Third District Court of Appeal
State of Florida
Opinion filed January 18, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1826
Lower Tribunal No. 11-5755
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Virginia Hadad Gonzalez,
Appellant,
vs.
Millin A. Nobregas,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Mark
Blumstein, Judge.
J. Muir & Associates, P.A., and Jane W. Muir, for appellant.
Wasson & Associates, Chartered, and Annabel C. Majewski;
Nobregas-Sancio, P.A., and Millin A. Nobregas, for appellee.
Before EMAS, MILLER and BOKOR, JJ.
BOKOR, J.
Virginia Hadad Gonzalez, the defendant below, appeals from the trial
court’s denial of fees and costs after a jury found in her favor. In pertinent
part, Gonzalez claims fees as the prevailing party in an action under the
Florida Deceptive and Unfair Trade Practices Act (FDUTPA), section
501.204, et. seq., Florida Statutes, as well as under a proposal for settlement
pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil
Procedure 1.442. Additionally, Gonzalez seeks costs based on section
57.041, Florida Statutes. As explained below, we affirm the trial court’s
denial of fees and costs based on the FDUTPA claim and the proposal for
settlement but reverse as to the mandatory imposition of costs pursuant to
section 57.041.
First, we examine the trial court’s denial of fees and costs under
FDUTPA.1 The relevant statute vests the trial court with discretion to award
fees and costs under FDUTPA. See Coral Gables Imports, Inc. v. Suarez,
306 So. 3d 348, 349 n.3 (Fla. 3d DCA 2020) (“recognizing the discretionary
nature of the relevant statutory provision [under FDUTPA]”); see also §
501.2105(1), Fla. Stat. (“[T]he prevailing party . . . may receive his or her
reasonable attorney’s fees and costs . . . .”) (emphasis added); Id. (3) (“[t]he
1
We review the trial court’s ruling on the issue of entitlement under an abuse
of discretion standard. Forte v. All Cnty. Towing, Inc.,
336 So. 3d 316, 319
(Fla. 4th DCA 2022).
2
trial judge may award the prevailing party” reasonable fees and costs)
(emphasis added). A non-exhaustive list of factors that a trial court may
consider in determining fee entitlement under FDUTPA include: (1) the
scope and history of litigation; (2) the ability to pay fees; (3) whether an award
of fees would deter future conduct; (4) the merits of the respective positions
of the parties; (5) whether the claim was frivolous, unreasonable, or
groundless; (6) whether claims or defenses were raised to frustrate or stall;
and (7) whether the claim was brought to resolve a significant issue under
FDUTPA. Humane Soc’y of Broward Cnty., Inc. v. Fla. Humane Soc’y,
951
So. 2d 966, 971–72 (Fla. 4th DCA 2007); see also Forte, 336 So. 3d at 321
(listing Humane Society factors after determining that it remains good law).
Here, the record reflects that the trial court granted partial summary
judgment as to liability in favor of the plaintiff on the FDUTPA claim, but the
jury awarded no damages. Based on the record before us, the discretionary
nature of prevailing party fees under FDUTPA, and the analytical framework
described above, we find no abuse of discretion in the trial court’s denial of
fees and costs to Gonzalez on the FDUTPA claim. See Forte, 336 So. 3d at
319 (“An award of attorney's fees will be upheld on appeal so long as it is
supported by competent, substantial evidence.”).
3
Next, we turn to the denial of fees and costs under the proposals for
settlement presented to the trial court. 2 Section 768.79 entitles a defendant
to reasonable attorney’s fees and costs where the defendant serves an offer
of judgment, not accepted by the plaintiff within 30 days, and “(1) the
judgment is one of no liability; (2) the judgment obtained by the plaintiff is at
least twenty-five percent less than the defendant's offer; or (3) the cause of
action was dismissed with prejudice.” Smith v. Loews Miami Beach Hotel
Operating Co.,
35 So. 3d 101, 102 (Fla. 3d DCA 2010). Nobregas didn’t
accept the offers within 30 days and Gonzalez received a judgment of no
liability. The issue of the proposals’ validity, therefore, turns on whether they
comply with the legal requirements of the statute, which delineate that an
offer must:
(a) Be in writing and state that it is being made pursuant to this
section.
(b) Name the party making it and the party to whom it is being
made.
(c) State with particularity the amount offered to settle a claim for
punitive damages, if any.
(d) State its total amount.
The offer shall be construed as including all damages which may
be awarded in a final judgment.
2
We review de novo entitlement to costs and fees under the offer of
judgment statute. See, e.g., Magdalena v. Toyota Motor Corp.,
253 So. 3d
24, 25 (Fla. 3d DCA 2017) (“As the issue before this Court involves the
interpretation of a statute, which is a pure question of law, the standard of
review is de novo.”).
4
§ 768.79(2), Fla. Stat. Florida Rule of Civil Procedure 1.442 also imposes
some additional requirements for implementing the statute. “An offer of
settlement must comply with both rule 1.442 and section 768.79.” Campbell
v. Goldman,
959 So. 2d 223, 224 (Fla. 2007) (quotation omitted) (noting also
that the 1996 amendment to rule 1.442 was intended to “require greater
detail in settlement proposals”). Based on an examination of the statutory
factors, the trial court correctly found the proffered proposals legally
insufficient. 3
The proposals considered by the trial court contain multiple deviations
from the strict requirements of the statute and rule. See Brower-Egar v.
Noon,
994 So. 2d 1239, 1241 (Fla. 4th DCA 2008) (“Our supreme court has
rejected any deviation from the strict requirements of the statute and rule.”).
Most notably, the proposals require the plaintiff to execute a release but fail
3
The record contains three proposals for settlement with the latter two
purporting to supersede the ones before. Gonzalez sought fees and costs
in the trial court, and argues for such entitlement here, only under the first
two proposals for settlement. This is likely because the third proposal for
settlement, presented after the amendment of the complaint to add punitive
damages, runs afoul of section 768.79(2)(c), Florida Statutes and Florida
Rule of Civil Procedure 1.442(c)(2)(E), which both require a proposal for
settlement to “state with particularity the amount proposed to settle a claim
for punitive damages, if any.” We take no position on whether the first two
proposals for settlement were extinguished by the submission of subsequent
proposals for settlement, because the first two proposals for settlement are
legally flawed for the reasons described.
5
to attach or describe the release with sufficient detail. See State Farm Mut.
Auto. Ins. Co. v. Nichols,
932 So. 2d 1067, 1078 (Fla. 2006) (“[W]e agree
with those courts that have treated releases as conditions or nonmonetary
terms that must be described with particularity.”); see also Papouras v.
BellSouth Telecomms., Inc.,
940 So. 2d 479, 480–81 (Fla. 4th DCA 2006)
(“In this case, the proposal simply provided for the plaintiff to execute a full
release without further detail. A copy of the release was not attached, and
no summary of the terms was included in the proposal. BellSouth argues,
and we agree, that this proposed release lacked sufficient detail to eliminate
any reasonable ambiguity about its scope.”). Additionally, the proposals
contain, at a minimum, ambiguity as to the issue of punitive damages.4
4
As explained in footnote 3, the failure to address punitive damages with
particularly renders the third proposal fatally flawed. But the failure to
address punitive damages constitutes a fatal flaw with the first two proposals
as well. Prior to service of the first proposal, Gonzalez sought to add a claim
for punitive damages (which addition was ultimately permitted by the trial
court prior to the third proposal). Even though Gonzalez was on notice of
such attempt to add punitive damages, the first two proposals state that “[n]o
punitive damages are claimed in this case.” This may be correct in the sense
that the complaint hadn’t yet been amended to add the punitive damages
claim, but the plaintiff was seeking them (arguably, “claiming” them as the
word is generally understood). At a minimum, the failure to address punitive
damages that Gonzalez sought to add that had not, at that time, been ruled
upon, likely renders the proposals ambiguous. See Mix v. Adventist Health
System/Sunbelt, Inc.,
67 So. 3d 289, 292 (Fla. 5th DCA 2011) (“A proposal
does not satisfy the ‘particularity’ requirement if an ambiguity within the
proposal could reasonably affect the offeree's decision.”). This also amplifies
the ambiguity and lack of specificity of the release language.
6
Finally, the releases require payment from the date of “settlement” without
defining such date. See Hibbard ex rel. Carr v. McGraw,
918 So. 2d 967,
971 (Fla. 5th DCA 2005) (“Because the offer of judgment statute and related
rule must be strictly construed, virtually any proposal that is ambiguous is
not enforceable.”). Accordingly, none of proposals proffered under the offer
of judgment statute satisfy the strict requirements of the relevant statute and
rule, and the trial court correctly declined to enforce them.
Finally, we address Gonzalez’s entitlement to costs under section
57.041, Florida Statutes. The statute uses mandatory language. “The party
recovering judgment shall recover all his or her legal costs and charges
which shall be included in the judgment.” § 57.041(1), Fla. Stat. (emphasis
added). A zero judgment, a defense verdict by which the plaintiff takes
nothing, constitutes a judgment in favor of the defendant for purposes of
recovery of costs. See Tacher v. Mathews,
845 So. 2d 332, 334–35 (Fla. 3d
DCA 2003). Accordingly, we vacate the portion of the final judgment denying
costs. Section 57.041 requires an award of costs in favor of Gonzalez.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion.
7
