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Ryan v. Gonzalez2/26/2003
n the claim.
2. The number and nature of offers made by the parties.
3. The closeness of questions of fact and law at issue.
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.
5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting nonparties. . . . (Emphasis added).
"Under section 768.79, a party has the right to attorney's fees when the following prerequisites have been fulfilled: (1) a party has served a demand or offer for judgment and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer." Levine v. Harris, 791 So. 2d 1175, 1177 (Fla. 4th DCA 2001) (citing Schmidt v. Fortner, 629 So. 2d 1036, 1040 (Fla. 4th DCA 1993), approved by, TGI Friday's, Inc. v. Dvorak, 663 So. 2d 606, 613 (Fla. 1995)). "Whether the offeree unreasonably rejected the offer of judgment has no bearing on whether a party is entitled to attorneys' fees under the statute." Id. "The sole basis on which a court can disallow an entitlement to an award of fees is if it determines that a qualifying offer was not made in good faith." Id.
The issue is whether the trial court abused its discretion when it found that the $100 offers were not made in good faith. See Alexandre v. Meyer, 732 So. 2d 44, 45 (Fla. 4th DCA 1999) (the standard of review on a finding that an offer is not made in good faith is whether the trial court abused its discretion). Defendants argue that the trial court abused its discretion when it refused to consider the limitations defense as a basis for the proposal. Defendants further argue that the trial court misapplied the law when it: analyzed the reasonableness of the offers from the standpoint of the Plaintiffs rather than Defendants, weighed the factors related to the amount of fees and denied sanctions on the grounds that the offer was "nominal." Plaintiffs argue that the trial court correctly applied the law when it determined that the offers were not made in good faith.
"The burden is upon the offeree to prove that the offeror acted without good faith." Levine, 791 So. 2d at 1178 (citing Schmidt, 629 So. 2d at 1041 n.6). The children rely on this court's decision in Eagleman v. Eagleman, 673 So. 2d 946 (Fla. 4th DCA 1996), when arguing that the $100 offers were not made in good faith, because they were not reasonably related to the amount of damages or potential liability.
In Fox v. McCaw Cellular Communications of Florida, Inc., 745 So. 2d 330 (Fla. 4th DCA 1998), this court explained:
Eagleman merely holds that nominal offers are suspect where they are not based on any assessment of liability and damages. When a nominal offer is not based on an evaluation of potential liability and damages, the offer raises a question as to the intentions of the offeror. In that circumstance, Eagleman holds that an issue of good faith arises for resolution by the trial court. Id. at 323-33.
This court emphasized that "nominal offers of judgment are not alone determinative of bad faith." Id. at 333. This court went on to stress:
he question of good faith in making an offer under section 768.79 involves an inquiry into the circumstances shown by the entire record of the case. Each case requires its own analysis, and must be considered on its own facts. Whether an offer was made in bad faith involves a matter of discretion reposed in the trial judge to be determined from the facts and circumstances surrounding the offer. That determination is not controlled by a legal imperative requiring a find
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