"Reasonable and realistic" assessments: nominal offers of judgment in Florida after Eagleman v. Eagleman.

• Author: Leonard, Patricia A.

On May 22, 1996, the Fourth District Court of Appeal issued an opinion which appears to have radically altered the way in which litigators should be making offers of judgment pursuant to F.S. [sections] 768.79 (1995). This opinion, Eagleman v. Eagleman, 673 So. 2d 946 (Fla. 4th DCA 1996), dramatically departs from existing case law interpreting F.S. [sections] 768.79, particularly the "good faith" provision of the statute.

F.S. [sections] 768.79

F.S. [sections] 768.79, Florida's offer of judgment statute, was meant to encourage early settlement in civil litigation. Under F.S. [sections] 768.79, a party may be entitled to an award of costs and attorneys' fees if the party follows the requirements of the statute and the judgment in the case falls within certain statutorily prescribed parameters.(1) An offering defendant under this statute is entitled to reasonable costs and attorneys' fees if there is a defense verdict or if the judgment obtained by the plaintiff is at least 25 percent less than the offer.(2) A plaintiff demanding judgment is entitled to costs and attorneys' fees if the judgment obtained by the plaintiff is at least 25 percent greater than the offer.(3) Once these prerequisites have been met, an award of costs and fees is mandatory unless the offer was "not made in good faith."(4) Unfortunately, F.S. [sections] 768.79 does not define when an offer was "not made in good faith," and litigants have been, forced to rely upon case law to determine the meaning of this phrase.

The Eagleman Case

Eagleman was a malicious prosecution action that arose from a criminal charge of battery filed against the plaintiff by his former wife, who alleged that he had stepped on her foot.(5) After a jury verdict of "not guilty," the plaintiff filed the malicious prosecution action, seeking substantial actual damages for time spent away from his medical practice.(6) His former wife filed an offer of judgment of $100 with her answer, prior to any discovery, which the plaintiff did not accept.(7) After the jury in the malicious prosecution case deadlocked, the plaintiff voluntarily dismissed his case with prejudice, and his former wife moved for attorneys' fees pursuant to F.S. [sections] 768.79, based on her $100 offer of judgment.(8) The trial court rejected the former wife's claim to attorneys' fees, holding that her "nominal" offer of judgment did not meet the "good faith" requirements of the offer of judgment statute because it "was made merely to lay the predicate for a future award of attorney's fees and costs."(9)

Finding that the trial court had not abused its discretion in reaching its holding, the Fourth District affirmed the decision.(10) In doing so, the court noted that the former wife's offer of judgment could be deemed to have not been made in good faith because it "bore no reasonable relationship to the amount of damages or realistic assessment of liability. It was instead based on [the former wife's] subjective determination, before discovery had commenced, that this was a case of no liability."(11)

The Eagleman holding departs from established Florida law interpreting offers of judgment in a number of different ways. The most significant of...