ROBERT P. STEPHENSON, APPELLANT,
v.
HOLIDAY RAMBLER CORPORATION, APPELLEE
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The Fourth District Court of Appeal reversed an award of attorney's fees to the defendant under Florida's offer of judgment statute (§ 768.79), holding that when an offer of judgment is made inclusive of the opposing party's attorney's fees, the offeror must demonstrate the required 25% disparity exists within the offer amount exclusive of a reasonable fee.
Where an offer of judgment is made inclusive of fees in good faith, the offeror has a burden to demonstrate that the 25% required disparity exists within the offer exclusive of a reasonable fee. On remand, the trial court should calculate reasonable attorney's fees up to the time of offer, add this to the final judgment, and only award defendant's fees under § 768.79 if this sum is more than 25% less than the offer.
[1] An offer of judgment made inclusive of the offeree's attorney's fees requires the offeror to demonstrate that the 25% disparity exists between the offer and the judgment,…
[2] When an offer of judgment is made inclusive of attorney's fees, the court must calculate the offeree's reasonable attorney's fees incurred up to the time of the offer and…
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Join FLexlaw to unlock all legal intelligence“However, we conclude that where an offer is made inclusive of fees, in good faith as found here, the offeror also has a burden to demonstrate that the 25% required disparity exists within the offer exclusive of a reasonable fee.”
Establishes the core holding that when an offer of judgment includes the other side's fees, the offeror must show the 25% disparity exists within the offer itself, not by adding fees to the final judgment.
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Join FLexlaw to unlock all legal intelligenceAppellee made an offer of judgment to Appellant for $10,000 inclusive of attorney's fees after more than a year of litigation. Plaintiff's counsel had…
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STONE, Chief Judge.
We reverse an order awarding attorney’s fees to Appellee/Defendant, pursuant to section 768.79, Florida Statutes, based on Appellant’s rejection of an offer of judgment. Ap-pellee initially had made an offer of judgment to pay Appellant $10,000 inclusive of attorney’s fees. The parties later settled and a judgment was entered for $4,450, exclusive of fees. The parties agreed that both sides could still seek an award of attorney’s fees under section 768.79. The underlying action was brought pursuant to the Magnuson-Moss Warranty Act, itself containing a fee shifting provision recognizing that a prevailing plaintiff would ordinarily recover costs and attorney’s fees.
The $10,000 offer was made after more than a year of litigation by which time Plaintiffs counsel claims to have incurred approximately 58 billable hours, which Appellant asserts would have resulted in his incurring a $16,500 fee. The basis for the trial court’s decision awarding fees to the defense was a finding that the actual recovery of $4,450 was more than 25% less than the $10,000 offer. We have recognized that offers of judgment may be made inclusive of the other side’s prevailing party attorney’s fees. Stewart Select Cars, Inc. v. Moore, 619 So. 2d 1037 (Fla. 4th DCA 1993).
However, we conclude that where an offer is made inclusive of fees, in good faith as found here, the offeror also has a burden to demonstrate that the 25% required disparity exists within the offer exclusive of a reasonable fee. We have considered Mincin v. Short, 662 So. 2d 1323 (Fla. 2d DCA 1995), where the plaintiff rejected a $10,000 offer inclusive of fees and costs, and the court concluded, as did the trial court here, that the prevailing plaintiffs fees and costs should not be added to the $5,000 verdict in determining whether the offer exceeds the judgment by requisite 25%. We acknowledge that this opinion may conflict, at least in part, with Mincin.
We note, however, that Mincin apparently did not involve an offer under a fee shifting statute.
On remand, the court should calculate Plaintiff’s reasonable attorney’s fees up to the time of the offer, and then add this amount to the final judgment. If this amount is more that 25% less than the offer, then Defendant should be awarded attorney’s fees under § 768.79, assuming the trial court finds that this offer was made in good faith. Otherwise, the trial court should consider Plaintiff’s claim for attorney’s fees as the prevailing party under the Magnuson-Moss Warranty Act.
GROSS, J., and DAKAN, STEPHEN L„ Associate Judge, concur.
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White v. Steak & ALE OF Fla., Inc., 816 So. 2d 546 (Fla. 2002)…eSalvo v. Scottsdale Ins. Co., 705 So. 2d 694 (Fla. 1st DCA 1998), review granted, 717 So. 2d 537 (Fla. May 20, 1998). Because Section 768.79 serves the same purpose as these statutes, we follow the same reasoning. See Stephenson v. Holiday Rambler, 709 So. 2d 139 (Fla. 4th DCA 1998). 721 So. 2d at 411-12 (emphasis added) (footnote and some citations omitted). In the Third District, offers and demands for judgment under section 768.79 must include costs. See Clinica Lourdes, Inc. v. Miro, 713 So. 2d 1062 (Fl…1 / 2
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Leyton F. Perez v. Cir. City Stores, Inc., 721 So. 2d 409 (Fla. 3d DCA 1998)…eSalvo v. Scottsdale Ins. Co., 705 So. 2d 694 (Fla. 1st DCA 1998), review granted, 717 So. 2d 537 (Fla. May 20, 1998). Because Section 768.79 serves the same purpose as these statutes, we follow the same reasoning. See Stephenson v. Holiday Rambler, 709 So. 2d 139 (Fla. 4th DCA 1998). We, therefore, interpret the statutory term “the net judgment entered” to include a prevailing plaintiffs pre-demand costs. Because all of the plaintiffs costs were incurred before he made his demand in this case, all of his co…
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Oglesby-Dorminey v. Lucy Ho's Restaurant/Lucy Ho's Bamboo Garden, Inc., 815 So. 2d 749 (Fla. 1st DCA 2002)…hite v. Steak & Ale, 816 So. 2d 546, 551 (Fla.2002); Perez v. Circuit City Stores, Inc., 721 So. 2d 409, 410-11 (Fla. 3d DCA 1998); see also Herzog v. K-Mart Corp., 760 So. 2d 1006, 1009 n. 3 (Fla. 4th DCA 2000); Stephenson v. Holiday Rambler Corp., 709 So. 2d 139, 140 (Fla. 4th DCA 1998). . Gemini argues that it was common practice, nevertheless, to delay filing a motion for attorney’s fees and costs until the precise amount of costs was known. But the record provides no support for this contention. Nor is…
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
- Mincin v. Short, 662 So. 2d 1323 (Fla. 2d DCA 1995)
- Stewart Select Cars, Inc. v. Moore, 619 So. 2d 1037 (Fla. 4th DCA 1993)