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Taylor Engineering, Inc. v. Dickerson Florida, Inc.

Florida Court of Appeals, First District

May 31, 2017

TAYLOR ENGINEERING, INC. & ROBERT J. WAGNER, P.E., Appellants,
v.
DICKERSON FLORIDA, INC., a Florida corporation, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from the Circuit Court for Duval County. Karen K. Cole, Judge.

          George R. Truitt and Kathryn L. Ender of Cole, Scott & Kissane, P.A., Miami, for Appellants.

          Peter 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.

          OPINION

          WINOKUR, J.

         Appellants (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.

         The 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.

         The 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 inconsistency.

The offer of judgment statute provides in pertinent part as follows:
(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 liability[.]
. . . .
(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.[1]

         In 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").[2] The apparently different standard used by this Court in General ...


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