08 October

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Petition for Writ of Mandamus – Directing Trial Court to Take Action

“To be entitled to mandamus relief, the petitioner must demonstrate a clear legal right to the performance of a ministerial duty.” “A ministerial duty is one where there is no room for the exercise of discretion, and the performance being required is directed by law.” Further, “[a] writ of mandamus may issue to require a timely ruling on a matter pending before a lower tribunal.” If an appellate court issues a writ of mandamus, it merely “directs the trial court to take action, but does not decide the merits.” Griffin Windows and Doors, LLC v. Pomeroy, 47 Fla.L.Weekly D2013b (Fla. 3d...

17 September

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Dismissal Without Prejudice does NOT Trigger Attorney’s Fees under Proposal for Settlements

Posted by David Adelstein

in Trial Perspectives

When it comes to proposal for settlements from a defendant, there is both good news and bad news. If a defendant serves a proposal for settlement, and the case is dismissed without prejudice, the good news is that the defendant is dismissed. The bad news is that the dismissal without prejudice will NOT trigger the defendant’s right to obtain attorney’s fees pursuant to the proposal for settlement. In Annesser v. Innovative Service Technology Management Services Inc., 47 Fla.L.Weekly D1738a (Fla. 3d DCA 2022), a defendant served a proposal for settlement after being served with the complaint. The defendant moved to dismiss...

05 December

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Recovering Attorney’s Fees “Incurred” on Party’s Behalf

Posted by David Adelstein

in Trial Perspectives

Simply because a defendant does not pay his/her/its own attorney's fees does not mean the defendant is not entitled to recover attorney’s fees incurred on his/her/its behalf. That wouldn’t seem to make much sense since attorney's fees would have been incurred on the defendant’s behalf. Who actually writes the check to pay the attorney's fees is really of no moment, right? Therefore, do not bank your argument that another party will never be entitled to recover their fees because that other party did not personally pay for his/her/its own attorney's fees. This was the argument raised in Jain v. Buchanan...

14 November

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Attorney’s Fees do Not have to be Quantified in Proposal for Settlement

Posted by David Adelstein

in Trial Perspectives

Does a proposal for settlement have to specifically quantify the amount of attorney’s fees if the proposal wants to factor the other party’s attorney’s fees into the equation? According the recent opinion in Safepoint Insurance Co. v. Williams, 46 Fla. L. Weekly D2406b (Fla. 3d DCA 2021), the answer is No. The proposal can leave it up to the court (per a fee hearing) where the fees plus the judgment amount get factored in to determine whether that amount meets the proposal for settlement threshold for entitlement to attorney’s fees. In Safepoint Insurance Co., the defendant served a proposal for settlement...

06 September

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Calculating the Judgment Obtained in Determining Proposals for Settlement

Posted by David Adelstein

in Trial Perspectives

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...

28 February

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Proposals for Settlements and Attaching Releases

Posted by David Adelstein

in Trial Perspectives

I have discussed proposals for settlement (also known as offers of judgment) in a number of prior articles. A proposal for settlement is a procedural vehicle used to facilitate a settlement and create a basis to recover attorney’s fees from the date of the proposal on forward if the proposal for settlement is not accepted and the net judgment comes within a certain amount. Serving a proposal for settlement, and the strategic timing if one is served, should be discussed with your counsel. It should also be discussed with counsel the pros and cons of rejecting a proposal for settlement...

25 December

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Proposals for Settlement and Dismissals WITHOUT PREJUDICE

Posted by David Adelstein

in Trial Perspectives

I have talked about proposals for settlement in a number of prior postings. (See here, here, and here for a few of these postings.). Proposals for settlement are a vehicle to create an argument for attorney’s fees under Florida Rule of Civil Procedure 1.442 and Florida Statute s. 768.79. A party receiving a proposal for settlement has 30 days to accept the proposal. If they do not, it triggers an argument to recover attorney’s fees from the date of the proposal for settlement on forward based on the amount of the recovered judgment. However, Florida cases have held that even if...

17 November

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How to Factor a Postoffer Settlement into a Proposal for Settlement Analysis

Posted by David Adelstein

in Trial Perspectives

A plaintiff may serve a proposal for settlement (a/k/a offer of judgment) to create a mechanism to recover attorney's fees as the prevailing party. When it comes to proposals for settlement served by the plaintiff on the defendant, Florida Statute s. 768.79 provides: (b) If a plaintiff serves an offer which is not accepted by the defendant, and if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney's fees, calculated in accordance with the guidelines promulgated by the Supreme Court, incurred...

01 June

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Two Proposal for Settlement Considerations

Posted by David Adelstein

in Trial Perspectives

A proposal for settlement is a vehicle used to create an argument for the recovery of attorney’s fees from the date the proposal is served on forward if the opposing party does not accept the proposal within 30 days. In certain circumstances, such as when there is there is no basis to recover attorney’s fees, it can be a useful vehicle to create an argument to recover attorney's fees. There are also strategic reasons to serve a proposal for settlement at a certain point in time in the litigation. There are definitely strategic issues that must be considered when serving...

17 February

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Considerations when Multiple Proposals for Settlement are Served on Separate Defendants

Posted by David Adelstein

in Trial Perspectives

I have previously discussed proposals for settlement / offers of judgment (“proposals for settlement”). A proposal for settlement is a statutory vehicle pursuant to both Florida Statute s. 768.79 and Florida Rule of Civil Procedure 1.442 to create an argument to recover attorney’s fees based on the judgment amount. (See this article for more on proposals for settlement). For a plaintiff (party seeking affirmative relief), the plaintiff must obtain a judgment 25% greater than the proposal for settlement amount. When there are multiple defendants, the plaintiff needs to serve a proposal for settlement on each defendant. In Cassedy, Jr. v. Wood,44 Fla.L.Weekly...