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Calculating the Judgment Obtained in Determining Proposals for Settlement

There are numerous prior postings discussing proposals for settlement / offers of judgment.  As discussed, they create an argument to recover attorney’s fees from the date of the proposal on forward.  A recent case discusses the thorny issues of determining whether the “judgment obtained” by the plaintiff meets the threshold to recover attorney’s fees when serving a proposal for settlement under Florida Statute s. 768.79.

In this case, the plaintiff served a proposal for settlement on March 21, 2019. The defendant did not accept the proposal.  The case proceeded to trial and the jury returned a verdict in favor of the plaintiff.  The plaintiff, besides moving to tax costs as the prevailing party, moved for attorney’s fees based on her proposal for settlement.  The basis of the motion was that when the trial court taxed all costs incurred before service of the proposal for settlement to determine the “judgment obtained,” the plaintiff meets the threshold to recover attorney’s fees under s. 768.79.  The issue, however, was the plaintiff’s prepayment for certain expert depositions – the depositions were paid prior to the proposal for settlement but the actual depositions did not take place until after the proposal for settlement. “It is undisputed that if those prepaid expert fees are not included in the calculation, the judgment obtained would be below the threshold to trigger a fee award under section 768.79.”  The State of Elfriede Z. Sweeney v. Washington, 46 Fla. L. Weekly D1972b (Fla. 2d DCA 2021).

Section 768.79(6)(b) provides that when a defendant does not accept an offer and “the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff” is entitled to recover her postoffer attorney’s fees and costs. Those amounts are to be “calculated in accordance with the guidelines promulgated by the Supreme Court.” § 768.79(6)(b). Because section 768.79 is “penal in nature” and because it is “in derogation of the common law rule that a party is responsible for its own attorney’s fees,” the statute “must be strictly construed.” Diamond Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 372 (Fla. 2013).

Washington, supra.

The “judgment obtained” hinged on whether to include or exclude the prepayment for certain expert depositions.   The appellate court held they were not properly included meaning the plaintiff was NOT entitled to attorney’s fees under her proposal for settlement:

Here, we must view the costs as to whether they were taxable at the time [the plaintiff] served her proposal on March 21, 2019. . The fact that the experts’ deposition fees were prepaid before that date does not necessarily mean that they were taxable as costs for purposes of an attorney’s fee award under section 768.79. [Plaintiff], as the moving party, had the burden “to show that all requested costs were reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was taken.”  [Plaintiff] thus had the burden to establish that the doctors’ deposition fees were reasonably necessary. When the proposal was served, neither doctor’s deposition had been taken. Thus, their fees at the time of the proposal would not have been taxable under the guidelines. 


We conclude that the two prepaid expert deposition fees are not taxable for purposes of a fee award under section 768.79(6)(b). Thus, the trial court erred by including those expert deposition fees in the calculation for the judgment obtained. Without those two deposition fees in the calculation, it is undisputed that the judgment obtained falls below the statutory threshold to trigger a fee award under section 768.79(6)(b). Thus, we reverse the trial court’s May 15, 2020, order to the extent that it granted [plaintiff’s] motion for attorney’s fees and awarded fees, and we reverse the July 27, 2020, final judgment for attorney’s fees and costs to the extent that it awarded attorney’s fees to [the plaintiff].

Washington, supra (internal citations omitted)

Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.


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