sunEthics

Offer of judgment statute and rule permit award of attorney's fees even if underlying contract does not contain attorney's fees provision  [Added 7/17/08]

    Plaintiff sued Defendants over a construction contract.  Defendants served proposals for settlement on Plaintiff, who rejected them.  Defendants prevailed at trial.  Two of the defendants moved for attorney's fees pursuant to F.S. sec. 768.79 and Fla.R.Civ.P. 1.442.  The trial court granted the motion for the individual defendant but denied it as to the corporate defendant.  The court denied the motion because "the underlying construction contract [between Plaintiff and the corporate defendant] did not contain a provision for attorney's fees."

    The Second DCA reversed on appeal.  "We can find no authority supporting the trial court’s conclusion that an award of attorney’s fees pursuant to section 768.79 and rule 1.442 may not be had if the underlying contract fails to contain a provision for attorney’s fees.  To the contrary, we conclude that section 768.79 creates an independent, substantive, and statutory basis for the award of attorney’s fees when the requirements of the statute have been met."  The corporate defendant met the requirements and thus was entitled to attorney's fees.  DuPont Builders, Inc. v. Baker, ___ So.2d ___ (Fla. 2d DCA, No. 2D07-3442, 7/11/2008).

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