TRACE ELEMENTS, INC.

v.

NADJA MACKENSEN, ET AL.

Supreme Court of Florida

No. SC2024-1274

TRACE ELEMENTS, INC., Petitioner,

vs.

NADJA MACKENSEN, et al., Respondents.

July 2, 2026

MUÑIZ, J.

Florida Rule of Civil Procedure 1.442 governs “all proposals for settlement authorized by Florida law,” including those made under the offer of judgment statute, section 768.79. Rule 1.442(c)(3) addresses joint proposals for settlement, that is, proposals made by or to multiple parties. It says that "[a] joint proposal must state the amount and terms attributable to each party.” In the decision under review, the Fourth District Court of Appeal held that this apportionment rule does not apply to a “joint proposal regarding a unified, single claim.” Mackensen v. Trace Elements, Inc., 388 So. 3d 815, 817 (Fla. 4th DCA 2024). That holding expressly and directly conflicts with the decision of the Second District Court of Appeal in Cobb v. Durando, 111 So. 3d 277 (Fla. 2nd DCA 2013). Consistent with our precedents, which mandate strict enforcement of the rule 1.442(c)(3) apportionment requirement, we now quash the Fourth District's decision below and approve the Second District's decision in Cobb.

I

Wolfgang and Nadja Mackensen, a married couple, contracted with professional design company Trace Elements to oversee renovations of their vacation rental property in Vero Beach. After Trace Elements prematurely terminated performance, the Mackensens sued for breach of contract and unjust enrichment. The company countersued for breach of contract and tortious interference with a business relationship.

Before trial, the Mackensens served a proposal for settlement¹ to Trace Elements, stating they were willing to accept a lump sum

1. As we will explain, the Mackensens eventually sought attorney's fees under section 768.79, Florida Statutes. While section 768.79 uses the term “demand for judgment” to refer specifically to a settlement offer made by a plaintiff to a defendant,

of $10,000 in full settlement of the action. In relevant part, their proposal said:

The Plaintiffs/Counter-Defendants offer to accept a total sum of TEN THOUSAND DOLLARS and 00/100 ($10,000.00) from the Defendant/Counter-Plaintiff in full settlement of this action and, upon acceptance and clearance of the payment, the Plaintiffs/Counter- Defendants will file a voluntary dismissal, with prejudice, of the Complaint filed against the Defendant/Counter- Plaintiff and the Defendant/Counter-Plaintiff will file a voluntary dismissal, with prejudice, of the Countercomplaint filed against the Plaintiffs/Counter- Defendants.

Mackensen, 388 So. 3d at 817.

Trace Elements rejected the proposal, the case went to trial, and the jury ultimately awarded the Mackensens $41,273.70 on their breach of contract claim.² The Mackensens moved for attorney's fees and costs under section 768.79. But the trial court denied the motion after concluding that their settlement proposal was invalid for failure to comply with rule 1.442(c)(3)'s rule 1.442 refers to a settlement offer made by either a plaintiff or a defendant as a “proposal for settlement.” This opinion will use the term “proposal for settlement" to refer to the Mackensens' offer.

2. Trace Elements received nothing on its competing breach of contract claim, and the trial court granted the Mackensens a directed verdict on Trace Elements' claim for tortious interference with a business relationship.

apportionment requirement.

The Mackensens appealed to the Fourth District, which reversed and remanded for an award of attorney's fees. Id. at 816. The district court acknowledged that rule 1.442(c)(3) requires joint proposals to state the amount and terms attributable to each party. Id. at 816-17. Nevertheless, it held that the Mackensens’ settlement proposal “was a joint proposal regarding a unified, single claim, which did not require apportionment to comply with rule 1.442." Id. at 817.

The Fourth District's decision expressly and directly conflicts with the Second District Court of Appeal's decision in Cobb. There, married homeowners served an unapportioned settlement proposal to a roofing contractor, seeking to settle their unified, single breach of contract claim. 111 So. 3d at 277. The Second District held that the joint proposal was invalid under rule 1.442(c)(3) for its failure to apportion the proposal between the plaintiff homeowners. Id. at 278.

We accepted jurisdiction after Trace Elements sought our review of the Fourth District's decision in Mackensen. See art. V, § 3(b)(3), Fla. Const.

II

As we have noted, this case involves section 768.79, the statute under which the Mackensens sought attorney's fees, and rule 1.442, which implements the statute. Before turning to the parties' arguments, we briefly describe the relevant contents of the statute and the rule.

Section 768.79 “provides a sanction against a party who unreasonably rejects a settlement offer” and “generally creates a right to recover reasonable costs and attorney['s] fees when a party has satisfied the terms of the statute and rule." Att’ys' Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 649 (Fla. 2010). The statute provides in relevant part:

(1) In any civil action for damages filed in the courts of this state, [i]f a plaintiff files a demand for judgment which is not accepted by the defendant within 30 days and the plaintiff recovers a judgment in an amount at least 25 percent greater than the offer, she or he shall be entitled to recover reasonable costs and attorney's fees incurred from the date of the filing of the demand.

§ 768.79(1), Fla. Stat. (2022).

To be valid under the statute, a proposal must:

(a) Be in writing and state that it is being made pursuant to this section.

(b) Name the party making it and the party to whom it is being made.

(c) State with particularity the amount offered to settle a claim for punitive damages, if any.

(d) State its total amount.

§ 768.79(2), Fla. Stat. When the specified conditions are met, a party is entitled to fees under the statute, unless the trial court determines that the proposal for settlement “was not made in good faith." See § 768.79(1), (8)(a), Fla. Stat.

While section 768.79 creates the substantive right to an attorney's fees award, rule 1.442 “provides the method and means of implementing this right by outlining the required form and content of a proposal for settlement.” Gorka, 36 So. 3d at 649.

Subdivision (c)(3) of the rule says:

A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal must state the amount and terms attributable to each party.

Fla. R. Civ. P. 1.442(c)(3) (emphasis added). We have said that this apportionment rule implements the textual requirement of section 768.79(2)(b) that a proposal “name the party making it and the party to whom it is being made." See Kuhajda v. Borden Dairy Co. of Ala., LLC, 202 So. 3d 391, 394-95 (Fla. 2016); Gorka, 36 So. 3d at 650 (“Reading the plain language of the statute, we recognize[] that the reference to 'party' in the singular in section 768.79(2)(b) indicate[s] the intent of the Legislature that an offer must specify the amount attributable to each party." (citing Allstate Indem. Co. v. Hingson, 808 So. 2d 197, 199 (Fla. 2002))).

III

A

Trace Elements argues that the Fourth District erred by creating an ad hoc exception to rule 1.442(c)(3) for “a joint proposal regarding a unified, single claim.” Mackensen, 388 So. 3d at 817. We agree. The Mackensens' settlement proposal was invalid under the text of the rule. And our precedents, which have involved myriad factual scenarios, have consistently mandated strict enforcement of the rule.

Recall that the text of rule 1.442(c)(3) says that "[a] joint proposal must state the amount and terms attributable to each party." In Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278-79 (Fla. 2003), our Court held that the term “joint proposal" in the rule simply means a proposal made by or to multiple parties. We concluded that “the plain language of rule

1.442(c)(3) requires that offers of judgment made by multiple offerors must apportion the amounts attributable to each offeror.” Id.; see also Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015) (same).

Our precedents applying rule 1.442(c)(3) have consistently emphasized the need for strict enforcement of the rule. We have invalidated an unapportioned settlement offer presented by two plaintiffs to one defendant, see Willis Shaw, 849 So. 2d at 277; an unapportioned settlement offer presented by one plaintiff to two defendants, see Lamb v. Matetzschk, 906 So. 2d 1037, 1040 (Fla. 2005); an unapportioned settlement offer presented by two defendants to one plaintiff, see Pratt, 161 So. 3d at 1273; and even an unapportioned settlement offer presented by one plaintiff to one defendant that sought to resolve claims involving additional parties not named in the proposal, see Audiffred v. Arnold, 161 So. 3d 1274, 1280 (Fla. 2015).

To identify a “joint proposal" subject to the rule 1.442(c)(3) apportionment requirement, we have never relied on factors beyond the multiplicity of the parties. The parties' relationships, theories of liability, or the number or nature of claims have been irrelevant to our application of the rule. Nor have we conditioned enforcement of the rule on whether doing so aligned with the purposes of section 768.79. Predictable and consistent application of the rule has created a framework on which parties governed by the rule can rely, without having to make case-by-case guesses about whether an underlying statutory purpose will excuse compliance with the rule.

In Lamb, for example, we held that the plain language of rule 1.442(c)(3) “mandates that offers of settlement be differentiated between the parties, even if a party's liability is purely vicarious." 906 So. 2d at 1038. Our Court was unmoved by an argument about the difficulty of apportioning a settlement proposal in that circumstance. Id. at 1041. Instead, we insisted on strict enforcement, observing that “[t]he rule makes no distinction between multiple plaintiffs and multiple defendants, nor does it make any distinction based on the theory of liability." Id. at 1042. In a concurrence expressing concern that the Court's holding would not “foster the primary goal of the rule and section 768.79,” Justice Pariente explained that the Court had interpreted the rule “to require differentiated offers of judgment, regardless of whether the offer emanates from or is directed to joint parties who have a common interest.” Id. at 1042-43 (Pariente, C.J., specially concurring).

Similarly, Pratt involved a settlement offer tendered by a limited partnership and one of its partners who were the defendants in the case and jointly owned the medical center involved in the underlying negligence action. Pratt, 161 So. 3d at 1270. After concluding that each entity was a distinct party in the case, we found their offer to be a joint proposal, and we strictly enforced the rule. Id. at 1273. We reasoned that, even if “any alleged liability of [the two defendants] could be viewed as coextensive, this does not constitute an exception to the apportionment requirement.” Id. at 1272. "While it may have been difficult for [the two entities] to apportion the settlement amount based on their purported liability, and even though they could have later apportioned their contribution had [the plaintiff] accepted the offer,” our Court added, “these are not recognized legal elements to disregard or circumvent the rule that requires apportionment of a settlement amount where a proposal is presented by multiple parties.” Id. at 1273. We went so far as to say: “Even where no logical apportionment can be made, it is nonetheless required where more than one offeror or offeree is involved.” Id. at 1272-73.

It is against this backdrop of text and precedent that we must evaluate the Mackensens' settlement proposal here. There is no question that it was a joint proposal: it came from both Wolfgang and Nadja Mackensen, each a distinct plaintiff. Indeed, as noted above, the Fourth District itself described the proposal as a “joint proposal." Mackensen, 388 So. 3d at 817. It is also undisputed that the proposal was unapportioned: it offered to accept from Trace Elements a lump sum of $10,000, without allocating distinct amounts to Wolfgang and Nadja individually. The Mackensens’ proposal was invalid under rule 1.422(c)(3), and our precedents call for strict enforcement of the rule.

B

The Mackensens do not dispute that their settlement offer was a "joint proposal," and they make no effort to argue that their offer complied with the plain language of rule 1.442(c)(3) or our precedent. Nor do the Mackensens maintain that it would have been impossible for them to comply with the rule. Instead, they defend the Fourth District's decision on the ground that it would be “nonsensical” to apply the rule on these facts and that "strict construction of a procedural rule is improper where it defeats the purpose of section 768.79.” The Mackensens maintain that enforcing the requirements of rule 1.442(c)(3) in their case would elevate form over substance.3

As we have explained, our Court's precedents have not conditioned enforcement of rule 1.442(c)(3) on whether, given the facts at issue in each case, doing so would help or hurt the goals or purposes underlying section 768.79 and the rule. In our view, parties are entitled to rely on our consistent application of the rule, especially because section 768.79, which the rule implements, is a "penalty statute.” Coates v. R.J. Reynolds Tobacco Co., 365 So. 3d 353, 355 (Fla. 2023).

In their search for authority to support their argument against enforcing rule 1.442(c)(3) here, the Mackensens rely primarily on

3. Without offering explanation or support, the Mackensens also suggest that apportionment of a claim involving property they jointly own as tenants by the entireties is “impractical.” We fail to see why the Mackensens' joint ownership of the vacation rental property alters the requirement of strict compliance with rule 1.442(c)(3), and we are persuaded by the Second District's rejection of this very argument in Cobb and again in Watkins v. Corbett, 2026 WL 816637 (Fla. 2d DCA Mar. 25, 2026). See Cobb, 111 So. 3d at 278; Watkins, 2026 WL 816637, at *2.

our decision in Kuhajda, but that case is inapposite. Kuhajda involved a different provision, rule 1.442(c)(2)(F), which requires a settlement proposal to state whether it includes attorney's fees. We excused noncompliance with that requirement in Kuhajda because the plaintiff/offeror had not sought attorney's fees in her complaint. 202 So. 3d at 393. Essential to our reasoning was that the attorney's fee rule “does not implement a substantive requirement of section 768.79.” Id. at 395. Our opinion in Kuhajda expressly distinguished a list of cases, including Willis Shaw, Gorka, Lamb, and Pratt, where we had imposed “strict enforcement” of rule 1.442 “in contexts in which the provisions of the rule implemented the substantive requirements of section 768.79.” Id. at 394-95. Thus, Kuhajda is of no help to the Mackensens because, as this Court has already determined, rule 1.442(c)(3) implements a substantive requirement of the statute.

The Mackensens also stress that their settlement proposal was not ambiguous—a point that Trace Elements does not dispute. Under our precedents, though, that does not save a settlement proposal that otherwise fails to comply with the rule. As the First District Court of Appeal has observed, our Court “has made the test strict compliance, not the absence of ambiguity." R.J. Reynolds Tobacco v. Ward, 141 So. 3d 236, 238 (Fla. 1st DCA 2014).

C

We recognize the force of the Mackensens' arguments as a matter of practicality and common sense under the specific facts of their case. We also acknowledge that strict application of rules can sometimes be in tension with the purposes or policies underlying those rules. Cf. Fox Valley & Vicinity Constr. Workers Pension Fund v. Brown, 897 F. 2d 275, 283-84 (7th Cir. 1990) (Easterbrook, J., dissenting) (“Rules have their flaws; loopholes and overbreadth, both producing unpalatable outcomes in the event of unanticipated circumstances, are among them. But whether to have rules (flaws and all) or more flexible standards (with high costs of administration and erratic application) is a decision already made by legislation.”). Nonetheless, our precedents under rule 1.442(c)(3) reflect a judgment that, overall, the benefits of strict enforcement outweigh whatever would be gained by making ad hoc exceptions to address overbreadth in the rule.

We decline in this case to contort the existing rule's text and our precedents to reward a party that disregarded those authorities and now complains that compliance would have been impractical. To the extent this case has illuminated a potential flaw in rule 1.442(c)(3), we believe the appropriate course is to review the rule and, if a change is warranted, amend its text. That is the path we followed after our Court's decision in Lamb, which led to a rule amendment to address cases involving parties with only vicarious liability. See In re Amends. to Fla. Rules of Civ. Proc., 52 So. 3d 579 (Fla. 2010) (adopting rule 1.442(c)(4)).

IV

We hold that rule 1.442(c)(3) requires apportionment of a joint proposal regarding a unified, single claim. We therefore quash the Fourth District's decision in Mackensen, and we approve the Second District's decision in Cobb to the extent it is consistent with our decision today. The cause is remanded to the Fourth District for further proceedings consistent with our opinion.

It is so ordered.

COURIEL, C.J., and LABARGA and GROSSHANS, JJ., concur. SASSO, J., dissents with an opinion, in which FRANCIS and TANENBAUM, JJ., concur.