NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
RICHARD O. WOLFE, II, and
H. MICHELLE WOLFE,
CULPEPPER CONSTRUCTORS, INC.,
CULPEPPER CONSTRUCTORS, INC.,
RICHARD O. WOLFE, II, and
H. MICHELLE WOLFE,
Opinion filed February 29, 2012.
Appeals from the Circuit Court for
Hillsborough County; William P. Levens,
Carol M. Rooney and Shannon Tan of
Butler Pappas Weihmuller Katz Craig LLP,
Tampa, for Appellants/Cross-Appellees.
Brian F. Stayton and Daryl E. Dykeman of
Stayton Law Group, P.A., Valrico, for
Case No. 2D10-3228
Case No. 2D10-3670
This appeal and cross-appeal arise from a contract dispute following the
construction of a large addition to and remodeling of a historic residence owned by
appellants/cross-appellees, Richard O. Wolfe, II, and his wife, H. Michelle Wolfe. The
appellee/cross-appellant, Culpepper Constructors, Inc. (Culpepper), was the general
contractor on the project. We affirm in part and reverse in part. We reverse, finding
error in one of the two issues in the Wolfes' main appeal and in one of the five issues in
Culpepper's cross-appeal; we affirm all other issues without further discussion.
I. The Case
Upon finishing the construction and remodeling project, Culpepper
submitted a final invoice seeking payment of an outstanding balance of $91,261.65.
The Wolfes refused to pay, claiming vast overcharges among other complaints, so
Culpepper recorded a claim of lien against the property in the same amount as the final
invoice. Culpepper then initiated a suit to foreclose the lien and also sought damages
from the Wolfes for their alleged breach of the construction contract. The Wolfes
counterclaimed, alleging various defenses including defective workmanship.
At trial, the jury determined that the reasonable value of the work due to
Culpepper was $91,261.65, with prejudgment interest due since June 19, 2006. The
jury also found for the Wolfes on some of their counterclaims. After recalculating the
final judgment for set-offs and interest, Culpepper received an award of $9074.06.
A. The Wolfes' Offer of Judgment
We first review whether the Wolfes were entitled to an award of attorney's
fees and costs pursuant to their joint offer of judgment which Culpepper had rejected.
Section 768.79, Florida Statutes (2006), provides the basis for an award of
attorney's fees and costs when an offer or demand for judgment is not accepted and the
statutory calculation formula is met.1 Florida Rule of Civil Procedure 1.442 applies to all
proposals of settlement authorized by Florida law; this term encompasses offers and
demands for judgment, thereby providing the means for implementing the statutory
right. Operating in tandem, the statute and the rule provide a sanction in the form of an
award of attorney's fees against a party who unreasonably rejects a properly made
settlement offer. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla.
As the courts of this state have noted with dismay, the statute and rule
have not had their desired effect.
The expected result of the attorneys' fee sanction was
to reduce litigation costs and conserve judicial resources by
encouraging the settlement of legal actions. See Sarkis v.
Allstate Ins. Co., 863 So. 2d 210, 218 (Fla. 2003). The
effect, however, has been in sharp contrast to the intended
outcome because the statute and rule have seemingly
The relevant language of section 768.79(1) provides:
[I]f a defendant files an offer of judgment which is not
accepted by the plaintiff within 30 days, the defendant shall
be entitled to recover reasonable costs and attorney's fees
incurred by her or him or on the defendant's behalf pursuant
to a . . . contract from the date of filing of the offer if the
judgment is one of no liability or the judgment obtained by
the plaintiff is at least 25 percent less than such offer . . . .
increased litigation as parties dispute the respective validity
and enforceability of these offers.
Attorneys' Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 650 (Fla. 2010). Although the
intent of the statute and rule were "to end judicial labor, not create more," Lucas v.
Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002), this intent has once again been
defeated as shown by the circumstances of the case presently before us.
In denying the Wolfes' claim, the trial court concluded that the offer of
judgment was invalid because it was a joint offer that could only be accepted by
Culpepper were Culpepper to dismiss its then pending claims against both Mr. and Mrs.
Wolfe. Entitlement to attorney's fees and costs under an offer of judgment is reviewed
de novo. Jamieson v. Kurland, 819 So. 2d 267 (Fla. 2d DCA 2002).
Here, the Wolfes' joint offer specifically stated that it was made to resolve
all claims and counterclaims pending in the instant litigation. The settlement amount
was $25,000, of which $12,500 would be paid by Mr. Wolfe and $12,500 by Mrs. Wolfe.
To accept the $25,000 as the full amount due, including attorney's fees and costs,
Culpepper would have to dismiss all claims against both Mr. and Mrs. Wolfe with
prejudice. Additionally, Culpepper would have to agree to discharge the claim of lien
and notice of lis pendens filed against the real property. Culpepper rejected this offer of
judgment and the final judgment in its favor was $9074.06, which is considerably less
than $18,750, or twenty-five percent less than the $25,000 offer.
In Gorka, our supreme court gave litigants guidance in making a proposal
for settlement by saying:
[W]e have drawn from the plain language of rule 1.442 the
principle that to be valid and enforceable a joint offer must
(1) state the amount and terms attributable to each party,
and (2) state with particularity any relevant conditions. See
Fla. R. Civ. P. 1.442(c)(3). A review of our precedent
reveals that this principle inherently requires that an offer of
judgment must be structured such that either offeree can
independently evaluate and settle his or her respective claim
by accepting the proposal irrespective of the other parties'
decisions. Otherwise, a party's exposure to potential
consequences from the litigation would be dependently
interlocked with the decision of the other offerees.
36 So. 3d at 650. Although Gorka does not control because it is factually
distinguishable—it involved a single offeror and joint offerees—it does approve of joint
offers that comply with the strictures of the statute and the rule.
"A proposal may be made by or to any party or parties and by or to any
combination of parties properly identified in the proposal. A joint proposal shall state the
amount and terms attributable to each party." Fla. R. Civ. P. 1.442(c)(3). The Wolfes'
proposal for settlement was such a joint offer—$12,500 from each of them. See Willis
Shaw, 849 So. 2d at 278-79 ("A strict construction of the plain language of rule
1.442(c)(3) requires that offers of judgment made by multiple offerors must apportion
the amounts attributable to each offeror."). And the Wolfes' joint offer was made to but
one offeree—Culpepper. It is Culpepper and Culpepper alone which had to decide
whether to accept the joint offerors' proposal for settlement. The trial court erred in
concluding that the Wolfes' offer was invalid per se because it was a joint offer
conditioned on dismissing charges against both offerors. The Wolfes' joint offer met all
statutory and rule requirements to be valid. Cf. Andrews v. Frey, 66 So. 3d 376, 378-79
(Fla. 5th DCA 2011) (holding that although only one offeror made two proposals
separately to the two offerees but included another offeror in each proposal, the offer
was not ambiguous and did not transform the proposals into joint offers and thus the
offers were valid).
We find further support for our conclusion in Rossmore v. Smith, 55 So. 3d
680 (Fla. 5th DCA 2011), which is factually indistinguishable. After being sued by Mr.
Rossmore, the two defendants twice made offers of judgment to him. Each offer
contained identical terms: each defendant agreed to contribute $50 toward a total
settlement offer of $100. Upon acceptance, Mr. Rossmore was to voluntarily dismiss
the lawsuit with prejudice. Mr. Rossmore did not accept either offer.
The Fifth District noted, "Rossmore was the sole plaintiff. The proposal
was directed to him, and his decision to reject or accept the offer was not dependent on
any other person." Id. at 681. Thus, the Fifth District concluded that neither offer was
an improper joint undifferentiated offer because "[t]he amount attributable to [each
defendant] individually was clearly set forth in the offer of judgment." Id.
Like the defendants' offer in Rossmore, the Wolfes' offer was not an
undifferentiated offer of settlement or otherwise improper. Like Mr. Rossmore,
Culpepper had an ample opportunity to evaluate the joint offer as it related to him alone,
and it elected not to accept this valid offer. Therefore, the Wolfes are entitled to their
attorney's fees as it related to Culpepper's invalid claim of lien that was dismissed early
in the proceedings. Like the offerees in Andrews, 66 So. 3d at 380, Culpepper
"miscalculated the value of [its] claims in rejecting the proposal[ ] for settlement and
must now pay the [Wolfes'] attorney's fees and costs."
B. Recovering Costs From The Nonprevailing Party Pursuant to Section 57.041
Culpepper contends that the trial court should have awarded it attorney's
fees and costs pursuant to either section 713.29, Florida Statutes (2006),2 its demands
for judgment, or section 57.041.(1), Florida Statutes (2006). We find merit only in the
argument that the trial court erred in denying Culpepper costs pursuant to section
57.041. Section 57.041(1) provides that "[t]he party recovering judgment shall recover
all his or her legal costs and charges which shall be included in the judgment . . . ."
As mentioned above, Culpepper recovered a net judgment against the
Wolfes' for the sum of $9074.06. Under the plain reading of section 57.041, and despite
Culpepper's contention that the trial court erred in determining that it was not the
prevailing party in this litigation,3 Culpepper is entitled to an award of costs under
The trial court erred in denying an award of fees to the Wolfes under their
offer of judgment and an award of costs to Culpepper under section 57.041. In all other
respects, we affirm the final judgment. Upon remand, the trial court shall hold the
necessary hearing to determine the respective amounts due, if any.
Section 713.29 provides:
In any action brought to enforce a lien or to enforce a
claim against a bond under this part, the prevailing party is
entitled to recover a reasonable fee for the services of her or
his attorney for trial and appeal or for arbitration, in an
amount to be determined by the court, which fee must be
taxed as part of the prevailing party's costs, as allowed in
The trial court found, and we do not disturb this finding, that neither party
was the "prevailing party" in this litigation.
Affirmed in part, reversed in part, and remanded for further proceedings in
accord with this opinion.
DAVIS and KELLY, JJ., Concur.