Chapter 16-5 Offers of Judgment and Proposals for Settlement

• Jurisdiction: United States

16-5 Offers of Judgment and Proposals for Settlement

16-5.1 Offer of Judgment and Demand for Judgment—Fla. Stat. § 768.79

Fla. Stat. § 768.79 is Florida's Offer of Judgment and Demand for Judgment statute, which provides that a party may be entitled to recover attorney's fees in "any civil action for damages" if an offer or demand for judgment is not accepted, and certain other conditions are met.¹²¹ For example, a defendant may file an offer of judgment, and if the offer is not accepted by the plaintiff within 30 days, and the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than the offer, the defendant is entitled to recover attorney's fees.¹²² Likewise, a plaintiff may make a demand for judgment, which if not accepted within 30 days, and the plaintiff recovers at least 25 percent more than the offer, he or she is entitled to recover reasonable attorney's fees incurred from the date of the filing of the demand.¹²³ The statute appears to have limited applicability in foreclosure actions, which are equitable in nature, but at least one court has held that the statute applies in a foreclosure action, where defendants who did not sign the mortgage were seeking monetary damages from the foreclosing lender, and otherwise complied with the statute.¹²⁴

16-5.2 Procedural Rule Governing Offers of Judgment—Rule 1.442

A party seeking fees under the offer of judgment statute must comply with Rule 1.442. A proposal shall be in writing and shall identify the applicable Florida law under which it is being made. A proposal shall: (A) name the party or parties making the proposal and the party or parties to whom the proposal is being made; (B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F); (C) state with particularity any relevant conditions; (D) state the total amount of the proposal and state with particularity all nonmonetary terms of the proposal; (E) state with particularity the amount proposed to settle a claim for punitive damages, if any; (F) state whether the proposal includes attorneys' fees and whether attorneys' fees are part of the legal claim; and (G) include a certificate of service in the form required by rule 1.080.¹²⁵ In addition, the offer must be served on the party or parties to whom it is made, but not filed unless necessary to enforce the provisions of the rule.¹²⁶ The...