Supreme Court of Florida

____________

No. SC15-1682

____________

SUSANNE L. KUHAJDA,

Petitioner,

vs.

BORDEN DAIRY COMPANY OF ALABAMA, LLC., et al.,

Respondents.

[October 20, 2016]

CANADY, J.

In this case we consider whether an offer of settlement that fails to address 

attorney’s fees is invalid even though no attorney’s fees have been sought in the 

case. The case is before the Court for review of the decision of the First District 

Court of Appeal in Borden Dairy Co. of Alabama, LLC v. Kuhajda, 171 So. 3d 

242 (Fla. 1st DCA 2015), which held that such an offer of settlement is invalid. 

The First District certified that its decision is in direct conflict with the decision of

the Fourth District Court of Appeal in Bennett v. American Learning Systems of 

Boca Delray, Inc., 857 So. 2d 986 (Fla. 4th DCA 2003). We have jurisdiction. 

See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we hold that if 
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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. We therefore quash the decision of the 

First District in Borden Dairy and approve the decision of the Fourth District in 

Bennett on the conflict issue.

I. BACKGROUND

In the case on review, Susanne L. Kuhajda served Borden Dairy Company 

of Alabama, LLC, and Major O. Greenrock with identical offers of judgment

specifying that the offers included costs, interest, and all damages or monies 

recoverable under the complaint and by law. Borden Dairy, 171 So. 3d at 242-43. 

Ultimately, Kuhajda prevailed on her negligence claim against Borden Dairy and 

Greenrock, and the jury awarded her damages sufficiently in excess of the amount 

contained in her offers of judgment to trigger the payment of fees under section 

768.79(1), Florida Statutes. Following entry of judgment in her favor, the trial 

court granted Kuhajda’s motion to tax attorney’s fees and costs in accordance with 

section 768.79 and Florida Rule of Civil Procedure 1.442. Id. at 242. The trial 

court determined that the failure to include the attorney’s fees language in the offer 

of judgment did not create an ambiguity because Kuhajda never sought attorney’s

fees in her complaint. Id. at 243.
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On appeal, the First District held that an offer of judgment must strictly 

comply with Florida Rule of Civil Procedure 1.442(c)(2)(F) even when the 

complaint does not include a claim for attorney’s fees. Id. The First District 

explained that in Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362 

(Fla. 2013)—a case where the plaintiff sought attorney’s fees in the complaint—

this Court held that an offer of judgment failed to strictly comply with rule 

1.442(c)(2)(F) because it did not state that the offer included attorney’s fees and 

whether attorney’s fees were part of the legal claim. Id. The First District 

reasoned that because Diamond Aircraft made the test for determining the validity 

of an offer of judgment strict compliance rather than the absence of ambiguity, an 

offer must strictly comply with rule 1.442(c)(2)(F) even when attorney’s fees are

not sought in the complaint. Id. The First District thus reversed the order granting 

Kuhajda’s motion to tax attorney’s fees and costs and certified conflict with the 

Fourth District’s decision in Bennett.

II. ANALYSIS

“The certified conflict issue involves the interpretation of the Court’s rules 

and is a question of law subject to de novo review.” Saia Motor Freight Line, Inc. 

v. Reid, 930 So. 2d 598, 599 (Fla. 2006). “The eligibility to receive attorney’s fees 

and costs pursuant to section 768.79 and rule 1.442 is reviewed de novo.” Pratt v. 

Weiss, 161 So. 3d 1268, 1271 (Fla. 2015).
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Section 768.79 and Rule 1.442

“The Legislature has modified the American rule, in which each party pays 

its own attorney’s fees, and has created a substantive right to attorney’s fees in 

section 768.79 on the occurrence of certain specified conditions.” TGI Friday’s, 

Inc. v. Dvorak, 663 So. 2d 606, 611 (Fla. 1995). Florida Rule of Civil Procedure 

1.442 implements section 768.79. See Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 

849 So. 2d 276, 278 (Fla. 2003). In 1996, we amended rule 1.442 to require 

greater detail in an offer of settlement under section 768.79. See id. When this 

Court adopted the amended rule requiring an offer to state whether it included 

attorney’s fees, we explained that these provisions were “procedural” in nature and 

thus within the province of the Court to adopt. In re Amends. to Fla. Rules of Civ.

Proc., 682 So. 2d 105, 106 (Fla. 1996); see article V, § 2(a), Fla. Const. (providing

this Court with exclusive authority to adopt rules for practice and procedure in the 

courts of this State); Se. Floating Docks, Inc. v. Auto-Owners Ins. Co., 82 So. 3d 

73, 79 (Fla. 2012) (“The current version of the offer of judgment statute is 

procedurally buttressed by Florida Rule of Civil Procedure 1.442, which details the 

requirements to properly file a proposal of settlement.”). 

Rule 1.442 provides:

(2) A proposal shall: 

(A) name the party or parties making the proposal and the party 

or parties to whom the proposal is being made; 
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(B) state that the proposal resolves all damages that would 

otherwise be awarded in a final judgment in the action in which the 

proposal is served, subject to subdivision (F);

(C) state with particularity any relevant conditions; 

(D) state the total amount of the proposal and state with 

particularity all nonmonetary terms of the proposal; 

(E) state with particularity the amount proposed to settle a 

claim for punitive damages, if any; 

(F) state whether the proposal includes attorneys’ fees and 

whether attorneys’ fee are part of the legal claim; and 

(G) include a certificate of service in the form required by rule 

1.080.

Fla. R. Civ. P. 1.442(c)(2) (emphasis added).

This Court has held that section 768.79 and rule 1.442 must be strictly 

construed because they are in derogation of the common law rule that each party 

should pay its own fees. See, e.g., Audiffred v. Arnold, 161 So. 3d 1274, 1279

(Fla. 2015) (analyzing an offer of settlement “[u]nder the required strict 

construction of the rule and the statute”); Pratt, 161 So. 3d at 1273 (analyzing an 

offer of settlement “under a strict construction of section 768.79 and rule 1.442”); 

Attorneys’ Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 649 (Fla. 2010) (“This 

Court strictly construes the language of the statute and rule when reviewing the 

several requirements.”); Campbell v. Goldman, 959 So. 2d 223, 227 (Fla. 2007) 

(“[S]trict construction is applicable to both the substantive and procedural portions 
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of the rule and statute.”); Lamb v. Matetzschk, 906 So. 2d 1037, 1040 (Fla. 2005)

(reaffirming a strict construction of rule 1.442); Willis Shaw, 849 So. 2d at 278

(stating that section 768.79 and rule 1.442 were to be strictly construed because 

they are in derogation of the common law rule that each party should pay its own 

fees).

This Court required a strict construction of rule 1.442—and thus a strict 

enforcement of the rule’s requirements—in Audiffred, Pratt, Gorka, Campbell, 

Lamb, and Willis Shaw in contexts in which the provisions of the rule 

implemented the substantive requirements of section 768.79. Notably, none of 

those cases explicitly addresses whether a provision of rule 1.442 must be strictly 

enforced when the provision is a requirement that does not implement a 

substantive requirement of section 768.79.

Diamond Aircraft

In Diamond Aircraft, this Court considered four questions of Florida law 

certified by the United States Court of Appeals for the Eleventh Circuit. Two of 

the certified questions related to Florida’s offer of judgment law. This Court’s 

negative answer to the first certified question concerning Florida’s offer of 

judgment law determined that the offer of judgment law had no application in the 

circumstances presented by the case. The Court nonetheless answered the second 

question regarding whether “a defendant’s offer of judgment [is] valid if, in a case 
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in which the plaintiff demands attorney’s fees, the offer purports to satisfy all 

claims but fails to specify whether attorney’s fees are included and fails to specify 

whether attorney’s fees are part of the legal claim[.]” Diamond Aircraft, 107 So. 

3d at 376 (emphasis added). In concluding that such an offer would be invalid, we 

relied on the rule of strict construction.

In our analysis, we discussed the Fourth District’s decision in Bennett and 

recognized that the facts in Diamond Aircraft were distinguishable: “Unlike the 

complaint in Bennett, the complaint [in Diamond Aircraft] contained a legal claim 

for attorney’s fees, which created an ambiguity in Diamond Aircraft’s offer of 

settlement that was not present in Bennett, thereby necessitating the presence in the 

offer of settlement of a specific statement regarding attorney’s fees.” Id. at 377. 

We went on to question dicta contained in Bennett, in which the Fourth District 

“state[d] that a general offer of settlement . . . (i.e., one that stipulates settlement of 

all claims) is broad enough to include any claim for attorney’s fees.” Id. In the 

context of our discussion of this dicta, we observed that our post-Bennett case law 

requiring the strict construction of the statute and rule “draws the continuing 

validity of Bennett into question.” Id. Although we acknowledge that this 

statement might be understood as questioning the holding of Bennett, we believe

that it is instead properly understood in context as an observation regarding the
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dicta in Bennett concerning an offer that “stipulates [a] settlement of all claims[.]” 

Id.

The Instant Case

Here, we consider a circumstance in which rule 1.442(c)(2)(F) contains a

requirement to include in a settlement proposal a specific element that section 

768.79 does not require. The purpose of section 768.79 is to “reduce litigation 

costs and conserve judicial resources by encouraging the settlement of legal 

actions.” Gorka, 36 So. 3d at 650; see Unicare Health Facilities, Inc. v. Mort, 553 

So. 2d 159, 161 (Fla. 1989) (explaining that rule 1.442 “was implemented solely 

to encourage settlements in order to eliminate trials if possible”). The only 

purpose of rule 1.442 is to provide a procedural framework to implement the 

substantive requirements of section 768.79 regarding settlement proposals. See Se. 

Floating Docks, 82 So. 3d at 79; Willis Shaw, 849 So. 2d at 278. Rule 

1.442(c)(2)(F)’s requirements relating to attorney’s fees are totally irrelevant to the 

settlement of a case in which attorney’s fees are not sought.

We decline to invalidate Kuhajda’s offers of judgment solely for violating a 

requirement in rule 1.442 that section 768.79 does not require. The procedural rule 

should no more be allowed to trump the statute here than the tail should be allowed 

to wag the dog. A procedural rule should not be strictly construed to defeat a 

statute it is designed to implement.
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Kuhajda is entitled to attorney’s fees under section 768.79 because the offers 

of judgment at issue in this case are not ambiguous. As explained previously, 

Kuhajda served Borden Dairy and Greenrock with identical offers of judgment 

specifying that the offers included costs, interest, and all damages or monies 

recoverable under the complaint and by law. Borden Dairy, 171 So. 3d at 242-43. 

The failure to include the attorney’s fees language in the offer of judgment did not 

create an ambiguity because Kuhajda never sought attorney’s fees in her 

complaint. Id. at 243. Neither Borden Dairy nor Greenrock argues to the contrary, 

and it is indisputable that Kuhajda fully complied with the relevant requirements of 

the rule that implement the substantive requirements of section 768.79.

We agree with Bennett that “[i]t would make no sense to require a defendant 

to state in its offer of judgment that the offer does not include attorney’s fees, when 

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

of failure to plead” and “there [is] no ambiguity in the proposal.” Bennett, 857 So. 

2d at 988-89. As this Court has recognized, “a claim for attorney’s fees, whether 

based on statute or contract, must be [pleaded]” unless “a party has notice that an 

opponent claims entitlement to attorney’s fees, and by its conduct recognizes or 

acquiesces to that claim or otherwise fails to object to the failure to plead 

entitlement[.]” Stockman v. Downs, 573 So. 2d 835, 837-38 (Fla. 1991). 
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We therefore hold that 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 under rule 1.442(c)(2)(F) if attorney’s fees are not sought in the 

pleadings. Bennett correctly concluded that an offer of judgment need not strictly 

comply with the requirements of rule 1.442(c)(2)(F) when attorney’s fees are not 

sought in the pleadings. Borden Dairy erred in disagreeing with Bennett.

III. CONCLUSION

We approve Bennett on the conflict issue and quash Borden Dairy, and 

remand to the First District for proceedings consistent with this opinion.1 

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

POLSTON, J., concurs in result.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

Application for Review of the Decision of the District Court of Appeal – Certified 

Direct Conflict of Decisions

First District – Case No. 1D14-4706

(Bay County)

Talley L. Kaleko of the Law Offices of Robert Scott Cox, PL, Tallahassee, Florida,

for Petitioner

 

1. We also disapprove Colvin v. Clements & Ashmore, P.A., 182 So. 3d 

924 (Fla. 1st DCA 2016), which follows the reasoning of Borden Dairy.
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Charles Franklin Beall, Jr. of Moore, Hill & Westmoreland, P.A., Pensacola, 

Florida,

for Respondents