COAST TO COAST REAL ESTATE, INC., APPELLANT,
v.
WATERFRONT PROPERTIES, INC., APPELLEE

Fla. 4th DCA | 1996-02-28
No. 95-0205
GUNTHER, C.J., and GLICKSTEIN, J., concur.
668 So. 2d 686 Florida District Court of Appeal, Fourth District (1996) Caution
Cited by 12 cases

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Holding

The court held that the offer of judgment statute applies to actions for damages, even if framed as a declaratory action or interpleader, and that the defendant's offer met the statutory threshold for attorney's fees.


Headnotes

[1] A mislabeling of an "offer of judgment" as a "demand for judgment" does not defeat the substance of the offer if it otherwise complies with statutory requirements.

[2] The offer of judgment statute applies to actions for damages, even if the procedural device employed is a declaratory action or an interpleader action.

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Facts & Procedural History

Coast to Coast Real Estate (Coast) sued Waterfront Properties (Waterfront) for breach of contract after a property sale, seeking damages. Coast made a…

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Opinion of the Court
DELL, Judge.

DELL, Judge.

Coast to Coast Real Estate, Inc. (Coast) appeals the trial court’s denial of attorney’s fees under section 768.79, Florida Statutes (1993). We reverse and remand.

Appellee Waterfront Properties, Inc. (Waterfront) sought declaratory relief against Coast and others to determine entitlement to a real estate commission arising out of the sale of certain real property. Waterfront also sought supplemental relief in the form of monetary damages against Soukup Design Homes, Inc. (Soukup)1, the owner of the property at issue.

Coast, the broker who introduced the buyers to the Soukup property, filed a counterclaim against Waterfront requesting damages for breach of contract due to alleged reliance on the Regional Multiple Listing Service, Inc. (MLS) and violations of the MLS rules and regulations. In an amended counterclaim, Coast added a second count for damages for breach of contract due to alleged reliance upon oral representations concerning the fisting of the subject property with the MLS. Coast alleged that Waterfront listed the property on MLS and represented to Coast that Waterfront had an exclusive right to sell under a fisting agreement with Soukup. Coast further alleged that in reliance on Waterfront’s representations and the MLS fisting, Coast introduced the buyers to the property who subsequently entered into a purchase and sale agreement and purchased the property. Coast claimed that Soukup negotiated directly with the buyers because the fisting agreement between Waterfront and Soukup had expired before Coast learned of the property from Waterfront. Coast stated that Waterfront breached its agreement with Coast by failing to have a listing agreement in place as represented by the MLS listing.

Before trial, Coast served Waterfront with an “offer of judgment” in which Waterfront offered to settle for the sum of $14,500. Waterfront responded with an offer of judgment in the amount of $1,000. After a nonjury trial, the trial court found in favor of Coast and awarded Coast damages in the amount of $16,500 and $3,035.04 in prejudgment interest. The order denying rehearing and clarifying the amended final judgment stated:

4) The Court’s decision was rendered pursuant to the Declaratory Relief Action wherein the rights and obligations of the various parties was [sic] declared by the Court;

5) Coast to Coast, under the Declaratory Action was entitled to receive damages in the amount indicated on the basis Waterfront failed to procure the listing agreement that should have been in effect when Coast to Coast’s salesperson showed the property to the [buyers];

Coast moved for attorney’s fees pursuant to section 768.79, Florida Statutes (1993) based on its “offer of judgment.” In denying Coast’s motion for attorney’s fees, the trial court concluded that the judgment was rendered in a declaratory action and thus the offer of judgment statute was not applicable.

Waterfront points out that Coast’s offer of judgment was actually a demand for judgment by Coast as a counterplaintiff. However, Waterfront recognizes that the law is well settled that the mistitling in the caption of a document or pleading will not defeat the true character of a document or pleading and substance over form prevails. See, e.g., Florida Fuel Oil, Inc. v. Springs Villas, Inc., 95 So. 2d 581, 583 (Fla.1957). Coast does not dispute Waterfront’s assertion that it mislabeled its offer to settle. We have reviewed the substance of Coast’s “offer of judgment” and conclude that it complies with the demand for judgment provision as set forth in section 768.79, Florida Statutes (1993).

In V.I.P. Real Estate v. Florida Ex. Realty, 650 So. 2d 199, 201 (Fla. 4th DCA 1995), three real estate brokers claimed entitlement to an interplead real estate commission. The brokers argued that section 768.79, Florida Statutes (1993) did not apply to an inter-pleader action as it could only be applied in actions for damages. This court agreed with the argument that the statute applies only in actions for damages, but held that the statute may be applicable in an interpleader action:

The real issue in this case is entitlement to a real estate commission. In essence, what was sought was damages for breach of contract. The fact that the procedural device employed was an interpleader action does not make it any less an action for damages.

V.I.P, 650 So. 2d at 201.

Similarly, the real issue in this case centered on entitlement to a real estate com mission and Coast’s claim for damages for breach of contract. The trial court awarded damages to Coast based on its entitlement to a commission for the sale of the Soukup property. Therefore, we hold, as this court did in V.I.P., this case was for damages and section 768.79, Florida Statutes (1993) applies to this action.

We also hold that Coast’s demand for judgment met the statutory threshold for entitlement to recover attorney’s fees under the statute. Coast’s written offer of judgment was for $14,500 and the amended final judgment awarded a total of $19,535.04.2 The total award of more than $18,125, which is 125% of the amount offered by Coast, entitles Coast to the application of the statute and an award of fees and costs against Waterfront. See Beyel Brothers Crane and Rigging Co. of So. Fla., Inc. v. Ace Transp., 664 So. 2d 62 (Fla. 4th DCA 1995); Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993).

We reverse and remand for an evidentiary hearing to award attorney’s fees as provided in section 768.79, Florida Statutes (1993).

REVERSE AND REMAND.

GUNTHER, C.J., and GLICKSTEIN, J., concur. . Soukup is not a party to this appeal.

. Prejudgment interest is properly included as an element of damages. Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212 (Fla.1985).


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Citator

Cited By

  • Nelson v. THE Marine Grp. OF Palm Beach, Inc., 677 So. 2d 998 (Fla. 4th DCA 1996)
    …eturn. As evidenced both by the real issues in dispute and the counterclaim which clearly framed this case as an action for damages, the offer of judgment statute properly applied. See Coast to Coast Real Estate, Inc. v. Waterfront Properties, Inc., 668 So. 2d 686 (Fla. 4th DCA 1996); V.I.P. Real Estate Corp. v. Florida Executive Realty Management Corp., 650 So. 2d 199 (Fla. 4th DCA 1995). The testimony of Theresa Bennett, an associate with the law firm who performed the majority of the representation, estab…
  • DiPOMPEO Constr. Corp. v. Kimmel & Assocs., Inc., 916 So. 2d 17 (Fla. 4th DCA 2005)
    …408. Here the real issue in the case involved damages — whether DiPompeo owed the $20,000 commission to Kimmel — so that the offer of judgment statute applied. This case is similar to Coast to Coast Real Estate, Inc. v. Waterfront Properties, Inc., 668 So. 2d 686 (Fla. 4th DCA 1996), and Nelson v. Marine Group of Palm Beach, Inc., 677 So. 2d 998 (Fla. 4th DCA 1996). Both cases began as declaratory judgment actions; in both cases, we held that an award of attorney’s fees under section 768.79 was proper, becau…
  • Burtman v. Porchester Holdings, Inc., John H. Faro, P.A., 680 So. 2d 631 (Fla. 4th DCA 1996)
    …(Fla. 4th DCA 1995), we recognized that section 768.79 applies to an inter-pleader action where the issue is which of competing brokers is entitled to the inter-pleaded funds. See also Coast to Coast Real Estate, Inc. v. Waterfront Properties, Inc., 668 So. 2d 686 (Fla. 4th DCA 1996). Similarly, the Third District affirmed an award of fees under section 768.79 where there were competing claims by a buyer and seller. Press v. Jordan, 670 So. 2d 1016 (Fla. 3d DCA 1996). Although the connection between the speci…

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