Cobb v. Durando
111 So. 3d 277
Fla. Dist. Ct. App.2013Background
- Durandos obtained a money judgment against Cobb for breach of a roofing contract; trial court awarded $49,990.39.
- Durandos sought attorney’s fees under Florida Statutes § 768.79 and Rule 1.442 after Cobb rejected their judgment demand.
- Durandos’ demand for judgment did not apportion the amount between the two plaintiffs, violating Rule 1.442(c)(3).
- Florida law requires strict apportionment of offers for settlement when multiple plaintiffs are involved (apportionment rule).
- Durandos argued tenancy by the entirety shielded them from needing apportionment; court rejected this exemption argument.
- Appellate court reversed the fee award and final judgment awarding fees to Durandos.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does Rule 1.442 require apportionment of a joint offer? | Durandos contend no apportionment is needed due to joint tenancy. | Cobb contends rule requires apportionment for multiple plaintiffs. | Yes, apportionment required; the offer was invalid without it. |
| Does tenancy by the entirety exempt a joint offer from apportionment? | Durandos rely on tenancy by entirety to avoid split. | Cobb argues no exemption applies; contract claim and rule require apportionment. | No exemption; apportionment still required. |
Key Cases Cited
- Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla. 2003) (strict apportionment required for offers by multiple plaintiffs)
- Allstate Ins. Co. v. Materiale, 787 So.2d 173 (Fla. 2d DCA 2001) (apportionment rule applies to multi-plaintiff offers)
- McElroy v. Whittington, 867 So.2d 1241 (Fla. 4th DCA 2004) (strict construction of apportionment rule)
- Meyer v. Hutchinson, 861 So.2d 1185 (Fla. 5th DCA 2003) (apportionment requirements for settlements)
- Graham v. Peter K. Yeskel 1996 Irrevocable Trust, 928 So.2d 371 (Fla. 4th DCA 2006) (joint offers by spouses do not automatically exempt from apportionment)
- Hennessy v. White Mop Wringer Co., 693 So.2d 1088 (Fla. 2d DCA 1997) (release mechanics can affect claims when divided between parties)
- Whitehurst v. Camp, 699 So.2d 679 (Fla. 1997) (merger doctrine implications on single/double claims)
- Variety Children’s Hosp. v. Perkins, 445 So.2d 1010 (Fla. 1983) (merger and single-action concepts in settlement context)
- Weston Orlando Park, Inc. v. Fairwinds Credit Union, 86 So.3d 1186 (Fla. 5th DCA 2012) (duplex or joint claims in settlement scenarios)