CHERYL HEYMANN and JONATHAN P. HEYMANN v. GINA FREE and PAUL ANTHONY FREE
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IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
CHERYL HEYMANN and
JONATHAN P. HEYMANN,
Appellants,
v.
CASE NO. 1D04-2761
GINA FREE and PAUL
ANTHONY FREE,
Appellees.
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Opinion filed September 8, 2005.
An appeal from an order from the Circuit Court for Columbia County.
E. Vernon Douglas, Judge.
Brian C. Keri, Tallahassee, Attorney for Appellants.
Rod Bowdoin of Darby, Peele, Bowdoin & Payne, Lake City, Attorney for Appellees.
ON MOTION FOR CLARIFICATION
THOMAS, J.
Appellee seeks clarification of this court's opinion filed July 18, 2005. We
grant Appellee’s motion, withdraw our former opinion of July 18, 2005, and substitute
the following opinion in its place.
We have for review an order granting Appellees a sanction of fees and costs
arising out of a rejected settlement proposal made to Appellants. Because Appellees’
settlement proposal failed to apportion the offer between Appellants, we reverse.
However, we do not address the second offer of judgment, as the parties stipulated it
was a valid offer.
Appellant Cheryl Heymann, Defendant below, drove her car and ran a stop sign,
injuring Appellee Gina Free. Appellant Jonathan Heymann was co-owner of the car
driven by his wife. Appellee Gina Free made an initial unified settlement offer of
$80,000 to Appellants, who were each purportedly liable under Florida’s Dangerous
Instrumentality Act. Appellants ultimately admitted liability.
This offer did not
attribute the amount between the parties. At the trial for damages, the jury returned
a verdict of $416,101, later reduced to $356,932. The trial court granted attorney’s
fees and costs in the amount of $115,000 to Appellees as a sanction for Appellants’
unreasonable rejection of the settlement proposal.
The Florida Supreme Court has held “the plain language of rule 1.442(c)(3)
mandates that a joint proposal for settlement differentiate between the parties, even
when one party’s alleged liability is purely vicarious.” Lamb v. Matetzschk, 30 Fla.
L. Weekly S467, S469 (Fla. June 23, 2005). Here, Appellees’ initial unified offer of
$80,000 to both Appellants did not state “the amount and terms attributable to each
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party” as required by rule 1.442(c)(3). Therefore, we are constrained by Lamb to
reverse the award of attorney’s fees and costs.
However, we agree with Chief Justice Pariente’s specially concurring opinion
in Lamb which notes that requiring a unified offer of judgment to apportion fault
between equally liable defendants may not promote settlements. Lamb, 30 Fla. L.
Weekly at S469. In our view, the facts of this case demonstrate that the invalidation
of such offers will discourage settlements. Such a result is contrary to the legislative
intent to encourage settlements through offers of judgment, as clearly expressed in
section 768.79, Florida Statutes. There appears to be “no rational method to apportion
fault” in cases involving equally liable defendants and a single plaintiff. Lamb, 30
Fla. Law Weekly at 469 (Pariente, C.J., concurring) (quoting Barnes v. Kellogg Co.,
846 So. 2d 568, 571 (Fla. 2d DCA 2003)). As noted by the Chief Justice and two
concurring Justices, Florida Rule of Civil Procedure 1.442 may, in fact, discourage
such settlements.
We respectfully submit that the Florida Supreme Court should consider whether
rule 1.442 should be amended to align with the legislative intent and to better state the
requirements for a valid offer of judgment. A rule of procedure cannot alter, amend
or eliminate an entitlement to an award of attorney’s fees authorized in
Section 768.79, Florida Statutes. See In Re Amend. To Fla. Rules of Civ. Proc., 682
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So. 2d 105, 106 (Fla. 1996) (Florida Supreme Court rejected proposed amendment
which would allow trial courts to determine “entitlement” to fees where Legislature
established entitlement as matter of substantive law). In our view, the result in this
case implicates the separation of powers clause in Article II, Section 3 of the Florida
Constitution. Such a result will deprive Appellees of a significant attorney’s fee
award based on a requirement of rule 1.442 that is not contained in section 768.79,
Florida Statutes. However, because we are constrained by Lamb, we reverse the
award of attorney’s fees and costs.
REVERSED and REMANDED.
PADOVANO, J., CONCURS; ERVIN, J., CONCURS IN RESULT.
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