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Miccosukee Tribe of Indians of Florida v. Lewis Tein P.L.

Florida Court of Appeals, Third District

June 19, 2019

Miccosukee Tribe of Indians of Florida, Appellant,
v.
Lewis Tein P.L., et al., Appellees.

         Not final until disposition of timely filed motion for rehearing.

          An 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), for appellant.

          Colson Hicks Eidson P.A., and Curtis B. Miner, Roberto Martinez, and W. Allen Bonner, for appellees.

          Before EMAS, C.J., and SALTER and LOGUE, JJ.

          LOGUE, J.

         The 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.

         FACTS

         In 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.

         In 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' complaint.

         Following 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.

         ANALYSIS

         Under 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.

         Nevertheless, "[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 ...


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