Gonzalez v. Nobregas—(J. Bokor; 3DCA; 1/18/23). A defendant prevailed in a civil case regarding the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”). That act allows prevailing party fees at the judge’s discretion. Here, the record reflects that the trial court granted partial summary judgment as to liability in favor of the plaintiff on the FDUTPA claim, but the jury awarded no damages. Based on the record, the discretionary nature of prevailing party fees under FDUTPA, and the analytical framework (analyzing seven statutory factors), the DCA found no abuse of discretion in the trial court’s denial of fees and costs to Gonzalez on the FDUTPA claim. The bulk of the case dealt with the defendant’s alternate/additional claim for prevailing party fees under section 768.78, Fla. Stat. That statute entitles a defendant to reasonable attorney’s fees and costs where the defendant serves a valid offer of judgment, not accepted by the plaintiff within 30 days, and “(1) the judgment is one of no liability; (2) the judgment obtained by the plaintiff is at least twenty-five percent less than the defendant's offer; or (3) the cause of action was dismissed with prejudice.” Nobregas didn’t accept the offers within 30 days and Gonzalez received a judgment of no liability. The only question, then, was whether the offer complied with the requirements of the fee statute. The statute requires that the offer:
- (a) Be in writing and state that it is being made pursuant to 768.78;
- (b) Name the party making it and the party to whom it is being made;
- (c) State with particularity the amount offered to settle a claim for punitive damages, if any;
- (d) State its total amount.
The offer shall be construed as including all damages which may be awarded in a final judgment.
Rule 1.442, Fla. R. Civ. P., applies additional requirements, and the offer has to comply with both the statute and the rule. The DCA affirmed the trial court's decision that the defendant’s offer was deficient under both the statute and the rule. First, the offer required the plaintiff to execute a release, but the release was neither attached nor described in sufficient detail. All nonmonetary terms have to be described with particularity. The offer also was ambiguous on the question of punitive damages. The plaintiff had moved to amend the complaint to add a claim for punitive damages, but the part of the offer that requires that the party state with particularity the amount offered to settle a claim for punitive damages stated that punitive damages were not sought. This rendered the proposal at least ambiguous. Finally, payment was required on the date of “settlement,” but “settlement” was not defined. Any ambiguous proposal renders an offer of judgment unenforceable. The DCA did reverse the denial of costs, however, because section 57.041(1) requires an award of costs for a prevailing party, and a “zero judgment” for a defendant constitutes a judgment in the defendant’s favor. 5
Terry P. Roberts
Director of Appellate Practice Fischer Redavid PLLC