• Proposals for Settlement: Minding Your P's & Q's Under Rule 1.442
  • July 26, 2011 | Author: Julie H. Littky-Rubin
  • Law Firm: Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin - West Palm Beach Office
  • It’s over. After four years of hard-fought litigation and two weeks of trial, you successfully convinced a group of six people to find in favor of your client. Your client is elated. Not only has she won, but she rejoices in the knowledge that she will recover her attorneys’ fees, thanks to your foresight in filing an offer of judgment three years ago. As you happily lose yourself in the memory of one of your more crafty cross examinations, your euphoria turns to panic. Your heart races as you quickly procure the file and begin tearing through the pleadings to review the offer you filed. Your mind is filled with vague recollections about rule changes in 1997 and innumerable cases you have recently read where some poor attorney’s offer was declared invalid for failing to comply with Rule 1.442. As you review the offer you filed, you realize its shortcomings. Will it be enforced? Will you have to alert your carrier? How can you avoid having to live this nightmare again?

    The offer of judgment statute, F.S. §768.79 (1999), creates a substantive right to collect reasonable attorneys’ fees and costs as “penalties” for a declining party’s failure to accept an offer and terminate the litigation.1 Florida Rule of Civil Procedure 1.442, “Proposals for Settlement,” provides the mechanism to assert those rights and delineates the proper procedure necessary for implementing the substantive statute. The rule applies to all proposals for settlement, regardless of the terms used to refer to such offers. Apropos of the plain language of Rule 1.442, offers or demands for judgment are now uniformly termed “proposals for settlement.”

    In 1996, the Florida Supreme Court overhauled Rule 1.442. Those amendments, effective January 1, 1997, were designed to create a coherent framework for reconciling Florida’s offer of judgment law, and to end the proliferation of litigation sabotaging the statute’s goal of ending claims and disputes.2 One court articulated hope that the amendments to Rule 1.442 would provide an easy guide for attorneys and litigants to follow in filing proposals for settlement, stating: “Perhaps the amendments to Florida Rule of Civil Procedure 1.442, effective January 1, 1997, which require far more detail than a settlement proposal, will help ensure that there are no misunderstandings between an offeror and an offeree about the terms of the settlement proposal.”

    Unfortunately, the court may have been prematurely sanguine. As evidenced by the swelling body of recent case law, the changes in the rule seem to have resulted in even more litigation by creating confusion in the transition between the old law and the new. Each provision of the rule is outlined below with a discussion of the recent cases interpreting it. The only way parties can ensure sustainable offers and avoid becoming the next “So. 2d cite” is to follow carefully the specific prescriptions of Rule 1.442.

    Anatomy of the Rule
    Time Requirements: 1.442(b)3

    Rule 1.442(b) requires that a proposal to a defendant be served no earlier than 90 days after service of process, and a proposal to a plaintiff no earlier than 90 days after the action has been commenced.4 These time limits are rigid. Serving an offer on the 87th day, for example, simply does not comply with the rule.5

    No proposal shall be served later than 45 days before the date set for trial, or the first day of the docket on which the case will be tried, whichever is earlier.6 One court rejected the defendant’s offer of judgment as untimely and unenforceable because the defendant made the offer less than 45 days before the first day of the docket on which the case would be tried, even though the case actually went to trial almost six months after first being set.7 Notwithstanding the grant of a continuance to the defendant, the court refused to hold that the continuance operated to “breathe” life back into an otherwise untimely offer.8

    If an offeror makes an offer at a point when it appears that the offeror has intended to direct the offer to a subsequent, unscheduled trial period, then the offer may be valid.9 In one instance, a case was scheduled to go to trial during the docket period beginning October 27, 1997, and concluding on October 31, 1997.10 As of October 30, 1997, the case had not been reached. When it became apparent that the case would not go to trial within that trial period, the defendant filed an offer of judgment. The case was reset and ultimately tried in September 1998. While the court acknowledged that Rule 1.442 mandated that no proposal for settlement shall be served less than 45 days before the trial date or first day of the docket, it held that a single exception existed if the offer was made at a point in time when it appeared from the facts of the individual case that the offeror intended to direct the offer not to the current trial period, but rather to the next unscheduled time period.11 The court found that only in that situation will the offer be considered timely.12 The Fourth District took that exception one step further when it declared an offer of judgment valid even though it was made during the last week of a docket, because the parties had previously been excused from trial for that week.13

    Form and Content of the Proposal—1.442(c)

    Rule 1.442(c)(1) requires that a proposal be in writing and that it identify the applicable Florida law under which the offer has been made. At one time, the Florida statutes had numerous provisions governing offers to settle pending litigation. Now that only one statute governs such offers, as implemented by Rule of Civil Procedure 1.442, an offer will comply when either the rule or the statute is cited.14 It is always safest, however, to reference both Rule 1.442 and §768.79 to avoid any confusion or problems.

    Rule 1.442(c)(2) provides a checklist of the seven elements necessary for a valid proposal for settlement. Rule 1.442(c)(2)(A) requires that the offeror “name the party or parties making the proposal and the party or parties to whom the proposal is being made.” Rule 1.442(c)(3) further explains that a proposal may be made to any party or parties and that a joint proposal shall state the amount and terms attributable to each party. This provision was enacted to conform with the law set forth in Fabre v. Marin, 623 So. 2d 1182 (Fla. 1993).15

    When a single plaintiff files a proposal for settlement to multiple defendants in a case involving separate issues of liability, the proposal must set forth the specific amount directed to each defendant to settle the case. Otherwise, the proposal will lack the particularity needed to comply with the rule.16 The offer must be specific enough to enable separate tortfeasors to evaluate the proposal independently.17 However, when only one act of negligence is involved, and the named defendants are all either actively or vicariously liable for that one act of negligence, an offer need not list specific amounts attributable to each defendant because each defendant will be liable for the entire amount as a matter of law.18

    The failure of parties who share the same liability to apportion their proposal among themselves does not impair their ability to collect attorneys’ fees on an unaccepted offer, because the amount which each of the several offerors contributes to the proposed settlement makes no practical difference to the offeree.19 That concept is especially true if the theory upon which the defendants’ joint liability is based does not allow for apportionment under F.S. §768.81 (1997), a circumstance which typically exists in cases when one defendant is vicariously liable for the negligence of another.20

    While it may appear that multiple defendants may file a proposal for settlement containing one total amount in order to comply with the rule, notable exceptions exist. For instance, in cases in which an injured plaintiff has a spouse with a consortium claim, the defendant must make a specific offer to both parties, or risk violating the rule’s specificity requirement.21 Similarly, when married plaintiffs have several claims, the offer must specify the amount and terms attributable to each party.22 However, when those same plaintiffs file a proposal to settle with the defendant, the apportionment is irrelevant because apportionment between plaintiffs is of little consequence to the defendant.23 According to one court, offers of judgment made before the rule changed in January 1997 did not require the offeror to attribute separate amounts to each party.24 However, another court held differently, noting the direct conflict.25

    Rule 1.442(c)(2)(B) requires the offeror to identify the claim or claims the offeror is proposing to resolve. When an offer is unqualified and does not specifically delineate other pending claims or counterclaims, it is assumed that the offer is intended to dispose of all pending claims and complies with the rule.26

    Prior to 1997, Rule 1.442 did not allow for the inclusion of any conditions.27 Following January 1, 1997, however, an offer may now include certain conditions. For example, an offer may require the offeree to satisfy certain liens.28 Even the entry of a final judgment is considered a “condition” under this rule.29 One court found that the language in §768.79(2), providing that the offer shall be construed as including all damages which may be awarded in a final judgment, did not establish a substantive right to a final judgment.30 It merely declared the possibility for entitlement to attorneys’ fees.31 That court concluded that without specific language offering to have a judgment entered, there will be no such entry.32 Rule 1.442(c)(2)(d) actually requires the proposal to state with particularity all nonmonetary terms of the proposal along with the total amount.

    If punitive damages are involved, Rule 1.442(c)(2)(E) requires the offer to state with particularity the amount proposed to settle any claim for punitive damages. Rule 1.442(c)(2)(F) mandates that the proposal state whether it includes attorneys’ fees and whether attorneys’ fees are part of the legal claim at issue. Rule 1.442(c)(2)(G) then requires that a certificate of service in the form required by Rule 1.080(f) be attached to the offer.

    • Service, Filing and Withdrawal—1.442(d) and (e)

    A proposal shall be served on the party or parties to whom it is made but shall not be filed unless necessary to enforce the provisions of this rule.33 A proposal may be withdrawn in writing, provided the written withdrawal is delivered before a written acceptance is delivered.34 Once withdrawn, a proposal is void.35

    A proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal.36 If an offer of judgment is sent by mail, it is subject to the five-day mailing rule, adding five days to the 30-day prescribed period in which the offeree may respond.37 No oral communications constitute an acceptance, rejection, or counteroffer under the provisions of the rule.38

    Moving for Sanctions Pursuant to the Rule—1.442(g)

    Despite having filed a “letter perfect” proposal for settlement, the failure to move timely for the sanctions allowed under the rule (i.e., attorneys’ fees and costs) could render fine draftsmanship a nullity. Before the recent rule change explained below, any party seeking sanctions, based upon the failure of the proposal’s recipient to accept the proposal, had to do so by service of an appropriate motion within 30 days after the entry of judgment in a nonjury action, the return of the verdict in a jury action, or the entry of a voluntary or involuntary dismissal.39

    This counterintuitive provision to Rule 1.442 used to require a successful offeror to file the appropriate motion “within 30 days after . . . the return of the verdict in a jury action . . . .” However, §768.79(6)(a) requires the motion for attorneys’ fees be filed within 30 days after the entry of judgment. This trap for the unwary recently deprived plaintiffs and their attorneys of $144,000 of well deserved attorneys’ fees.40 There, the court held that because the time periods prescribed in statutes are procedural, they are governed by the Florida Rules of Civil Procedure when the two conflict.41

    The Second District reconciled this seemingly draconian decision with the Supreme Court’s opinion in Gulliver Academy, Inc. v. Bodek, 694 So. 2d 675 (Fla. 1997). That case acknowledged that a timely reservation of jurisdiction in a final judgment was procedurally an enlargement of time under Rule 1.090(b), thereby allowing a party to file a late motion for attorneys’ fees.42 Bodek noted that under Rule 1.442(g), amended in 1997, a reservation of jurisdiction in a final judgment entered on a jury verdict would not be timely if the final judgment was not entered within 30 days of the jury’s verdict.43 Only under those circumstances could a party show excusable neglect under Rule 1.090(b)(2) in order to enlarge the time.44

    Fortunately, the Supreme Court very recently adopted changes to Rule 1.442(b) and Rule 1.442(g) to streamline this timing quagmire. As of January 1, 2001, Rule 1.442(g) will reference a new rule of civil procedure, Rule 1.525. Pursuant to Rule 1.525, any motion for attorneys’ fees or costs shall be served within 30 days after filing of the judgment, including a judgment of dismissal or the notice of a voluntary dismissal.45 Presumably, this change will eliminate many of the timing pitfalls previously noted in the case law.

    In one case, after a personal injury plaintiff served an offer of judgment for $10,000 for the limits of the defendant’s insurance policy, the jury awarded the plaintiff a verdict in excess of $100,000.46 While the insurance company had hired the defendant’s attorney and had made all of the major decisions in the litigation, it was not actually a party to the litigation. Notwithstanding the insurer’s intimate involvement in the case, the court rejected plaintiff’s right to collect attorneys’ fees from the insurer pursuant to her offer of judgment, finding that the insurance company could not be responsible for the excess fees because it was not a party to the suit.47

    Lamenting the fact that there was no statutory basis to allow the plaintiff to recover her attorneys’ fees against the insurance carrier, Judge Whatley reluctantly concurred in the decision.48 As he aptly noted, the insurance carrier is the real party in interest because it controls the litigation strategy and holds the purse strings, and the statute is grossly inequitable because it allows the insurance carrier to suffer no risk of an award of attorneys’ fees.49 Under the doctrine of mutuality of obligation, Judge Whatley urged the legislature to review the statute with a view toward leveling the playing field.50

    In another case, the court insisted that the entry of judgment conform to the insurance policy limits, notwithstanding a verdict in excess of the policy.51 There, the court allowed the trial court to make the determination of the amount of attorneys’ fees and costs, but rejected the trial court’s decision to require an immediate payment because the judgment was essentially “contingent” on a finding of bad faith.52 The court remanded the case to the trial court to provide for execution once judicially determined that the insurance company had acted in bad faith in refusing to settle the matter promptly.53

    Even if a party is entitled to costs and fees pursuant to applicable Florida law, the court may, in its discretion, determine that a proposal lacked good faith.54 In such cases, the court may disallow an award of costs and attorneys’ fees.55

    The question of good faith turns entirely on whether the offeror had a reasonable foundation upon which to make the offer and made the offer with the intent to settle the claim against the offeree, should the offeree accept.56 Whether a proposal for settlement is made in good faith is by its very nature determined by the subjective motivations and beliefs of the pertinent actor.57

    To ascertain whether an offeror who has extended a minimal offer of judgment acted in good faith, the trial court must look at whether the offer bears a reasonable relationship to the amount of damages suffered and a realistic assessment of liability.58 Nominal offers of judgment are suspect when they are not based on any assessment of liability and damages.59 One court stressed that the question of good faith in making an offer of judgment under §768.79 involves an inquiry into the circumstances shown by the entire record of case.60 Each case requires its own analysis and must be considered on its own facts.61 While some nominal offers are made in good faith, some are not, and the trial judge must consider all the surrounding circumstances at the time the offer was made.62

    In a special concurrence, Judge Farmer noted that when an offer is shown not to rest on any reasonable assessment of liability and damages, and the offer has no reasonable relationship to damages, the court should begin its assessment of the claim of bad faith by viewing the offer with some skepticism.63 Still, highlighting the idea that nominal offers are often made after a proper assessment of the circumstances of the case, Judge Farmer wrote, “[I]t would seem to me a rare case that a party sued for money damages will not have made any assessment of liability and damages after receiving suit papers and before making an offer to settle the case.”64 In any event, it seems that the offeree has the burden to prove the absence of good faith.65

    A test of whether the offer was made in good faith arises when plaintiffs make demands for judgment in an amount in excess of the available insurance policy limits. However, one court held that §768.79 does not require the ability to pay or actual payment in order to accept a demand for judgment.66 There, the defendant rejected plaintiff’s offer to settle the case for the $10,000 in insurance policy limits.67 When the insurer rejected the offer, plaintiff filed suit and later served a demand for judgment for $76,000.68 The demand was not accepted and the jury returned a verdict far in excess of that amount.69 Defendant then successfully argued to the trial court that the plaintiff did not make the demand in good faith because she knew the policy limits were only $10,000.70 The Fourth District disagreed and awarded attorneys’ fees pursuant to the offer of judgment statute.71

    Similarly, a trial court improperly denied attorneys’ fees pursuant to an offer of judgment because the court found that plaintiff did not intend to terminate the litigation with a $250,000 offer on a wrongful death case involving only $10,000 in insurance coverage.72 The trial court struck the offer finding that it was served solely to create a right to attorneys’ fees.73 In reversing the trial court, the Third District wrote that the right to attorneys’ fees is the very purpose for making an offer under §768.79 in the first place and is the “carrot held out by the statute to encourage early settlements.”74

    “Did We Beat the Offer?” Determining Entitlement, Fees, and Costs
    Pursuant to §768.79, entitlement to attorneys’ fees and costs under the statute is calculated based upon the final judgment. Thus, while the jury’s verdict on its face may exceed the proposal for settlement by 25 percent, the setoffs for comparative negligence and collateral sources may diminish the final judgment, thereby affecting entitlement to fees.

    To determine the amount of a final judgment, one court decided to set off plaintiff’s comparative negligence first.75 Section 768.79(6)(a), however, also requires the court to add collateral source payments made “post-offer” but before judgment, to the net judgment, to reach the “judgment obtained” for the purpose of considering costs and fees under the statute.76 A PIP deductible will be set off from the verdict, as will the amount of PIP benefits actually paid.77 However, the plaintiff is also entitled to a reduction from the setoffs for the cost of obtaining PIP coverage in determining the amount of the “judgment obtained.”78 Additionally, the prevailing plaintiff’s pre-demand costs should be included in determining whether the “judgment obtained” was 25 percent more than the demand for judgment.79 Finally, be mindful that because economic damages are assessed jointly and severally (at least until the 1999 statutory changes), a defendant may be responsible for 100 percent of the economic damages in computing the judgment irrespective of the jury’s finding that he or she was only partially responsible.80

    Once the time for acceptance of an offer of judgment expires, the right to attorneys’ fees and costs is triggered under the statute.81 Offers of judgment do not supercede each other, nor do subsequent offers revoke preceding offers.82 Thus, when several offers are served and not accepted, and the case is tried, appealed, and retried for example, the first valid offer still provides the basis for attorneys’ fees notwithstanding any subsequent offers which may have been made (unless there is entitlement under one of the subsequent offers only).83 Additionally, a party is entitled to interest on the attorneys’ fees based on an offer of judgment once the trial court enters judgment determining entitlement to such fees.84

    Although it seems logical that sanctions under the offer of judgment rule should entitle a prevailing party to costs outside the uniform guidelines for taxable costs, one court recently quashed that notion.85 According to that court, even under §768.79 a successful litigant may only collect “taxable” costs.86 However, trial courts may consider and apply contingency risk multipliers when awarding attorneys’ fees pursuant to the offer of judgment statute.87

    Filing a valid proposal for settlement is a far more simple proposition than the abundant case law may suggest. There is only one governing statute, and the rule can be synthesized into a step-by-step checklist as set forth below. By carefully following the rule before filing each proposal, one can savor your stunning victory in court without the unnecessary post-trial anxiety that accompanies a noncompliant proposal.

    1 Abbott & Purdy Group, Inc. v. Bell, 738 So. 2d 1024, 1026 (Fla. 4th D.C.A. 1999).

    2 See Security Professionals, Inc. v Segall, 685 So. 2d 1381, 1284 (Fla. 4th D.C.A. 1997), rev. denied, 700 So. 2d 687 (Fla. 1997).

    3 As of January 1, 2001, this section will be renamed “Service of Proposal,” pursuant to the recent amendments made to the Rules of Civil Procedure, 25 Fla. L. Weekly S763 (Fla. October 5, 2000).

    4 Fla. R. Civ. P. 1.442.

    5 Grip Development, Inc. v. Coldwell Banker Residential Real Estate, 25 Fla. L. Weekly D1259 (Fla. 4th D.C.A. May 24, 2000).

    6 Fla. R. Civ. P. 1.442(b).

    7 Schussel v. Ladd Hairdressers, Inc., 736 So. 2d 776 (Fla. 4th D.C.A. 1999).

    8 Id.

    9 Progressive Cas. Insurance Co. v. Radiology & Imaging Center of South Florida, Inc., 761 So. 2d 399 (Fla. 3d D.C.A. 2000).

    10 Id.

    11 Id.

    12 Id.

    13 Liguori v. Daly, 756 So. 2d 268 (Fla. 4th D.C.A. 2000).

    14 Spruce Creek Devel. Co. of Ocala, Inc. v. Drew, 746 So. 2d 1109, 1116 (Fla. 5th D.C.A. 1999).

    15 Committee Notes to Rule 1.442 (1996 Amendment).

    16 McFarland & Son v. Basel, 727 So. 2d 266 (Fla. 5th D.C.A. 1999), rev. denied, 743 So. 2d 508 (Fla. 1999).

    17 C&S Chemicals, Inc. v. McDougall, 754 So. 2d 795 (Fla. 2d D.C.A. 2000); Ford Motor Co. v. Meyers, 25 Fla. L. Weekly D2484 (Fla. 4th D.C.A. October 18, 2000).

    18 Strahan v. Gauldin, 756 So. 2d 158 (Fla. 5th D.C.A. 2000).

    19 Flight Express, Inc. v. Robinson, 736 So. 2d 796 (Fla. 3d D.C.A. 1999).

    20 Danner Const. Co., Inc. v. Reynolds Metals Co., 760 So. 2d 199, 102 (Fla. 2d D.C.A. 2000).

    21 United Services Auto. Ass’n. v. Behar, 752 So. 2d 663 (Fla. 2d D.C.A. 2000), rev. granted, (Table No. SC00 - 595) (Fla. July 25, 2000).

    22 Goldstein v. Harris, 25 Fla. L. Weekly D2066 (Fla. 4th D.C.A. August 30, 2000).

    23 Spruce Creek Devel. Co., 746 So. 2d at 1116.

    24 Herzog v. K-Mart Corp., 760 So. 2d 1006 (Fla. 4th D.C.A. 2000).

    25 Allstate Indem. Co. v. Hingson, 25 Fla. L. Weekly D2431 (Fla. 2d D.C.A. October 11, 2000).

    26 MGR Equipment Corp., Inc. v. Wilson Ice Enterprises, Inc., 731 So. 2d 1262, 1264 (Fla. 1999); Battaglia v. Schaked, 765 So. 2d 65 (Fla. 4th D.C.A., February 16, 2000).

    27 J.J.’s Mae, Inc. v. Milliken & Co., 763 So. 2d 1106 (Fla. 4th D.C.A. 1999).

    28 Id.

    29 See Abbott & Purdy Group, Inc., 738 So. 2d at 1027.

    30 Id. at 1026.

    31 Id.

    32 Id.

    33 Fla. R. Civ. P. 1.442(d).

    34 Fla. R. Civ. P. 1.442(e).

    35 Id.

    36 Fla. R. Civ. P. 1.442(f).

    37 Matheos v. Friar, 701 So. 2d 1248 (Fla. 5th D.C.A. 1997).

    38 Fla. R. Civ. P. 1.442(f).

    39 Fla. R. Civ. P. 1.442(g).

    40 Spencer v. Barrow, 752 So. 2d 135 (Fla. 2d D.C.A. 2000).

    41 Id. at 137.

    42 Id. at 677.

    43 Spencer v. Barrow, supra., at 137 (citing, Gulliver Academy, Inc. v. Bodek, 694 So. 2d at 677 (Fla. 1997).

    44 Id.

    45 Rules of Civil Procedure - Amendments, 25 Fla. L. Weekly S763 (Fla. October 5, 2000).

    46 Sparks v. Barnes, 755 So. 2d 718 (Fla. 2d D.C.A. 1999), rev. denied, (Table No. SC00 - 564, Fla. 2000)

    47 Id.

    48 Id. (Whatley, J., concurring).

    49 Id.

    50 Id.

    51 Allstate Insurance Co. v. Sutton, 707 So. 2d 760 (Fla. 2d D.C.A. 1998).

    52 Id.

    53 Id.

    54 Fla. R. Civ. P. 1.442(h)(1).

    55 Id.

    56 Wagner v. Brandeberry, 761 So. 2d 443 (Fla. 2d D.C.A. 2000); Department of Highway Safety & Motor Vehicles, Florida Highway Patrol v. Weinstein, 747 So. 2d 1019, 1020 (Fla. 3d D.C.A. 1999).

    57 Department of Highway Safety & Motor Vehicles, Florida Highway Patrol v. Weinstein, 747 So. 2d at 1020 (Fla. 3d D.C.A. 1999).
    58 Evans v. Piotraczk, 724 So. 2d 1210, 1211 (Fla. 5th D.C.A. 1998).

    59 Fox v. McCaw Cellular Communications of Florida, 745 So. 2d 330, 332 (Fla. 4th D.C.A. 1998); compare, Camejo v. Smith, 25 Fla. L. Weekly D2216 (Fla. 2d D.C.A. September 15, 2000).

    60 Fox v. McCaw Cellular Communications of Florida, 745 So. 2d at 333(Fla. 4th D.C.A. 1998).

    61 Id.

    62 Id.

    63 Id. (Farmer, J., concurring specially).

    64 Id. at 334 (Farmer, J., concurring specially).

    65 Donohoe v. Starmed Staffing, Inc., 743 So. 2d 623, 624 (Fla. 2d D.C.A. 1999).

    66 Alexandre v. Meyer, 732 So. 2d 44, 45 (Fla. 4th D.C.A. 1999).

    67 Id.

    68 Id.

    69 Id.

    70 Id.

    71 Id.

    72 Lieff v. Sandoval, 726 So. 2d 335 (Fla. 3d D.C.A. 1999), rev. denied, 740 So. 2d 528 (Fla. 1999).

    73 Id. at 336.

    74 Id.

    75 See Assi v. Florida Auto Auction of Orlando, Inc., 717 So. 2d 588 (Fla. 5th D.C.A. 1998).

    76 Daigle v. Booth, 724 So. 2d 605, 606 (Fla. 5th D.C.A. 1998).

    77 McKenna v. Carlson, 25 Fla. L. Weekly D2224 (Fla. 5th D.C.A. September 15, 2000).

    78 Id.

    79 Perez v. Circuit City Stores, Inc., 721 So. 2d 409 (Fla. 3d D.C.A. 1998), rev. dismissed, 729 So. 2d 390 (Fla. 1999).

    80 Labaton v. Mellert, 25 Fla. L. Weekly D1955 (Fla. 4th D.C.A. August 16, 2000).

    81 Kaufman v. Smith, 693 So. 2d 133 (Fla. 4th D.C.A. 1997).

    82 Id. at 133.

    83 Id.

    84 Hilb, Rogal & Hamilton Co. of Ft. Myers v. TB & Associates, Inc., 742 So. 2d 256 (Fla. 2d D.C.A. 1997), rev. dismissed, 698 So. 2d 848 (Fla. 1997).

    85 C&S Chemicals, Inc. v. McDougald, C&S Chemicals, Inc. v. McDougall, 754 So. 2d 795 (Fla. 2d D.C.A. 2000).

    86 Id.

    87 Pirelli Armstrong Tire Corp. v. Jenson, 752 So. 2d 1275, 1276 (Fla. 2d D.C.A. 2000).