TAYLOR ENGINEERING, INC. & ROBERT J. WAGNER, P.E., Appellants,
DICKERSON FLORIDA, INC., a Florida corporation, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Duval County. Karen K.
R. Truitt and Kathryn L. Ender of Cole, Scott & Kissane,
P.A., Miami, for Appellants.
A. Robertson, Erin Rohan Smith, William Douglas Stanford,
Thomas J. Tollefsen, and William Collins Cooper of the
Robertson Firm, St. Augustine; James C. Hauser of
Attorney's Fees in Florida PL, Maitland, for Appellee.
(collectively "Taylor") filed a post-trial motion
for attorneys' fees and costs pursuant to section
768.79(1), Florida Statutes, and Florida Rule of Civil
Procedure 1.442. The trial court denied the motion on the
authority of Borden Dairy Co. of Alabama, LLC v.
Kuhajda, 171 So.3d 242 (Fla. 1st DCA 2015) (holding that
a proposal for settlement must strictly comply with the
content requirements of rule 1.442(c)(2) in order to entitle
the movant to attorneys' fees and costs). Taylor
appealed. However, while this appeal was pending, the Florida
Supreme Court quashed our decision in Borden Dairy.
Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202
So.3d 391 (Fla. 2016). Based on the supreme court's
decision, Appellee ("Dickerson") concedes that the
trial court erred in holding that Taylor's proposal for
settlement was invalid for failing to strictly comply with
the content requirements of rule 1.442. Accordingly, we
reverse and remand for the trial court to reconsider
Taylor's motion in light of the supreme court's
decision in Kuhajda.
Kuhajda decision does not, however, fully resolve
this appeal. Dickerson also argued that Taylor's proposal
for settlement was a nominal offer that was not made in good
faith, and for this reason the trial court should disallow an
award of costs and attorneys' fees. § 768.79(7)(a),
Fla. Stat. The parties contend that this Court has made
inconsistent rulings concerning the standard in determining
whether a nominal offer is made in good faith. While we find
that the case law is not inconsistent, we reiterate that, for
purposes of the offer of judgment statute, a nominal offer is
made in good faith where the offeror has a reasonable basis
to believe that its exposure to liability is minimal.
apparent inconsistency in the good-faith standard involves
Arrowood Indemnity Co. v. Acosta, Inc., 58 So.3d 286
(Fla. 1st DCA 2011), and General Mechanical Corp. v.
Williams, 103 So.3d 974 (Fla. 1st DCA 2012). The
Arrowood court noted "[i]n the context of a
nominal offer of judgment, this court has held that where the
offeror has a reasonable basis to believe that exposure to
liability is minimal, a nominal offer is
appropriate." Arrowood, 58 So.3d at 289
(emphasis supplied). However, in the same context, we held in
General Mechanical that "a reasonable basis
[for a nominal offer] exists only where the undisputed record
strongly indicates that the defendant had no
exposure." Gen. Mech., 103 So.3d at 976
(emphasis supplied). At first glance, it appears that the
General Mechanical court would disqualify a nominal
offer from the offer of judgment statute unless the defendant
had "no exposure" at all to liability, whereas the
Arrowood court would permit a nominal offer under
the statute as long as the defendant's exposure to
liability could be characterized as "minimal."
However, a review of the relevant case law reveals no such
The offer of judgment statute provides in pertinent part as
(1) In any civil action for damages filed in the courts of
this state, if a defendant files an offer of judgment which
is not accepted by the plaintiff within 30 days, the
defendant shall be entitled to recover reasonable costs and
attorney's fees incurred by her or him . . . from the
date of filing of the offer if the judgment is one of no
. . . .
(7)(a) If a party is entitled to costs and fees pursuant to
the provisions of this section, the court may, in its
discretion, determine that an offer was not made in good
faith. In such case, the court may disallow an award of costs
and attorney's fees.
§ 768.79(1) & (7)(a), Fla. Stat.
determining whether a nominal offer was made in good faith,
we have previously applied the standard articulated in
Arrowood. See Zachem v. Paradigm Prop. Mgmt.
Team, Inc., 867 So.2d 1263 (Fla. 1st DCA 2004) ("A
nominal offer is appropriate where the offeror has a
reasonable basis to believe that exposure to liability is
minimal."). See also Connell v. Floyd, 866
So.2d 90, 94 (Fla. 1st DCA 2004) (Benton, J., dissenting)
(stating that the rule is that "a minimal offer can be
made in good faith if the evidence demonstrates that, at the
time it was made, the offeror had a reasonable basis to
conclude that its exposure was nominal"). The apparently different standard used by
this Court in General ...