final until disposition of timely filed motion for rehearing.
Appeal from the Circuit Court for Miami-Dade County, Lower
Tribunal No.16-21856, Beatrice Butchko, Judge.
Saunooke Law Firm, P.A., and Robert O. Saunooke (Plantation);
Alston & Bird LLP, and George B. Abney, (Atlanta, GA),
Hicks Eidson P.A., and Curtis B. Miner, Roberto Martinez, and
W. Allen Bonner, for appellees.
EMAS, C.J., and SALTER and LOGUE, JJ.
Miccosukee Tribe of Indians of Florida seeks review of the
trial court's denial of its motion for attorneys'
fees pursuant to section 768.79, Florida Statutes, which
governs offers of judgment. The trial court denied the motion
after it found that the offers of judgment made by the Tribe
were not made in good faith. We reverse.
August 2016, plaintiffs, Lewis Tein, P.L., and individual
attorneys Guy Lewis and Michael Tein, filed suit against the
Miccosukee Tribe of Indians of Florida. The plaintiffs sought
damages from the Tribe allegedly arising from its conduct in
prior lawsuits. On November 11, 2016, shortly after being
served, the Tribe moved to dismiss the lawsuit for lack of
subject matter jurisdiction under a theory of sovereign
immunity. The trial court denied the motion.
December 2016, the Tribe appealed the denial of its motion to
dismiss. Oral argument on the Tribe's appeal was heard by
this Court on May 10, 2017. The following week, on May 17,
2017, the Tribe made offers of judgment totaling $7, 500 --
$2, 500 to each of the three plaintiffs -- in the underlying
lawsuit. The offers of judgment were not accepted within 30
days. Roughly three months later, on August 9, 2017, this
Court issued an opinion reversing the denial of the motion to
dismiss and holding that the plaintiffs' claims against
the Tribe were precluded by sovereign immunity.
Miccosukee Tribe of Indians v. Lewis Tein, P.L., 227
So.3d 656, 660 (Fla. 3d DCA 2017). This Court subsequently
denied the plaintiffs' motion for certification to the
Florida Supreme Court. The plaintiffs then petitioned the
United States Supreme Court for a writ of certiorari, which
was denied. Lewis Tein, P.L. v. Miccosukee Tribe of
Indians of Florida, No. 17-702 (U.S. Jan. 16, 2018). On
remand, the circuit court dismissed the plaintiffs'
the dismissal, the Tribe moved for attorney's fees
pursuant to section 768.79. The trial court denied the motion
for fees because it found the offers of judgment were made in
bad faith because they were (1) nominal and (2) not made at
the beginning of the lawsuit but nine months into the case.
This appeal followed.
section 768.79, a right to attorney's fees is established
once the two statutory requisites are satisfied. These
requisites are (1) "a party has served a demand or offer
for judgment, and (2) that party has recovered a judgment at
least 25 percent more or less than the demand or offer. These
are the only elements of the statutory entitlement. No other
factor is relevant in determining the question of
entitlement." Schmidt v. Fortner, 629 So.2d
1036, 1040 (Fla. 4th DCA 1993). Thus, "the right to an
award turns only on the difference between the amount of a
rejected offer and the amount of a later judgment."
Id. at 1041.
"[i]f 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(7)(a), Fla.
Stat. Although "[a] trial court may decline to award
attorney's fees if it finds the offeror did not make its
offer of judgment in good faith," the question of
"[w]hether the offeror has good faith rests on whether
the offeror has a reasonable foundation on which to base ...