SHOPPES OF LIBERTY CITY, LLC, APPELLANT,
v.
ADOLFO SOTOLONGO AND DAHYANNA SOTOLONGO, APPELLEES
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A defendant in a personal injury action appeals the trial court's denial of attorney's fees and costs under Florida's offer of settlement statute, arguing the trial court erroneously determined the settlement proposals were premature. The Third District Court of Appeal reverses, holding that the action was commenced when the defendant was first named in the amended complaint, not when the formal order amending the complaint was filed, and that even if the proposals were technically premature, such prematurity does not bar recovery of fees.
The court holds that the action was commenced on June 16, 2003, when the defendant was first named in the proposed amended complaint, making the October 22 proposals timely. Alternatively, even if the proposals were technically premature, a mere prematurity does not disentitle a defendant to recovery of attorney's fees and costs under the rule.
[1] An action is commenced for purposes of Florida Rule of Civil Procedure 1.442 when a defendant is first named in a proposed amended complaint, even if the formal order ame…
[2] Service of an amended complaint on a defendant occurs after the commencement of the action for purposes of Florida Rule of Civil Procedure 1.442.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“for purposes of this rule, the action was commenced against the appellant on June 16th — beyond the allegedly critical 90-day period before the proposals — when this defendant was first named in the proposed amended complaint”
Establishes that the commencement date for the 90-day requirement is when the defendant is first named in the amended complaint, not when the formal order is filed
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Join FLexlaw to unlock all legal intelligenceShoppes of Liberty City, LLC was added as a defendant when plaintiffs filed a motion to amend the complaint on June 16, 2003, which the court orally g…
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SCHWARTZ, Senior Judge.
A defendant in a personal injury action appeals from an order denying its application for attorney’s fees and costs pursuant to unaccepted proposals for settlement under section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442. Although it is not disputed that the circumstances otherwise entitled the appellant to these fees,1 the trial judge ruled that the proposals for settlement served on October 22, 2003, were fatally premature as filed “earlier than 90 days after the action [was] commenced” against the defendant. Fla. R. Civ. P. 1.442(b). This conclusion was based, in turn, on the determination that although this defendant was first named in the action when the plaintiffs filed a motion to amend the complaint to add the defendant in accordance with an attached third amended complaint on June 16th, and the court thereafter orally granted the motion on July 17th prior to service on defendant on July 22nd, the action was not commenced within the meaning of the rule until July 25th — 89 days before the proposals — when the formal order amending the complaint, which had been signed on July 24th, was filed with the clerk. We reverse for two separate reasons.
I.
First, appropriately applying Totura & Co. v. Williams, 754 So. 2d 671 (Fla. 2000), we conclude that, for purposes of this rule, the action was commenced against the appellant on June 16th — beyond the allegedly critical 90-day period before the proposals — when this defendant was first named in the proposed amended complaint. See also Outboard Marine Domestic Int’l Sales Corp. v. Fla. Stevedoring Corp., 483 So. 2d 823 (Fla. 3d DCA 1986) (action commenced for statute of limitations purposes when complaint was submitted to the clerk even though it was then returned to plaintiffs’ counsel because correct filing fee was not attached).
Furthermore, that the proposals were not premature is shown also by the fact that the defendant was served with the third amended complaint on July 22nd— still outside the 90-day period and days before the purely ministerial act of filing the formal order. It can hardly be correctly said that an action is not “commenced” until after its actual service. See Totura, 754 So. 2d at 671.
II.
Even if this were not true, we have squarely held in Kuvin v. Keller Ladders, Inc., 797 So. 2d 611 (Fla. 3d DCA 2001), that a mere prematurity of a defendant’s proposal for settlement does not disentitle it to recovery under the pertinent rule. As the appellees concede, the Kuvin case alone requires reversal. See also Byrne-Henry v. Hertz Corp., 927 So. 2d 66 (Fla. 3d DCA 2006); Swift v. Wilcox, 924 So. 2d 885 (Fla. 4th DCA 2006); Mills v. Martinez, 909 So. 2d 340 (Fla. 5th DCA 2005).2
Accordingly, the order under review is reversed with directions to award the appellant attorney’s fees and costs under the statute and rule.
Reversed and remanded.
. The proposals for settlement were for $900 to Adolfo Sotolongo and for $100 to Dahyan-na Sotolongo. The defendant won a jury ver-diet and ensuing judgment in its favor after trial.
. As to this holding, we repeat what was said in Kuvin:
While this situation may be strictly distinguishable from the plaintiffs offer involved in Grip [Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So. 2d 262 (Fla. 4th DCA 2000), review denied, 790 So. 2d 1102 (Fla.2001)], it is obvious that our approach to the issue is entirely contrary to that of the majority in Grip and entirely in accordance with Judge Farmer’s dissent. If this renders us in conflict with Grip, we are pleased to acknowledge it.
Kuvin, 797 So. 2d at 613 (footnote omitted); see also Nationwide Mut. Fire Ins. Co. v. Robinson, 851 So. 2d 888 (Fla. 4th DCA 2003), quashed on other grounds, 887 So. 2d 328 (Fla.2004).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Regions Bank v. Rhodes, 126 So. 3d 1259 (Fla. 4th DCA 2013)…endant’s settlement proposal. Regions relies on two Third District cases where the court held that the premature offers of judgment were harmless technical violations that did not invalidate the offers. See Shoppes of Liberty City, LLC v. Sotolongo, 932 So. 2d 468, 469 (Fla. 3d DCA 2006); Kuvin v. Keller Ladders, Inc., 797 So. 2d 611, 612-13 (Fla. 3d DCA 2001). However, the Third District’s focus on whether the violation of the rule may be harmless is contrary to the strict construction approach taken by the…1 / 2
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Design Home Remodeling Corp. v. Santana, 146 So. 3d 129 (Fla. 3d DCA 2014)…. 2d 796, 797 n. 1 (Fla. 3d DCA 1999) any “failure to follow [rule 1.442] must be considered merely a harmless technical violation which did not affect the rights of the parties.” Kuvin, 797 So. 2d at 613. Shoppes of Liberty City, LLC v. Sotolongo, 932 So. 2d 468 (Fla. 3d DCA 2006) is the second pre-Campbell case relied upon by Design Home. In Shoppes, this Court determined that the proposal for settlement was not premature. We held alternatively (and relying upon Kuvin), that even if the proposal was premat…
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Mainstream Am., Inc. v. Bankers Real Est. P'rs, Inc., 971 So. 2d 872 (Fla. 3d DCA 2007)…PER CURIAM. Affirmed. Shoppes of Liberty City, LLC v. Sotolongo, 932 So. 2d 468 (Fla. 3d DCA 2006); Friedman v. U.S. Home Corp., 452 So. 2d 1111 (Fla. 2d DCA 1984).…
Authorities Cited
- Mills v. Martinez, 909 So. 2d 340 (Fla. 5th DCA 2005)
- Totura & Co., Inc. v. Williams, 754 So. 2d 671 (Fla. 2000)
- Swift v. Wilcox, 924 So. 2d 885 (Fla. 4th DCA 2006)
- Outboard Marine Dom. Int'l Sales Corp. & Yatacha C.A. For Use & Benefit of Underwriters at Lloyds of London v. Fla. Stevedoring Corp., 483 So. 2d 823 (Fla. 3d DCA 1986)
- Byrne-Henry v. The HERTZ Corp. & Stella Chin, 927 So. 2d 66 (Fla. 3d DCA 2006)
- Deshon Knight v. State, 788 So. 2d 262 (Fla. 4th DCA 2000)
- Grip Dev., Inc. v. Coldwell Banker Residential Real Est., Inc., 788 So. 2d 262 (Fla. 4th DCA 2000)
- Nationwide Mut. Fire Ins. Co. v. Robinson, 851 So. 2d 888 (Fla. 4th DCA 2003)
- Kuvin v. Keller Ladders, Inc., 797 So. 2d 611 (Fla. 3d DCA 2001)
- Robinson v. Nationwide Mut. Fire Ins. Co., 887 So. 2d 328 (Fla. 2004)