Graham v. Peter K. Yeskel 1996 Irrevocable Trust
928 So. 2d 371
Fla. Dist. Ct. App.
2006
Check Treatment

Lead Opinion

GROSS, J.

We affirm the trial court’s denial óf appellants’ motion for attorney’s fees.

Richard and Ann Graham were the defendants in the circuit court. Their joint proposal for settlement did not apportion the offer between them, so that it did not “state the amount and terms attributable to- each party,” as required by Florida Rule of Civil Procedure 1.442(c)(3). This *372deficiency in the offer was fatal to their motion for fees.

Lamb v. Matetzschk, 906 So.2d 1037, 1042 (Fla.2005), holds that “[r]ule 1.442(c)(3) expressly requires that a joint proposal for settlement made by two or more parties be differentiated. The rule makes no distinction between multiple plaintiffs and multiple defendants, nor does it make any distinction on the theox-y of liability.”

Lamb relied primarily on Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). Willis Shaw invalidated a proposal that did not apportion a settlement amount between two plaintiffs to a single defendant. 849 So.2d at 278-79. Despite the fact that Willis Shaw involved an offer from multiple plaintiffs to a single defendant, the Lamb court stated that “[t]he same logic nonetheless applies to a situation where there is an undifferentiated offer from a single plaintiff to multiple defendants. Each defendant should be able to settle the suit knowing the extent of his or her financial responsibility.” Id. at 1040.

Here, the Grahams argue that they were sued on a “single unified claim” directed at their joint ownership of real property, so that their offer of settlement was valid. However, cases decided after Lamb recognize that the supreme court has adopted a bright line rule requiring apportionment under rule 1.442(c)(3). That the Grahams made their joint proposal for settlement as tenants by the entireties does not alter the bright line rule.

Heymann v. Free, 913 So.2d 11 (Fla. 1st DCA 2005), held that attorney’s fees were not awardable where a single plaintiff made a proposal for settlement to multiple defendants, because “the [plaintiffs] settlement proposal failed to apportion the offer between [defendants].... ” Id. at 12. The court recognized that it was “constrained by Lamb ” in a case where one defendant, the spouse of the other defendant, was vicariously liable under the dangerous instrumentality doctrine. Id.

In a situation similar to this appeal, the second district ruled that an unappor-tioned offer of judgment from multiple defendants to a single plaintiff failed to comply with rule 1.442. 1 Nation Technology Corp. v. A1 Teletronics, Inc., 924 So.2d 3 (Fla. 2d DCA 2005). The court found that Lamb controlled, stating:

Regardless of the fact that [one of the defendants] was vicariously liable for [the other defendant] or that the offer stated they would be jointly and severally responsible for the settlement amount, because the offer they presented to [plaintiff] did not differentiate between the two offeroi's, the offer did not comply with the clarification of rule 1.442(c) made by the supreme court in Lamb. Thus, the defendants were not entitled to fees and costs based on this offer of judgment.

1 Nation Tech. Corp., 924 So.2d 3, 6.

Finally, in D.A.B. Constructors, Inc. v. Oliver, 914 So.2d 462, 463 (Fla. 5th DCA 2005), two defendants jointly and severally liable under a theory of vicarious liability made a joint pi'oposal for settlement that failed to apportion “the amount of the offer between the defendants.” Id. at 463. The fifth district affirmed the trial court’s denial of fees because of the failure of the offers to apportion, “[i]n light of the extremely broad language” in Lamb. See id.

Based on Lamb, the tidal court did not err when it denied appellants’ motion for attorney’s fees.

Affirmed.

MAY, J„ and IMPERATO, CYNTHIA, Associate Judge, concur.



Rehearing

*373 ON MOTION FOR REHEARING

GROSS, J.

Some motions for rehearing take us to task for not writing at all. Others criticize us for not deciding correctly. Appellants’ motion for rehearing in this case is of the latter variety.

The seven page motion states that the panel opinion overlooked or misapprehended a number of points, including the following:

1. This case did “not involve any issue of vicarious liability, derivative liability, or joint and several liability.”
2. This case involved a claim “made against joint defendants — Richard and Ann Graham, a husband and wife who were sued as the owners of tenancy by the entireties property.”
3. The panel decision “did not cite or even mention this Court’s recent decision” in Hall v. Lexington Ins. Co., 895 So.2d 1161, 1165 (Fla. 4th DCA 2005), which compels a decision in appellants’ favor.

We write to discuss these issues.

This case arose from a controversy over a boat slip at a yacht club community. Appellee, The Peter K. Yeskel 1996 Irrevocable Trust, owns a townhouse at the yacht club. The Grahams also own a townhouse. The Grahams own their unit as tenants by the entirety.

Yeskel and the Grahams disagreed about the proper location of an identified boat slip; the Grahams contended that the slip was located in front of Yeskel’s unit, on the Intracoastal Waterway, while Yesk-el believed that the correct location was in a lagoon off the Intracoastal.

Yeskel sued the Grahams in a five-count complaint — trespass, ejectment, declaratory relief concerning the boat slip, injunc-tive relief directed at the Grahams’ use of the slip, and conversion. The conversion count sought damages against the Grahams, jointly and severally.

The Grahams made the unapportioned offer of settlement described in the original opinion. The Grahams prevailed in a bench trial, and the trial court entered final judgment in their favor.

Although the Grahams owned their unit as tenants by the entirety, at least two of the counts — trespass and conversion — are torts for which Yeskel would have to have proved a separate and distinct liability for each Graham in order to recover damages. Different acts by each Graham may have given rise to different degrees of responsibility. For the purpose of deciding the required contents of a rule 1.442 offer of judgment, we see no distinction between this case and the ones cited in the panel opinion.

More significantly, as we wrote in the original panel opinion, we read Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005), as adopting “a bright line rule requiring apportionment under rule 1.442(c)(3).” To us a bright line rule means that it applies in all proposal for settlement cases, without exception. Rule 1.442 applies to “all proposals for settlement authorized by Florida law ...” Fla. R. Civ. P. 1.442(a). In Lamb and rule 1.442(a), we believe that the supreme court, like Dr. Seuss’s Horton the elephant,1 meant what it said and said what it meant — rule 1.442(c) applies in all cases where proposals for settlement are authorized by Florida law, without an exception for claims against litigants relating to property they own as tenants by the entirety.

The Grahams complain of the difficulty of apportioning damages between them in *374an offer of settlement. We see no difference between this argument and the one rejected by the supreme court in Lamb:

Lamb asserts that it is impossible to apportion an offer of settlement when one of the offerees is only vicariously liable. It may take some creative drafting to fashion an offer of settlement when one party is only vicariously liable. However, we are confident that the lawyers of this State can and will draft an offer that will satisfy the requirements of the rule.

906 So.2d at 1041.

Before Lamb, some district courts of appeal loosely applied the form and content requirements of rule 1.442(c), asking whether it was fair or logical to apply the requirements of the subsection in a given case. See Safelite Glass Corp. v. Samuel, 771 So.2d 44 (Fla. 4th DCA 2000); Barnes v. Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003). Our decision in Hall followed this approach, relying on the analysis in Safe-lite and Kellogg. The first district declined to follow Safelite in Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 817 So.2d 1050, 1052-53 (Fla. 1st DCA 2002); the supreme court approved the first district’s decision in Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276 (Fla.2003). Lamb expressly disapproved Barnes. Lamb, 906 So.2d at 1038. We do not believe that our application of rule 1.442 to the apportionment issue in Hall has survived the supreme court’s decision in Lamb.

The motion for rehearing and rehearing en banc is denied.

MAY, J„ and IMPERATO, CYNTHIA, Associate Judge, concur.

Notes

. Dr. Seuss, Horton Hatches the Egg (Random House, Inc., 1982) (1954).