While there are times I will serve a proposal for settlement to create an argument to recover attorney’s fees, I always tell clients proposals for settlement create nothing more than an argument. In other words, you cannot bank on actually recovering attorney’s fees because of conflicting case law or case law that finds reasons to invalidate a proposal for settlement. Thus, when I serve a proposal for settlement, I make sure the client’s expectations are tempered. But, when I receive a proposal for settlement on behalf of a client, I make sure the client appreciates that they can be liable for attorney’s fees regardless of the conflicting case law in effect. Proposals for settlement, in my opinion, have become head scratchers.
The case of Starboard Cruise Services, Inc. v. DePrince, 43 Fla. L. Weekly D2581a (Fla. 3d DCA 2018) exemplifies the confusing nature of proposals for settlement. In this case, the defendant served a proposal for settlement conditioned on the plaintiff releasing all claims asserted in his amended complaint and dismissing the amended complaint with prejudice. The plaintiff’s amended complaint contained claims for monetary relief and a specific performance claim for equitable relief (where non-monetary damages were sought). Prior to trial, the plaintiff dismissed his equitable claim and proceeded to trial only on his claim for monetary relief. The jury found in favor of the defendant and the defendant filed a motion for attorney’s fees based on its proposal for settlement (that the plaintiff did not accept). The trial court denied the defendant’s motion for attorney’s fees finding that the proposal for settlement was invalid since it applied to plaintiff’s claims for monetary relief and equitable relief.
The appellate court agreed with the trial court finding that the defendant’s proposal for settlement was invalid because it was conditioned on the plaintiff releasing all his claims—his claims for monetary relief and his claim for equitable relief (where non-monetary relief was also sought). A proposal for settlement only applies to claims for money damages.
Due consideration is required when serving a proposal for settlement. Even with that consideration, there is still the possibility that the proposal for settlement will be deemed invalid, as was the circumstance in this case.
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