEPAOLI, APPELLEE/CROSS-APPELLANT
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In this appeal, the court reversed an award of attorney's fees and costs to the prevailing defendant under Florida's offer of judgment statute, holding that such fees are only available when a judgment is rendered in favor of the plaintiff, not when a case results in a defense verdict.
A defendant is not entitled to an award of attorney's fees and costs pursuant to section 768.79 unless there is a judgment rendered in favor of the plaintiff. The trial court erred in awarding such fees where the jury returned a defense verdict.
[1] A defendant is not entitled to an award of attorney's fees and costs pursuant to an offer of judgment unless there is a judgment rendered in favor of the plaintiff.
[2] A defense verdict in favor of a defendant does not constitute a judgment rendered in favor of the plaintiff for the purposes of awarding attorney's fees under section 768…
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Join FLexlaw to unlock all legal intelligence“a defendant is not entitled to an award of attorney's fees and costs pursuant to an offer of judgment, unless there is a judgment rendered in favor of the plaintiff”
This statement establishes the core holding that section 768.79 attorney's fees require a judgment in favor of the plaintiff, not merely a defense verdict.
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Join FLexlaw to unlock all legal intelligenceGunn filed suit against DePaoli seeking damages for malicious prosecution and defamation. Prior to trial, DePaoli filed an offer of judgment for $1 pl…
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SCHOONOVER, Judge.
The appellant, Edwin N. Gunn, challenges the attorney’s fees and costs awarded to the appellee, Enso DePaoli, pursuant to section 768.79, Florida Statutes (1987). The appellee has filed a cross-appeal challenging the manner in which the attorney’s fees were calculated.
The appellant filed an action against the appellee seeking damages for malicious prosecution and defamation. Prior to trial, the appellee, pursuant to section 768.79 filed an offer of judgment in the amount of $1 plus taxable costs. The appellant did not respond to the offer. After the jury returned a defense verdict, the appellee moved for attorney’s fees and costs pursuant to the above-mentioned statute. At the conclusion of the hearing on the appellee’s motion, the court granted the motion and entered an order awarding the appellee the sum of $4200 attorney’s fees and costs in the amount of $667. The appellant filed a timely notice of appeal and the appellee filed a cross-appeal contesting the amount of the attorney’s fees award.
Although the appellee was entitled to an award of costs as the prevailing party under section 57.041, Florida Statutes (1987), he was not entitled to receive costs or attorney’s fees under the provisions of section 768.79. This court recently, held in Kline v. Publix Supermarkets, Inc., Nos. 89-00345, 89-01182, — So. 2d - (Fla. 2d DCA May 9, 1990), that a defendant is not entitled to an award of attorney’s fees and costs pursuant to an offer of judgment, unless there is a judgment rendered in favor of the plaintiff. See also Oriental Imports, Inc. v. Alilin, 559 So. 2d 442 (Fla. 5th DCA 1990); Makar v. Investors Real Estate Management, Inc., 553 So. 2d 298 (Fla. 1st DCA 1989). Since the appellant, plaintiff at the trial level, did not receive a favorable verdict, the court erred in awarding attorney’s fees and costs to the appellee pursuant to section 768.79. We, accordingly, reverse and remand for the purpose of the entry of an order denying the appellee’s motion for attorney’s fees and for the entry of a proper order assessing costs pursuant to section 57.041.
Because of our decision on the appeal, the appellee’s cross-appeal has become moot.
Reversed and remanded with instructions.
CAMPBELL, C.J., and PATTERSON, J., concur.
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Rondoe Marie Williams v. Jeannine O. Brochu, 578 So. 2d 491 (Fla. 5th DCA 1991)…onstruction Corp. v. The State Exchange Bank, 102 So. 2d 288 (Fla.1958). . See and compare Oriental Imports, Inc. v. Alilin, 559 So. 2d 442 (Fla. 5th DCA 1990); Kline v. Publix Supermarkets, Inc., 568 So. 2d 929 (Fla. 2d DCA 1990); Gunn v. DePaoli, 562 So. 2d 427 (Fla. 2d DCA 1990); Makar v. Investors Real Estate Management, Inc., 553 So. 2d 298 (Fla. 1st DCA 1989), Rabatie v. U.S. Security Ins. Co., 14 F.L.W. 1753 (Fla. 3d DCA 1989) (on rehearing). See also the amendment to section 768.79, Florida Statutes,…
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Winn Dixie Stores, Inc. v. Elbert, 590 So. 2d 15 (Fla. 4th DCA 1991)…nt in favor of the plaintiff to trigger its enforcement. Mujica v. Turner, 582 So. 2d 24 (Fla. 3d DCA 1991); Luizza v. Yaeger, 571 So. 2d 600 (Fla. 2d DCA 1990); Kline v. Publix Supermarkets, Inc., 568 So. 2d 929 (Fla. 2d DCA 1990); Gunn v. DePaoli, 562 So. 2d 427 (Fla. 2d DCA 1990); Oriental Imports, Inc. v. Alilin, 559 So. 2d 442 (Fla. 5th DCA 1990); Makar v. Investors Real Estate Management, Inc., 553 So. 2d 298 (Fla. 1st DCA 1989). Therefore, it cannot serve as a basis for an award of attorney’s fees in t…
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Parvin Wright v. Caruana, 640 So. 2d 197 (Fla. 3d DCA 1994)…utes Section 57.041(1). See Liebling v. Florida Energy Management, Inc., 619 So. 2d 441, 443 (Fla. 2d DCA 1993); Reinhardt v. Bono, 564 So. 2d 1233, 1235 (Fla. 5th DCA 1990); Luizza v. Yaeger, 571 So. 2d 600, 601 (Fla. 2d DCA 1990); Gunn v. DePaoli, 562 So. 2d 427, 427-28 (Fla. 2d DCA 1990); Bridges v. Newton, 556 So. 2d 1170, 1171 (Fla. 3d DCA 1990); Oriental Imports, Inc. v. Alilin, 559 So. 2d 442, 443 (Fla. 5th DCA 1990). Our disposition of the § 768.79 issue makes it clear that on remand, the trial court…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Oriental Imports, Inc. v. Rosario Alilin and E. Roger Alilin, M.D., 559 So. 2d 442 (Fla. 5th DCA 1990)
- Makar v. Invs. Real Est. Mgmt., Inc., 553 So. 2d 298 (Fla. 1st DCA 1989)