In Deer Valley Realty, Inc. v. SB Hotel Associates, LLC, No. 4D14-2051 & 4D15-830, 41 Fla. L. Weekly D1036a (Fla. 4th DCA Apr. 27, 2016), the Fourth District analyzed proposals for settlement where the complaint included a claim for attorney’s fees.

Paragraph five of the proposals stated:

The claims to be resolved by acceptance of this proposal for settlement are all claims against Defendant that were raised in this action or could have been raised in this action by Plaintiff, and any claims against Plaintiff, that were raised in this action or could have been raised in this action by Defendant.

Paragraph seven of the proposals stated:

“This proposal for settlement is inclusive of all attorney’s fees and costs incurred by Plaintiff or Defendant.” The trial court granted defendant’s motion for attorney’s fees.

On appeal, the plaintiff argued that the trial court erred in awarding attorney’s fees because the defendant’s proposals did not comply with Florida Rule of Civil Procedure 1.442 and Florida Statutes Section 768.79 “because they fail to state whether attorney’s fees are part of the claim for relief.” The Fourth District agreed and held that “[w]hile the proposals included attorney’s fees, they neglected to include a statement that ‘attorney’s fees [were] part of the legal claim.’ The proposals satisfied only half of rule 1.442(c)(2)(F)’s requirements.” The Court relied on the Florida Supreme Court decision in Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 377 (Fla. 2013), which held:

[E]ven if section 768.79 applied in this case, Diamond Aircraft would not be entitled to attorney’s fees under that section because Diamond Aircraft’s offer of settlement did not strictly comply with rule 1.442, as it did not state that the proposal included attorney’s fees and attorney’s fees are part of the legal claim.

Thus, the Court concluded that “the proposals for settlement failed to strictly comply with rule 1.442(c)(2)(F) because they failed to state whether the attorney’s fees were part of the legal claim.”

Accordingly, if a claim for attorney’s fees is pled in the complaint, parties must ensure that the proposal for settlement states whether or not attorney’s fees are part of the claim. If this language is not included, then the proposal will be deemed unenforceable.

Notably, in the Fourth District only, if the complaint does not include a claim for attorney’s fees, there is no requirement for the proposal to include this language. However, if you are in any other District, you must include this language. This conflict is currently pending before the Florida Supreme Court.

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