Arbitration & Mediation

FL Supreme Court Enforces "Premature" Motion for Fees on Expired Proposal for Settlement

By Christopher B. Hopkins, Esq.

Proposals for Settlement are tough legal creatures. Receipt of one requires a conference with the client. Timing is an issue (too early? too late?). Calculating possible exposure requires... a calculator. And enforcement requires luck. At least in the current Florida environment.

There have been a string of cases indicating that attaching releases or requiring unusual monetary terms is a death sentence for PFS enforcement. While the Supreme Court has not helped clear that thicket of wording, the case of Sandra Frosti v. Laverne Creel should clarify issues of timing.

The procedural history of this case is long and the High Court arguably spent too much time on it. Suffice it to say, the Plaintiff served two Proposals for Settlement of $18k for compensatory damages and $1 for punitive. The jury gave her $21k and $74k respectively so the Plaintiff prevailed on the Proposals. The question than became when the Plaintiff should have filed the Proposals and her motion for fees and costs.

Here is the take-away lessons:

1. Neither Florida Rule of Civil Procedure 1.442 nor Florida Statute 768.79 define "necessary to enforce" relative to when to file the Proposal.
2. Look up to see the wording of the appropriate version of Florida Rule of Civil Procedure 1.525. The current version says you have 30 days from judgment to seek fees and costs.
3. The prevailing party should obtain a judgment reserving jurisdiction for fees and costs.
4. The prevailing party should then, after judgment, file the Proposal and the Motion for Fees. If it is filed before, a motion to strike should be granted with leave for the prevailing party to re-file after judgment.
5. The PFS will turn on the judgment obtained / net judgment entered and not confused with the jury's verdict.

Full post as published by Florida Arbitration Law on April 03, 2008 (boomark / email).