MICHAEL AGUADO,

Appellant,

v.

ALLEN MILLER,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D16-4589

_____________________________/

Opinion filed May 16, 2017.

An appeal from the Circuit Court for Escambia County.

Thomas V. Dannheisser, Judge.

Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, and Adrian R. 

Bridges of Michles & Booth, P.A., Pensacola, for Appellant.

Elizabeth A. Parsons and Megan Marie Hall of Wilson, Harrell, Farrington, Ford, 

Wilson, Spain & Parsons, P.A., Pensacola, for Appellee.

PER CURIAM.

Appellant, the plaintiff below, seeks review of an order denying his motion 

for attorney’s fees based on an unaccepted proposal for settlement. The trial court 

denied the motion based on its determination that the proposal was invalid because 
2

it did not strictly comply with section 768.79, Florida Statutes, and Florida Rule of 

Civil Procedure 1.442 in two respects: (1) it did not state whether attorney’s fees 

were part of the claim to be settled, and (2) it did not state the amount offered to 

settle a claim for punitive damages. We reverse based on Kuhajda v. Borden Dairy 

Company of Alabama, LLC, 202 So. 3d 391 (Fla. 2016).1

In Kuhajda, the Court held that “if attorney's fees are not sought in the 

pleadings an offer of settlement is not invalid for failing to state whether the 

proposal includes attorney's fees and whether attorney's fees are part of the legal 

claim.” Id. at 393. This holding squarely rejects the first reason that the trial court 

found Appellant’s proposal for settlement to be invalid. It likewise undermines the 

second reason because, to paraphrase the district court decision approved by the 

Court in Kuhajda, it would make no sense to require the offeror to state in its 

proposal for settlement that the offer does not include punitive damages when the 

plaintiff did not claim an entitlement to them and could not recover them because 

of the failure to plead. See id. at 396 (quoting Bennett v. Am. Learning Sys. of 

Boca Delray, Inc., 857 So. 2d 986, 988-89 (Fla. 4th DCA 2003)).

Here, Appellant did not seek punitive damages in his complaint. 

Accordingly, although there would have been no harm in Appellant including a 

 

1

 The trial court did not have the benefit of Kuhajda when it ruled on Appellant’s 

fee motion, and its ruling was compelled by then-controlling precedent from this 

court that was quashed in Kuhajda.
3

statement in his proposal for settlement indicating that no portion of the amount 

offered was for punitive damages, the absence of such a statement does not render 

the otherwise unambiguous proposal invalid. See Lucas v. Calhoun, 813 So. 2d 

971, 973 (Fla. 2d DCA 2002) (“We conclude that the ‘if any’ language of 

subsection (E)[2] requires a proposal for settlement to include terms for settlement 

of a punitive damage claim only when the pleadings contain a pending claim for 

punitive damages. In the absence of such a claim, the rule does not require a party 

to include needless ‘not applicable’ language in the proposal.”).

Based on Kuhajda (and because we find no merit in Appellee’s “tipsy 

coachman” arguments for affirmance), we reverse the order denying Appellant’s 

motion for attorney’s fees and remand for the trial court to determine the amount 

of the fee award.

REVERSED and REMANDED with directions.

WETHERELL, OSTERHAUS, and M.K. THOMAS, JJ., CONCUR.

 

2

 Fla. R. Civ. P. 1.442(c)(2)(E) (“A proposal [for settlement] shall . . . state with 

particularity the amount proposed to settle a claim for punitive damages, if any.”) 

(emphasis added); see also § 768.79(2)(c), Fla. Stat. (“An offer [of settlement] 

must . . . [s]tate with particularity the amount offered to settle a claim for punitive 

damages, if any.”) (emphasis added).