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Nunez v. Allen

Florida Court of Appeals, Fifth District

October 11, 2019

JAIRO RAFAEL NUNEZ AND GABRIEL ROGELIO NUNEZ, Appellants,
v.
W. RILEY ALLEN, Appellee.

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

          Appeal from the Circuit Court for Orange County, Donald A. Myers, Jr., Judge.

          Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A., Orlando, for Appellants.

          W. Riley Allen, of Riley Allen Law, and Simon L. Wiseman, of The Wiseman Law Firm, P.A., Orlando, and Thomas D. Hall, of The Mills Firm, P.A., Tallahassee, for Appellee.

         UPON REMAND FROM THE FLORIDA SUPREME COURT

          LAMBERT, J.

         In Nunez v. Allen, 194 So.3d 554 (Fla. 5th DCA 2016), this court reversed a final judgment awarding W. Riley Allen ("Appellee") $343, 590 in attorney's fees and legal assistant fees against Jairo Rafael Nunez and Gabriel Rogelio Nunez ("Appellants") under section 768.79, Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442. Appellee had served and filed separate $20, 000 proposals for settlement upon each Appellant, neither of which was accepted. Id. at 556. These proposals for settlement were identical except for the name of the offeree. Id. Without going into detail here, we had agreed with Appellants' first argument that the proposals for settlement contained ambiguous language, and we thus found that they were invalid and unenforceable. Id. at 557. On appeal, the Florida Supreme Court quashed our decision, held that Appellee's proposals for settlement were unambiguous, and remanded the case for further proceedings consistent with its opinion. Allen v. Nunez, 258 So.3d 1207, 1217 (Fla. 2018).

         In addition to the argument that was ultimately rejected by the supreme court, Appellants had also raised before our court the following three arguments for reversal: (1) the trial court erred in not considering Appellee's separate $20, 000 proposals for settlement to each Appellant as one aggregate proposal for settlement to them in the sum of $40, 000 and, if it had, Appellee would have failed to meet the monetary threshold under the rule and statute for an award of attorney's fees; (2) alternatively, if the proposals for settlement were otherwise enforceable, Appellee should not be awarded attorney's fees for representing himself or, at the very least, should not be awarded attorney's fees for his own services rendered after Appellee's co-counsel began representing him; and (3) the amount of the attorney's fees awarded for this case was unreasonable and not supported by competent substantial evidence. Nunez, 194 So.3d at 557. In our prior opinion, because we found to be dispositive the argument that Appellee's proposals for settlement were ambiguous and thus unenforceable, we specifically declined to address these other arguments. Id. On remand, we now address the merits of each.

         SHOULD APPELLEE'S SEPARATE PROPOSALS FOR SETTLEMENT HAVE BEEN CONSIDERED IN THE AGGREGATE -

         This case resulted from a motor vehicle accident in which Appellant, Gabriel Nunez, was operating a vehicle owned by his father, the co-appellant, Jairo Nunez, when he struck a truck owned by Appellee, which was lawfully parked in the street and unoccupied. Id. at 556. Appellee filed a one-count complaint against Appellants, alleging that Gabriel Nunez negligently operated the vehicle and that Jairo Nunez, as the owner of the vehicle, was vicariously liable for his son's negligent driving. Id. Appellee sought damages for the post-repair diminution in the value of his truck, the cost of the repairs, and his loss of the use of this truck. Id. Appellants, who were represented by the same counsel, jointly answered the complaint. Id.

         Following a two-day bench trial, the trial court rendered an amended final judgment in favor of Appellee jointly against both Appellants in the sum of $29, 785.97, including "significant"[1] prejudgment interest, reserving jurisdiction to award attorney's fees. Id. Because the amount of this judgment exceeded Appellee's individual $20, 000 proposals for settlement served on each Appellant by at least twenty-five percent, Appellee moved for an award of reasonable attorney's fees against both Appellants under section 768.79(1), Florida Statutes (2011), and Florida Rule of Civil Procedure 1.442. Id. at 556- 57. Appellants responded that because Appellee had treated Appellants as a single entity as evidenced by having sued them together in one count, and because they could only be jointly liable for any damages, the separate $20, 000 proposals for settlement submitted by Appellee to each of them should be considered as one aggregate $40, 000 proposal for settlement. Id. at 557. Thus, with the amended final judgment for damages in the amount of $29, 785.97 being less than the aggregate $40, 000 proposal for settlement, Appellants argued that Appellee was not entitled to an award of attorney's fees under the statute and rule. Id.

         Shortly after we issued our prior opinion in this case, the supreme court resolved this issue adversely to Appellants when it held that the aggregating of offers of settlement for the purpose of determining entitlement to attorney's fees "cannot be tolerated under a strict construction of section 768.79." See Anderson v. Hilton Hotels Corp., 202 So.3d 846, 858 (Fla. 2016); accord Cassedy v. Wood, 263 So.3d 300, 304 (Fla. 1st DCA 2019).

         IS APPELLEE ENTITLED TO AN AWARD OF ATTORNEY'S FEES FOR REPRESENTING HIMSELF -

         Appellee, a very experienced, competent civil trial lawyer, represented himself throughout the majority of this litigation, including after he retained co-counsel to assist him. In the final judgment under review, the trial court awarded to Appellee attorney's fees for 425.2 of the hours that he personally expended on the case. It also awarded attorney's fees to Appellee for 205.1 hours spent on this case by his co-counsel. In the instant argument, Appellants make a two-pronged attack regarding the attorney's fees award to Appellee for representing himself. First, they argue that Appellee should not have been awarded any attorney's fees for his self-representation. Second, they assert ...


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