FLORIDA LAW WEEKLY

VOLUME 43, NUMBER 16

CASES FROM THE WEEK OF APRIL 20, 2018

ERROR TO AWARD ATTORNEY’S FEES PURSUANT TO A PROPOSAL FOR SETTLEMENT THAT WAS IN REALITY A JOINT PROPOSAL AND FAILED TO APPORTION LIABILITY.

Peltz v. Trust Hospitality International, LLC, 43 Fla. L. Weekly D778 (Fla. 3rd DCA April 11, 2018):

An attorney sued two of his clients for unpaid legal fees. The attorney/plaintiff had asserted that the defendants in this case had assumed control over the day-to-day operations of another client, that the other client directly and unjustly benefitted from the attorney’s legal work, and therefore, the defendants sued were responsible for fees incurred by the non-party defendant.

The defendants served the attorney with a single, joint proposal for settlement, which offered to pay him $10,001 in full settlement of all claims. The proposal did not apportion between the clients the amount of the proposal attributable to each offeror. The plaintiff rejected them. When the attorney lost the case, the defendants sought their fees.

The defendants believed they did not have to apportion the settlement offer based on the exception set forth in rule 1.442(c)(4), which obviates the requirement to apportion joint offers when one party’s responsibility for another is solely “derivative” by operation of law. The court rejected that argument in this case, because the plaintiff had never alleged that the liability was exclusively derivative in nature. Instead, there were direct claims against all of the defendants.

The court also rejected the argument that because the damages the attorney sought against the defendants were not entirely distinct from the damages he sought to recover from the various parties, then any liability was derivative thereby implicating the exception to the rule. The court reminded us that the focus of the exception is not on whether a party is liable for the full amount of damages, but rather, whether the claims against the party are “direct claims” or solely claims of vicarious or other forms of indirect liability.

Because plaintiff had only direct claims against the defendants, the proposal was invalid because it failed to apportion the joint offer.

ABUSE OF DISCRETION TO DISMISS A COMPLAINT AS A SANCTION WITHOUT FIRST CONSIDERING KOZEL FACTORS.

Wilkerson v. MV Transportation, Inc., 43 Fla. L. Weekly D779 (Fla. 5th DCA April 13, 2018):

Before a trial court may use dismissal as an appropriate sanction in situations where an attorney and not the client is responsible for the error, there are six factors as set forth in Kozel which the trial court must consider: (1) whether the attorney’s disobedience was willful, deliberate or contumacious rather than an act of neglect or inexperience; (2) whether the attorney had been previously sanctioned; (3) whether the client was personally involved in the act of disobedience; (4) whether the delay prejudiced the opposing party through undue expense, loss of evidence or some other fashion; (5) whether the attorney offered reasonable justification for non-compliance; and (6) whether the delay created significant problems of judicial administration.

Because the trial court had not considered these factors, the court remanded for consideration of them in deciding whether the complaint should be dismissed as a sanction.

COURT REVERSED TRIAL JUDGE’S DECISION TO GRANT A NEW TRIAL ON THE BASIS OF UNOBJECTED-TO ARGUMENT WHERE THE ARGUMENT DID NOT RISE TO THE LEVEL OF FUNDAMENTAL ERROR.

Walt Disney Parks v. Grimes, 43 Fla. L. Weekly D781 (Fla. 5th DCA April 13, 2018):

While the case does not state in the opinion what the arguments made were in the case, it does remind us that a complaining party must establish that the argument being challenged is not only improper, but also harmful and incurable, and so damaging to the fairness of the trial that the public’s interest in our system of justice requires a new one.

However, in the event that the party does not make the showing on the first three prongs, it is not necessary to make a showing on the fourth prong either.