Law Offices of Robin Bresky Successfully Defends Motion for Appellate Attorney’s Fees Based on Failure to Apportion Settlement Offer

Law Offices of Robin Bresky Successfully Defends Motion for Appellate Attorney’s Fees Based on Failure to Apportion Settlement Offer

The Law Offices of Robin Bresky recently successfully defended against a motion for appellate attorney’s fees based on opposing counsel’s failure to apportion a settlement offer. The case concerned the Defendant’s failure to pay for professional services rendered by her attorney in a real estate transaction. Both the attorney and her law firm sued the Defendant for payment of the fees owed.

The Defendant made a proposal for settlement pursuant to section 768.79, Florida Statutes, in the trial court proceedings. The proposal for settlement stated that it was made by “Defendant” to “Plaintiffs.” It listed one monetary settlement amount and stated that it was intended to resolve “all claims of Plaintiffs against the Defendant.” The Plaintiffs did not accept the offer. The case proceeded through trial and an appeal.

Following the appeal, the Defendant requested an award of appellate attorney’s fees based on the prior proposal for settlement. Our firm responded on behalf of the Plaintiffs that the appellate court should deny the Defendant’s request for fees because the proposal for settlement had failed to differentiate between the Plaintiffs by specifying the amount attributable to each of them. We relied on the requirement of Florida Rule of Civil Procedure 1.442(c)(3) that “[a] joint proposal shall state the amount and terms attributable to each party.” We also cited case law holding that section 768.79 and rule 1.442 are strictly construed because they are “in derogation of the common law rule that each party pay their own fees.” Brower-Eger v. Noon, 994 So. 2d 1239, 1241 (Fla. 4th DCA 2008).

Our firm argued that the Defendant made a joint offer of settlement from a sole defendant to two plaintiffs – the attorney and the attorney’s law firm. The offer of settlement failed to specify the amount and terms offered to each Plaintiff. We maintained that it violated Florida Rule of Civil Procedure 1.442(c)(3) and could not form an appropriate basis for an award of fees.

The appellate court agreed with our argument and rendered an order that denied the Defendant’s Motion for Appellate Attorney’s Fees. This result benefited our clients by eliminating their liability for their opponent’s attorney’s fees for the appellate proceedings.

* The mandate in the appeal has not yet issued.