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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT
IN AND FOR SARASOTA COUNTY, FLORIDA
MAJOR TRIAL DIVISION T
MCCANN HOLDINGS, LTD.,
Plaintiff,
VS. CASE NO.: 2011 CA 003897 NC
SDC COMMUNITIES, INC.,
VOTT-A, LLC, VOTT-B, LLC,
VOTT-C, LLC, VOTT-D, LLC,
HENRY RODRIGUEZ, and
RANDALL BENDERSON,
Defendants.
(1) ORDER VACATING THE COURT’S PRIOR AWARD OF ATTORNEY’S FEES;
(2) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS SDC
COMMUNITIES, INC. AND HENRY RODRIGUEZ’S MOTION FOR ATTORNEY?’S
a ee a A tL Si tS
FEES AND COSTS
THIS MATTER is before the Court on Plaintiff's Motion for Reconsideration or
Rehearing, filed 24 August 2016. Defendants SDC Communities, Inc. (SDC) and Henry
Rodriguez’s (Rodriguez) filed a Motion for Attorney’s Fees and Costs on 3 June 2015, and the
Court granted the motion by an order rendered 17 August 2016. The Court has carefully
considered the motions, the court file, and applicable law, and is otherwise duly advised in the
premises.
Facts
On 9 July 2012, SDC and Rodriguez each served an Offer of Judgment on Plaintiff,
offering payment of $5,000, with each party to bear its own costs and attorney’s fees related to
Plaintiff's claims. Other than the respective identification of SDC and Rodriguez as the offeror,
the two offers are identical. The opening sentence of each offer provides that it is made to settle
all claims brought by Plaintiff against SDC and Rodriguez, respectively. However, each offer lists
Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLamong its terms that “The claims the Offer is attempting to resolve are all claims brought by
Plaintiff in this action.” Plaintiff did not accept either offer, and the Court ultimately entered a
Corrected Final Judgment in favor of SDC and Rodriguez on all of Plaintiffs claims against them.
At all times relevant to SDC and Rodriguez’s offers, Plaintiff's Second Amended
Complaint served as the operative pleading in this case. The Second Amended Complaint included
a claim for declaratory relief against SDC in addition to claims for monetary damages against SDC
and Rodriguez.
Discussion
SDC and Rodriguez seek attorney’s fees and costs pursuant to Fla. R. Civ. P. 1.442 and
§ 768.79, Florida Statutes. In response, Plaintiff argues that SDC and Rodriguez’s offers: (1) fail
to comply with Rule 1.332 and § 768.79; (2) improperly apply to claims seeking non-monetary
relief; (3) are ambiguous regarding the claims to which they apply; (4) constitute joint proposals
that fail to state the amount and terms attributable to each party; and (5) were not made in good
faith. Although subject to strict construction, the statute and corresponding Rule do not require
settlement offers be devoid of any ambiguity; they merely require “that the settlement proposal be
sufficiently clear and definite to allow the offeree to make an informed decision without needing
clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006);
Alamo Financing, L.P. v. Mazoff, 112 So. 3d 626, 628-29 (Fla. 4th DCA 2013).
Punitive Damages and Attorney’s Fees
Rule 1.442(c)(2)(E) requires that a proposal for settlement “state with particularity the
amount proposed to settle a claim for punitive damages, if any.” The “if any” language of the Rule
requires inclusion of punitive damages terms “only when the pleadings contain a pending claim
for punitive damages,” and “the rule does not require a party to include needless ‘not applicable’
language in the proposal.” Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002). Here,
Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLPlaintiff did not at any point bring any claims for punitive damages in this case. Accordingly,
failure to include such terms did not render the offers at issue noncompliant with the Rule.
Rule 1.442(c)(2)(F) requires that a proposal for settlement “state whether the proposal
includes attorney’s fees and whether attorney’s fees are part of the legal claim.” Plaintiff concedes
that the offers explicitly include attorney’s fees, but nonetheless argues that they fail to identify
whether attorney’s fees are part of Plaintiff's claims. Notwithstanding this minor omission,
whether attorney’s fees are part of Plaintiff's claims against SDC and Rodriguez is rendered
immaterial by the explicit inclusion of attorney’s fees in the Defendants’ offers. Compare
Diamond Aircraft Industries, Inc. vy. Horowitch, 107 So. 3d 362 (Fla. 2013) (finding settlement
proposal that failed to state whether it included attorney’s fees or whether attorney’s fees were part
of the legal claim was ambiguous where the complaint contained a legal claim for attorney’s fees)
with Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA
2003) (finding offer to settle “all counts of the complaint, inclusive of costs and interest”
sufficiently broad to include any claim for attorney’s fees that may have been pled). The explicit
terms in this case leave no room for ambiguity, mistake, or misapprehension: the offers include
attorney’s fees and costs, whether or not same was a part of Plaintiff's legal claims.
Non-Monetary Relief, Joint Proposals, and Ambiguity as to Applicable Claims
Section 768.79 provides for recovery of reasonable costs and attorney’s fees in “any civil
action for damages.” Accordingly, the statute “does not apply to an action in which a plaintiff
seeks both damages and equitable relief, and in which the defendant has served a general offer of
judgment that seeks release of all claims.” Diamond Aircraft, 107 So. 3d at 374. The instant case,
however, does not present such a scenario. The plaintiff in Diamond Aircraft brought both
monetary and non-monetary claims against a single defendant. Jd. at 365. The defendant’s offer
of judgment attempted to resolve all claims between the plaintiff and the defendant, whichnecessarily encompassed all of the plaintiff’s claims in the action, including the claims for non-
monetary relief. Id. at 365-66.
The Court must read the phrases “all claims brought by Plaintiff in this action” and “all
claims in the Complaint” within the context of the individual offeror, the individual offeree, the
entire offer, and the underlying litigation. See Sec. Professionals, Inc. v. Segall, 685 So. 2d 1381,
1383 (Fla. 4th DCA 1997). See also Alamo Financing, 112 So. 3d at 630 (“The plaintiffs
interpretation of the proposal for settlement ignores the well-established principle that ‘the
intention of the parties must be determined from an examination of the entire contract and not from
separate phrases or paragraphs.’”’) (quoting Moore v. State Farm Mut. Auto. Ins. Co., 916 So. 2d
871, 875 (Fla. 2d DCA 2005)). As the Second Amended Complaint contained claims for both
monetary and non-monetary relief against SDC, and SDC made a general offer seeking release of
“all claims” between Plaintiff and SDC, the Court finds that SDC is not entitled to attorney’s fees
under § 768.79 pursuant to its general settlement offer.
Unlike SDC, all claims against Rodriguez in the Second Amended Complaint were limited
to claims of monetary relief. Accordingly, the language of Rodriguez’s offer cannot reasonably
be construed as extending the offer to non-monetary claims against other parties. Further, because
the language of Rodriguez’s offer clearly states an intent to settle all claims between Plaintiff and
Rodriguez, Plaintiff's attempted construction of the offers as joint proposals and as ambiguous
regarding the applicable claims is similarly unavailing.
Good Faith
Finally, § 768.79(7)(a) grants discretion for a court to disallow an award of costs and
attorney’s fees under the statute if the court determines that an offer was not made in good faith.
Whether a settlement offer was made in good faith depends on whether the offeror had a reasonable
foundation to make the offer. Gawtrey v. Hayward, 50 So. 3d 739, 743 (Fla. 2d DCA 2010). A
nominal offer is made with a reasonable foundation where “the undisputed record strongly
4
Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLindicate[s] that [the defendant] had no exposure in the case.” Event Services Am., Inc. v. Ragusa,
917 So. 2d 882, 884 (Fla. 3d DCA 2005). Here, SDC and Rodriguez’s offers, although nominal,
were nonetheless based on their assessment that they owed Plaintiff no liability under Plaintiffs
causes of action against them. The Court granted directed verdicts in favor of SDC and Rodriguez
~ on the following bases: (1) legislative privilege precluded any means of knowing why the County
Commission took certain actions; (2) Plaintiffs claim of tortious interference could not be
premised on a legislative expectancy; and (3) absence of liability on the underlying claims
precluded liability on Plaintiff's conspiracy claim. These determinations are based largely on
issues of law, rather than issues of fact that required analysis of all discovery in this case. As such,
the Court cannot say that Rodriguez’s assessment of no liability was unreasonable at the time the
offer was made. This conclusion is further buttressed by the Court’s consistent expression of doubt
throughout this case regarding Plaintiff's theories of liability against SDC and Rodriguez.
Based on the foregoing, itis ORDERED AND ADJUDGED that:
1. The Court’s “Order Granting SDC Communities, Inc. and Henry Rodriguez’s Motion
for Attorney’s Fees and Costs,” rendered 17 August 2016, is VACATED.
2. Defendants SDC Communities, Inc. and Henry Rodriguez’s Motion for Attomney’s
Fees and Costs is GRANTED as to Henry Rodriguez and DENIED as to SDC
Communities, Inc.
DONE AND ORDERED in Chambers, Bradenton,
day of Oc hab 2016.
Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLCERTIFICATE OF SERVICE
I certify that on this, YU Mpay of October 2016, copies of the foregoing order were furnished
by mail to: Steven D. Hutton, Esq., Hutton & Dominko, 2639 Fruitville Road, Suite 302,
Sarasota, FL 34237; Morgan R. Bentley, Esq., Bentley & Bruning P.A., 783 S. Orange Ave.,
Suite 220, Sarasota, FL 34236; Edward Vogler, II, Esq., Vogler Ashton, PLLC, 2411-A Manatee
Ave. W., Bradenton, FL 34205; Steven J. Chase, Esq., Shumaker, Loop & Kendrick, LLP, 240
S. Pineapple Ave., 10" Floor, Sarasota, Florida 34236; Steven L. Brannock, Esq., Brannock &
Humphries, 100 S. Ashley Drive, Ste. 1130, Tampa, Florida 33602; Stuart C. Markman, Esq.,
Kynes, Markman & Felman, P.A., P.O. Box 3396, Tampa, Florida 33601; and Hala Sandridge,
Esq., Buchanan, Ingersoll & Rooney, P.C., P.O. Box 1438, Tampa, Florida 33601.
Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL
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IN THE CIRCUIT COURT OF THE TWELFTH JUDICIAL CIRCUIT IN AND FOR SARASOTA COUNTY, FLORIDA MAJOR TRIAL DIVISION T MCCANN HOLDINGS, LTD., Plaintiff, VS. CASE NO.: 2011 CA 003897 NC SDC COMMUNITIES, INC., VOTT-A, LLC, VOTT-B, LLC, VOTT-C, LLC, VOTT-D, LLC, HENRY RODRIGUEZ, and RANDALL BENDERSON, Defendants. (1) ORDER VACATING THE COURT’S PRIOR AWARD OF ATTORNEY’S FEES; (2) ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS SDC COMMUNITIES, INC. AND HENRY RODRIGUEZ’S MOTION FOR ATTORNEY?’S a ee a A tL Si tS FEES AND COSTS THIS MATTER is before the Court on Plaintiff's Motion for Reconsideration or Rehearing, filed 24 August 2016. Defendants SDC Communities, Inc. (SDC) and Henry Rodriguez’s (Rodriguez) filed a Motion for Attorney’s Fees and Costs on 3 June 2015, and the Court granted the motion by an order rendered 17 August 2016. The Court has carefully considered the motions, the court file, and applicable law, and is otherwise duly advised in the premises. Facts On 9 July 2012, SDC and Rodriguez each served an Offer of Judgment on Plaintiff, offering payment of $5,000, with each party to bear its own costs and attorney’s fees related to Plaintiff's claims. Other than the respective identification of SDC and Rodriguez as the offeror, the two offers are identical. The opening sentence of each offer provides that it is made to settle all claims brought by Plaintiff against SDC and Rodriguez, respectively. However, each offer lists Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLamong its terms that “The claims the Offer is attempting to resolve are all claims brought by Plaintiff in this action.” Plaintiff did not accept either offer, and the Court ultimately entered a Corrected Final Judgment in favor of SDC and Rodriguez on all of Plaintiffs claims against them. At all times relevant to SDC and Rodriguez’s offers, Plaintiff's Second Amended Complaint served as the operative pleading in this case. The Second Amended Complaint included a claim for declaratory relief against SDC in addition to claims for monetary damages against SDC and Rodriguez. Discussion SDC and Rodriguez seek attorney’s fees and costs pursuant to Fla. R. Civ. P. 1.442 and § 768.79, Florida Statutes. In response, Plaintiff argues that SDC and Rodriguez’s offers: (1) fail to comply with Rule 1.332 and § 768.79; (2) improperly apply to claims seeking non-monetary relief; (3) are ambiguous regarding the claims to which they apply; (4) constitute joint proposals that fail to state the amount and terms attributable to each party; and (5) were not made in good faith. Although subject to strict construction, the statute and corresponding Rule do not require settlement offers be devoid of any ambiguity; they merely require “that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006); Alamo Financing, L.P. v. Mazoff, 112 So. 3d 626, 628-29 (Fla. 4th DCA 2013). Punitive Damages and Attorney’s Fees Rule 1.442(c)(2)(E) requires that a proposal for settlement “state with particularity the amount proposed to settle a claim for punitive damages, if any.” The “if any” language of the Rule requires inclusion of punitive damages terms “only when the pleadings contain a pending claim for punitive damages,” and “the rule does not require a party to include needless ‘not applicable’ language in the proposal.” Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA 2002). Here, Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLPlaintiff did not at any point bring any claims for punitive damages in this case. Accordingly, failure to include such terms did not render the offers at issue noncompliant with the Rule. Rule 1.442(c)(2)(F) requires that a proposal for settlement “state whether the proposal includes attorney’s fees and whether attorney’s fees are part of the legal claim.” Plaintiff concedes that the offers explicitly include attorney’s fees, but nonetheless argues that they fail to identify whether attorney’s fees are part of Plaintiff's claims. Notwithstanding this minor omission, whether attorney’s fees are part of Plaintiff's claims against SDC and Rodriguez is rendered immaterial by the explicit inclusion of attorney’s fees in the Defendants’ offers. Compare Diamond Aircraft Industries, Inc. vy. Horowitch, 107 So. 3d 362 (Fla. 2013) (finding settlement proposal that failed to state whether it included attorney’s fees or whether attorney’s fees were part of the legal claim was ambiguous where the complaint contained a legal claim for attorney’s fees) with Bennett v. American Learning Systems of Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003) (finding offer to settle “all counts of the complaint, inclusive of costs and interest” sufficiently broad to include any claim for attorney’s fees that may have been pled). The explicit terms in this case leave no room for ambiguity, mistake, or misapprehension: the offers include attorney’s fees and costs, whether or not same was a part of Plaintiff's legal claims. Non-Monetary Relief, Joint Proposals, and Ambiguity as to Applicable Claims Section 768.79 provides for recovery of reasonable costs and attorney’s fees in “any civil action for damages.” Accordingly, the statute “does not apply to an action in which a plaintiff seeks both damages and equitable relief, and in which the defendant has served a general offer of judgment that seeks release of all claims.” Diamond Aircraft, 107 So. 3d at 374. The instant case, however, does not present such a scenario. The plaintiff in Diamond Aircraft brought both monetary and non-monetary claims against a single defendant. Jd. at 365. The defendant’s offer of judgment attempted to resolve all claims between the plaintiff and the defendant, whichnecessarily encompassed all of the plaintiff’s claims in the action, including the claims for non- monetary relief. Id. at 365-66. The Court must read the phrases “all claims brought by Plaintiff in this action” and “all claims in the Complaint” within the context of the individual offeror, the individual offeree, the entire offer, and the underlying litigation. See Sec. Professionals, Inc. v. Segall, 685 So. 2d 1381, 1383 (Fla. 4th DCA 1997). See also Alamo Financing, 112 So. 3d at 630 (“The plaintiffs interpretation of the proposal for settlement ignores the well-established principle that ‘the intention of the parties must be determined from an examination of the entire contract and not from separate phrases or paragraphs.’”’) (quoting Moore v. State Farm Mut. Auto. Ins. Co., 916 So. 2d 871, 875 (Fla. 2d DCA 2005)). As the Second Amended Complaint contained claims for both monetary and non-monetary relief against SDC, and SDC made a general offer seeking release of “all claims” between Plaintiff and SDC, the Court finds that SDC is not entitled to attorney’s fees under § 768.79 pursuant to its general settlement offer. Unlike SDC, all claims against Rodriguez in the Second Amended Complaint were limited to claims of monetary relief. Accordingly, the language of Rodriguez’s offer cannot reasonably be construed as extending the offer to non-monetary claims against other parties. Further, because the language of Rodriguez’s offer clearly states an intent to settle all claims between Plaintiff and Rodriguez, Plaintiff's attempted construction of the offers as joint proposals and as ambiguous regarding the applicable claims is similarly unavailing. Good Faith Finally, § 768.79(7)(a) grants discretion for a court to disallow an award of costs and attorney’s fees under the statute if the court determines that an offer was not made in good faith. Whether a settlement offer was made in good faith depends on whether the offeror had a reasonable foundation to make the offer. Gawtrey v. Hayward, 50 So. 3d 739, 743 (Fla. 2d DCA 2010). A nominal offer is made with a reasonable foundation where “the undisputed record strongly 4 Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLindicate[s] that [the defendant] had no exposure in the case.” Event Services Am., Inc. v. Ragusa, 917 So. 2d 882, 884 (Fla. 3d DCA 2005). Here, SDC and Rodriguez’s offers, although nominal, were nonetheless based on their assessment that they owed Plaintiff no liability under Plaintiffs causes of action against them. The Court granted directed verdicts in favor of SDC and Rodriguez ~ on the following bases: (1) legislative privilege precluded any means of knowing why the County Commission took certain actions; (2) Plaintiffs claim of tortious interference could not be premised on a legislative expectancy; and (3) absence of liability on the underlying claims precluded liability on Plaintiff's conspiracy claim. These determinations are based largely on issues of law, rather than issues of fact that required analysis of all discovery in this case. As such, the Court cannot say that Rodriguez’s assessment of no liability was unreasonable at the time the offer was made. This conclusion is further buttressed by the Court’s consistent expression of doubt throughout this case regarding Plaintiff's theories of liability against SDC and Rodriguez. Based on the foregoing, itis ORDERED AND ADJUDGED that: 1. The Court’s “Order Granting SDC Communities, Inc. and Henry Rodriguez’s Motion for Attorney’s Fees and Costs,” rendered 17 August 2016, is VACATED. 2. Defendants SDC Communities, Inc. and Henry Rodriguez’s Motion for Attomney’s Fees and Costs is GRANTED as to Henry Rodriguez and DENIED as to SDC Communities, Inc. DONE AND ORDERED in Chambers, Bradenton, day of Oc hab 2016. Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FLCERTIFICATE OF SERVICE I certify that on this, YU Mpay of October 2016, copies of the foregoing order were furnished by mail to: Steven D. Hutton, Esq., Hutton & Dominko, 2639 Fruitville Road, Suite 302, Sarasota, FL 34237; Morgan R. Bentley, Esq., Bentley & Bruning P.A., 783 S. Orange Ave., Suite 220, Sarasota, FL 34236; Edward Vogler, II, Esq., Vogler Ashton, PLLC, 2411-A Manatee Ave. W., Bradenton, FL 34205; Steven J. Chase, Esq., Shumaker, Loop & Kendrick, LLP, 240 S. Pineapple Ave., 10" Floor, Sarasota, Florida 34236; Steven L. Brannock, Esq., Brannock & Humphries, 100 S. Ashley Drive, Ste. 1130, Tampa, Florida 33602; Stuart C. Markman, Esq., Kynes, Markman & Felman, P.A., P.O. Box 3396, Tampa, Florida 33601; and Hala Sandridge, Esq., Buchanan, Ingersoll & Rooney, P.C., P.O. Box 1438, Tampa, Florida 33601. Filed 10/07/2016 09:31 AM - Karen E. Rushing, Clerk of the Circuit Court, Sarasota County, FL