FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court of Polk County; John M. Radabaugh,
B. Campbell of Valenti Campbell Trohn Tamayo & Aranda,
P.A., Lakeland, for Appellant.
S. Adams and Lauren A. Taylor of Shutts & Bowen LLP,
Tampa, for Appellee.
County appeals the order denying its motion for attorney fees
pursuant to section 768.79, Florida Statutes (2015),
following the entry of summary judgment in its favor against
Highlands-in-the-Woods, LLC (Highlands). Because Polk
County's proposal for settlement satisfied the
requirements of Florida Rule of Civil Procedure 1.442 and
Highlands' complaint did not allege any claim seeking
equitable relief, we reverse and remand for the trial court
to grant Polk County's fee motion and determine the
amount of reasonable attorney fees.
sued Polk County alleging federal and state takings and
inverse condemnation claims arising from the installation of
a reclaimed water system on a development owned by Highlands.
Section 702.G of the Polk County Land Development Code
required Highlands to install a reclaimed water system in
order to obtain its development permit from Polk County.
Highlands alleged that although it installed the system in
2006, Polk County was unable to supply reclaimed water until
2008. In its complaint Highlands sought damages for the
alleged taking and the expenses it incurred as a result of
its lack of access to the promised reclaimed water.
December 2, 2011, Polk County served a proposal of settlement
for $5000 on Highlands. On July 14, 2015, the trial court
granted summary judgment in Polk County's favor. That
order was recently affirmed by this court on appeal.
Highlands-in-the-Woods, LLC v. Polk County, No.
2D15-2801 (Fla. 2d DCA April 28, 2017). The trial court
awarded Polk County costs under section 57.041, Florida
Statutes (2015), but denied its motion seeking attorney fees
under section 768.79. On appeal, Polk County argues that the
denial of attorney fees was error because its proposal for
settlement complied with rule 1.442 and Highlands did not
raise any equitable claims of relief in its complaint.
See Diamond Aircraft Indus., Inc. v. Horowitch, 107
So.3d 362, 374 (Fla. 2013) ("[S]ection 768.79 does not
apply to an action in which a plaintiff seeks both damages
and equitable relief and in which the defendant has served
a general offer of judgment that seeks release of all
claims."). We agree.
contends that Polk County's offer of settlement was
invalid because it failed to state the nonmonetary conditions
of settlement, the amount proposed to settle a claim of
punitive damages, and that it would resolve all damages that
would otherwise be awarded in a final judgment. See
Fla. R. Civ. P. 1.442(c). "Entitlement to attorney's
fees and costs under an offer of judgment is reviewed de
novo." Wolfe v. Culpepper Constructors, Inc.,
104 So.3d 1132, 1134 (Fla. 2d DCA 2012).
County's proposal for settlement offered $5000 "in
exchange for a dismissal with prejudice of all claims against
. . . POLK COUNTY" and stated that it was "intended
as a full settlement of all claims asserted by [Highlands] in
this lawsuit." The nonmonetary relief sought by Polk
County was the dismissal with prejudice of all of
Highlands' claims. The proposal was sufficiently
particular to put Highlands on notice that Polk County was
seeking the dismissal with prejudice of all of its claims
asserted in this lawsuit. Had Highlands accepted the
proposal, there would have been no need for judicial
interpretation of its terms. See State Farm Mut. Auto.
Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006)
(explaining that "the proposal should be capable of
execution without the need for judicial interpretation"
(quoting Lucas v. Calhoun, 813 So.2d 971, 973 (Fla.
2d DCA 2002))). This general statement of the claims to be
resolved was sufficient to include all damages that would
otherwise be awarded in a final judgment. See Miley v.
Nash, 171 So.3d 145, 148 (Fla. 2d DCA) ("[W]hen the
proposal indicates that it seeks to resolve all claims
identified in the complaint, or in a specific count, it is
unnecessary to identify the various elements of damages in
the settlement proposal." (quoting Lucas, 813
So.2d at 972 n.1)), review denied, 192 So.3d 40
(Fla. 2015). Furthermore, because Highlands was not seeking
punitive damages, Polk County was not required to include
those amounts in its proposal for settlement. See
Lucas, 813 So.2d at 973 ("We conclude that the
'if any' language of [rule 1.442(c)(2)(E)] requires a
proposal for settlement to include terms for settlement of a
punitive damage claim only when the pleadings contain a
pending claim for punitive damages."). Accordingly, Polk
County's proposal for settlement fulfilled the
requirements of rule 1.442.
also argues that because it included a count for declaratory
relief, section 768.79 does not apply. See Diamond
Aircraft, 107 So.3d at 374. When determining whether a
complaint alleges an action for damages or one for equitable
relief, Florida courts "look to whether the 'real
issue' is one for damages" or equitable relief.
Nat'l Indem. Co. of the S. v. Consol. Ins.
Servs., 778 So.2d 404, 408 (Fla. 4th DCA 2001); see
also DiPompeo Constr. Corp. v. Kimmel & Assocs., 916
So.2d 17 (Fla. 4th DCA 2005). In this case, Highlands'
complaint included three counts for relief: (1) declaratory
relief, (2) inverse condemnation under the Florida
Constitution, and (3) inverse condemnation under the U.S.
Constitution. In each count Highlands sought recovery of the
additional development expenses it incurred as a result of
the county's requirement that it install a reclaimed
water system and the county's failure to supply it with
reclaimed water for irrigation of the development. Although
Highlands styled count one as seeking declaratory relief, it
requested that the trial court "enter a declaratory
judgment finding that . . . [Highlands] is permitted to
obtain compensation, including attorneys' fees, for the
costs associated with and impacts from the actions of POLK
COUNTY." Highlands did not seek the return of the
property dedicated to the county for the reclaimed system or
any other equitable remedy; instead, it sought compensation
for the losses it incurred related to the water reclamation
system. Therefore, the "real issue" in this case
was entitlement to damages, not a declaratory judgment.
See DiPompeo, 916 So.2d at 18 (holding that section
768.79 applied to a declaratory judgment action when
"the central issue . . . was the entitlement to money
damages"); Nelson v. Marine Grp. of Palm Beach,
Inc., 677 So.2d 998, 999 (Fla. 4th DCA 1996) (rejecting
the argument that section 768.79 did not apply to an action
seeking a declaratory judgment when "the only matter at
issue was money").
Polk County's proposal for settlement satisfied the
requirements of rule 1.442 and Highlands' complaint
alleged an action for damages, not equitable relief, we
reverse and remand for the trial court to grant Polk
County's attorney fee motion and to determine the amount
of reasonable attorney fees.
and remanded ...