DICKIE E. MURPHY AND MARSHA MURPHY, APPELLANTS,
v.
JUDY D. TUCKER, APPELLEE
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In this appeal of a final judgment against the Murphys, the court affirmed the judgment on the merits but reversed the award of attorney's fees to the opposing party because the offer of judgment failed to comply with statutory requirements under section 768.79, Florida Statutes.
The trial court did not err in entering the final judgment against the Murphys, but it erred in awarding attorney's fees because the offer of judgment failed to comply with the mandatory requirements of section 768.79, which requires that an offer state it is being made pursuant to that section.
[1] Statutory time requirements for offers of judgment are procedural and fall within the rule-making authority of the Supreme Court.
[2] A statute that attempts to alter procedural rules governing offers of judgment infringes upon the Supreme Court's exclusive rule-making authority.
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Join FLexlaw to unlock all legal intelligence“Section 768.79 requires that an offer be in writing and 'state that it is being made pursuant to this section.'”
Establishes the mandatory statutory language requirement that Tucker's offer failed to satisfy
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Join FLexlaw to unlock all legal intelligenceThe Murphys were defendants against whom a final judgment was entered in favor of Judy D. Tucker. Tucker sought attorney's fees and costs based on an …
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DAKAN, STEPHEN L., Associate Judge.
The Murphys, against whom the final judgment was entered in this case, have appealed that judgment and the lower court’s award of attorney’s fees to Judy Tucker.
We hold that the trial court did not err in applying the provisions of section 95.11(3), Florida Statutes (1995), to the facts of the case. See Mason v. Yarmus, 483 So. 2d 832 (Fla. 2d DCA 1986).
Accordingly, we affirm the final judgment in favor of Ms. Tucker.
We hold, however, that the trial court erred in entering its order granting Ms. Tucker’s motion for attorney’s fees and costs, based on her offer of judgment. The offer of judgment was purportedly made pursuant to section 44.102, Florida Statutes (1995). The offer did not reference section 768.79, Florida Statutes (1995). In Knealing v. Puleo, 675 So. 2d 593 (Fla.1996), the Florida Supreme Court declared section 44.102 unconstitutional. In doing so, it noted that section 44.102 did not provide a substantive basis for an award of fees; it merely attempted to change the time periods for offers served after mediation. 675 So. 2d at 596.
Moreover, the language of the statute itself contemplates that the offer or demand for judgment would be made under section 768.79.1 Ms. Tucker’s only substantive basis for recovering attorney’s fees would, therefore, have been pursuant to section 768.79.
Section 768.79 requires that an offer be in writing and “state that it is being made pursuant to this section.” § 768.79(2)(a), Fla. Stat. (1995) (emphasis supplied). Ms. Tucker’s offer does not contain this statement. Statutes authorizing attorney’s fees must be strictly construed, and this court has no basis to conclude another construction is warranted here. See Pippin v. Latosynski, 622 So. 2d 566 (Fla. 1st DCA 1993) (because offer did not reference section 768.79, offeror had not made a valid offer under that section); Wright v. Caruana, 640 So. 2d 197 (Fla. 3d DCA 1994) (offeror who intends to rely on a statute must reference the statute in the offer).
We affirm the final judgment entered in this ease. We reverse that part of the order granting the motion for attorney’s fees and costs that awards attorney’s fees to Ms. Tucker. We affirm the portion of that order that awards costs.
Affirmed in part, reversed in part.
FULMER, A.C.J., and WHATLEY, J., concur. . "When an action is referred to mediation by court order, the time periods for responding to an offer of settlement pursuant to s. 45.061, or an offer or demand for judgment pursuant to s. 768.79, respectively, shall be tolled _ § 44.102(6)(a), Fla. Stat. (1995) (emphasis supplied).
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Jewell F. Raimondo v. Am. United Life Ins. Co., 728 So. 2d 251 (Fla. 5th DCA 1998)…PER CURIAM. AFFIRMED. See McMullen Oil Co., Inc. v. ISS Int’l Service System, Inc., 698 So. 2d 372 (Fla. 2d DCA 1997); Murphy v. Tucker, 689 So. 2d 1164 (Fla. 2d DCA 1997). DAUKSCH, GOSHORN and THOMPSON, JJ., concur.…
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McMULLEN OIL Co., Inc. v. ISS Int'l Serv. Sys., Inc., 698 So. 2d 372 (Fla. 2d DCA 1997)…referred merely to “all applicable Florida statutes and the Florida Rules of Civil Procedure.” This was not sufficient. Statutes authorizing awards of attorney’s fees are in derogation of common law, and must be strictly construed. Murphy v. Tucker, 689 So. 2d 1164 (Fla. 2d DCA 1997); Ciaramello v. D'Ambra, 613 So. 2d 1324, 1325 (Fla. 2d DCA 1991), review denied, 599 So. 2d 654 (Fla.1992). An offer of judgment fails to fall within the offer of judgment statute where it fails to expressly state that it was made…1 / 2
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Clivens Goldman v. Campbell, 920 So. 2d 1264 (Fla. 4th DCA 2006)…ere failure to state the statute is fatal to an award of fees otherwise created by a qualifying offer and rejection. See e.g. McMullen Oil Co., Inc. v. ISS International Service System, Inc., 698 So. 2d 372, 373 (Fla. 2d DCA 1997); Murphy v. Tucker, 689 So. 2d 1164, 1165 (Fla. 2d DCA 1997); and Pippin v. Latosynski, 622 So. 2d 566, 569 (Fla. 1st DCA 1993). To those I would add our own decisions in Chip Development; Jaffrey v. Baggy Bunny, Inc., 733 So. 2d 1140, 1141-42 (Fla. 4th DCA 1999); and Cohen v. Arvin,…1 / 3
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Knealing v. Puleo, 675 So. 2d 593 (Fla. 1996)
- Pippin v. Latosynski, 622 So. 2d 566 (Fla. 1st DCA 1993)
- Parvin Wright v. Caruana, 640 So. 2d 197 (Fla. 3d DCA 1994)
- Mason v. Yarmus, 483 So. 2d 832 (Fla. 2d DCA 1986)