final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No. 10-46125 Jerald Bagley, Judge.
Scott & Kissane, P.A., and Kathryn L. Ender and George R.
Truitt; White & Case LLP, and Raoul G. Cantero, for
Burlington, P.L., and Jeffrey B. Crockett and Kevin C.
Kaplan, for appellee.
LAGOA, LOGUE, and SCALES, JJ.
Ramon Pachecho ("Pacheco") and Ramon Pacheco and
Associates, Inc. (the "Corporation"), appeal the
trial court's final judgment for attorneys' fees in
the amount of $232, 440 in favor of appellee, R. Randy
Gonzalez ("Gonzalez"), based upon a Proposal for
Settlement (the "Proposal") served pursuant to
section 768.79, Florida Statutes (2011), and Florida Rule of
Civil Procedure 1.442. Because the conditional nature of the
Proposal divested Pacheco and the Corporation of their
ability to independently evaluate and accept the Proposal
irrespective of the other party's decision, we hold that
the Proposal was invalid under Attorneys' Title
Insurance Fund, Inc. v. Gorka, 36 So.3d 646 (Fla. 2010),
FACTUAL AND PROCEDURAL BACKGROUND
August 24, 2010, Gonzalez filed suit against Pacheco and the
Corporation, among others, seeking damages for the defective
design of an air conditioning system in his new home. The
complaint alleged claims against Pacheco and the Corporation,
which the complaint referred to collectively as the
"PACHECO Defendants, " for breach of contract
(Count I), negligence (Count II), and negligent
misrepresentation (Count III). On September 27, 2011,
Gonzalez served the Proposal on "Defendants RAMON
PACHECO and RAMON PACHECO AND ASSOCIATES, INC. (collectively,
'PACHECO DEFENDANTS')" pursuant to rule 1.442
and section 768.79, Florida Statutes. Making no distinction
between Pacheco and the Corporation, the Proposal stated that
it was made to the "PACHECO DEFENDANTS" and was
offered to resolve all claims against the "PACHECO
DEFENDANTS." The Proposal stated, in part:
4. Total amount of proposal:
The monetary amount of this Proposal is payment by the
PACHECO DEFENDANTS to Plaintiff in the total amount of $300,
000.00, which shall include payment for all alleged damages
of any kind, compensatory, punitive or otherwise, which may
be awarded in a final judgment in this action against the
PACHECO DEFENDANTS, including costs and prejudgment interest
upon the total damages, and is to settle all claims which
have been brought or which could have been brought by
Plaintiff against the PACHECO DEFENDANTS in the above-styled
matter. The payment shall be allocated as follows: $150,
000.00 from Defendant RAMON PACHECO, and $150, 000.00 from
Defendant RAMON PACHECO AND ASSOCIATES, INC.
5. Except as provided herein, Plaintiff and the PACHECO
DEFENDANTS will otherwise bear their own respective
attorneys' fees and costs.
6. Acceptance of this Proposal: Upon acceptance of
this offer by the PACHECO DEFENDANTS, Plaintiff and the
PACHECO DEFENDANTS shall authorize their counsel to sign and
file a stipulation of voluntary dismissal with prejudice in
the form attached hereto as Exhibit "A."
as Exhibit A to the Proposal was a Stipulation of Voluntary
Dismissal With Prejudice (the "Stipulation"),
stating that the "PACHECO DEFENDANTS dismiss with
prejudice all claims, counterclaims and third-party claims
that were brought or could have been brought by them in this
action" and that "Plaintiff voluntarily dismisses
with prejudice all claims that were brought or could have