DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SOUTHERN SPECIALTIES, INC.,

a Florida corporation,

Appellant,

v.

FARMHOUSE TOMATOES, INC.,

a Florida corporation,

Appellee.

Nos. 4D17-2933 and 4D18-507

[November 21, 2018]

Consolidated appeals from the Circuit Court for the Fifteenth Judicial 

Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. Case No. 

502010CA028491XXXXMB.

John R. Whittles and David R. Miller, Jr. of Mathison Whittles, LLP, 

Palm Beach Gardens, for appellant.

George P. Ord of Murphy Reid, L.L.P., Palm Beach Gardens, for 

appellee.

WARNER, J.

Appellant, Southern Specialties, Inc., appeals from a final judgment in 

favor of the appellee, Farmhouse Tomatoes, Inc., and from an order 

granting attorney’s fees and costs to Farmhouse. Southern contends that 

the court erred by finding that the statute of limitations barred its claim 

for unjust enrichment. As to the attorney’s fees judgment, Southern

argues that the offer of judgment, upon which the fees award was based, 

was defective. We affirm the trial court’s conclusion that the statute of 

limitations barred the unjust enrichment action. We reverse, however, the 

award of attorney’s fees, agreeing that the offer of judgment was invalid 

because it was a general offer to settle both equitable and damage claims, 

which is not permitted under section 768.79, Florida Statutes.

Southern grows and distributes specialty fruits and vegetables to 

retailers and food service operators. Farmhouse grows heirloom tomatoes. 

Southern began buying tomatoes from Farmhouse, and in 2003, Southern
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loaned Farmhouse monies for specific uses in growing tomatoes, as 

evidenced by various promissory notes. In 2004, the parties entered into 

a joint venture agreement and commenced operations as a joint venture, 

but by 2009, their relationship had soured.

Southern sent Farmhouse a demand for repayment of the monies 

borrowed in 2003. When repayment was not forthcoming, Southern filed 

a complaint against Farmhouse for unjust enrichment for failing to repay 

the monies loaned; tortious interference for Farmhouse contacting 

Southern’s customers and excluding it from the sales; and for a permanent 

injunction to enjoin Farmhouse from using Southern’s customer lists and 

confidential information.

Farmhouse answered, raising as an affirmative defense that the unjust 

enrichment claim was barred by the four-year statute of limitations for 

legal or equitable actions not founded on a written instrument. See § 

95.11(3)(k), Fla. Stat. It also filed a counterclaim, demanding payment for 

outstanding invoices. Southern replied, claiming that Farmhouse had 

made partial payments on its debt which tolled the statute of limitations

pursuant to section 95.051(1)(f), Florida Statutes.

Farmhouse filed an offer of judgment a few months before trial. It 

offered to settle all claims for $50,000. Southern did not accept the offer.

The case proceeded to a non-jury trial. At trial, Southern withdrew its 

injunction claim. After the presentation of all evidence, the court found 

that the unjust enrichment claim as pled was not based upon a written 

agreement, and thus, it was time barred. Even if the claim was not time 

barred, the parties were operating as a joint venture. Further, the court 

found that Farmhouse had not made payments on the note so as to toll 

the statute of limitations, noting that Southern had to repay Farmhouse 

for sums that Southern withheld from the sales proceeds. The court found 

against Southern on the tortious interference claim and in favor of 

Farmhouse on its counterclaim, awarding $24,870.54 as damages. Later, 

Farmhouse moved for attorney’s fees based upon its denied offer of 

judgment. The court found entitlement, and the parties stipulated to a 

reasonable amount of fees and costs. The court entered final judgment for 

fees. This appeal was brought from both judgments.

We review de novo whether a claim is barred by the applicable statute 

of limitations. Beltran v. Vincent P. Miraglia, M.D., P.A., 125 So. 3d 855, 

859 (Fla. 4th DCA 2013). We conclude that the court properly found that 

the unjust enrichment claim was barred by the statute of limitations.

Southern pled an unjust enrichment claim based upon monies loaned, 
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without referencing any written instrument. Thus, a four-year statute of 

limitations applied. See § 95.11(3)(k), Fla. Stat. Although Southern

contended that the statute was tolled pursuant to section 95.051(1)(f), 

Florida Statutes, by partial payments on the monies loaned to Farmhouse,

that section applies only to partial payments on obligations “founded on a 

written instrument.” As Southern elected to frame its claim without 

reference to a written instrument, the tolling provision did not apply. 

Moreover, the trial court found that Southern withheld from sales proceeds

amounts which were owed to Farmhouse; however, because Farmhouse 

had objected that those amounts were improperly deducted, Southern 

actually had repaid those amounts to Farmhouse. Accordingly, those 

amounts did not constitute partial payments on the obligation. We thus 

affirm the trial court’s judgment in favor of Farmhouse.

With respect to the order granting attorney’s fees under section 768.79, 

Florida Statutes, we reverse. Farmhouse’s offer of judgment stated that it 

would resolve “all claims” by either party against the other. Based upon 

Southern’s complaint, those claims included both monetary and equitable 

claims, including its claim for injunctive relief. Because the offer was 

directed at all claims made by Southern, it was invalid.

In Diamond Aircraft Industries, Inc. v. Horowitch, 107 So. 3d 362, 374

(Fla. 2013), the supreme court held “that section 768.79 does not apply to 

an action in which a plaintiff seeks both damages and equitable relief, and 

in which the defendant has served a general offer of judgment that seeks 

release of all claims.” There, the plaintiff brought a claim for specific 

performance, breach of contract, and for deceptive and unfair trade 

practices involving the sale of a jet. Id. at 365. Diamond served an offer 

of judgment to resolve all claims asserted by the plaintiff, which claim was 

not accepted. Id. at 365-66. Ultimately, Diamond obtained a judgment in 

its favor and moved for attorney’s fees based on the offer of judgment. Id.

at 366. The trial court denied the motion, concluding that section 768.79

did not apply because the plaintiff had asserted both equitable and 

damage claims. Id. Upon an appeal to the Eleventh Circuit, the court 

certified questions to the Florida Supreme Court, including the 

applicability of section 768.79 where the party requests both monetary 

and nonmonetary relief. Id. at 366, 372. 

In answering the certified question, the supreme court noted that 

section 768.79 and Florida Rule of Civil Procedure 1.442 must be strictly 

construed because they “are in derogation of the common law rule that a 

party is responsible for its own attorney’s fees . . . .” Id. at 372. “[S]ection 

768.79(1) explicitly states that the offer of judgment statute applies to ‘any 

civil action for damages.’” Id. at 375 (emphasis added in Diamond). Thus, 
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the offer of judgment statute does not apply if the plaintiff seeks both 

damages and equitable relief. Id. at 374. There is no exception for 

instances in which an equitable claim lacks serious merit. Id. Thus, 

because the offer sought to settle all claims, both equitable and monetary, 

the offer was invalid under the statute. Id. at 375-76. Here, the offer was 

made to settle all claims, both monetary and equitable. Based on 

Diamond, the trial court erred in granting fees based upon the offer of 

judgment.

We distinguish MYD Marine Distributor, Inc. v. International Paint Ltd., 

187 So. 3d 1285 (Fla. 4th DCA 2016). In MYD, the complaint alleged 

various causes of action for money damages, but it also included a request 

for permanent injunction. Id. at 1286. The defendant made an offer of 

judgment to settle only the claims for money damages. Id. It specifically 

excluded the claim for injunctive relief. Id. Under those circumstances, 

our court held that the “true relief” being requested by the plaintiff was 

only monetary damages, and we determined that the offer was enforceable. 

Id. at 1287. In this case, however, Farmhouse did not attempt to carve 

out the injunctive relief claim. Its offer attempted to settle all claims. 

Therefore, Diamond is controlling.

For the foregoing reasons, we affirm the final judgment in favor of 

Farmhouse on Southern’s claims and Farmhouse’s counterclaim. We 

reverse the award of attorney’s fees to Farmhouse and direct that the 

attorney’s fees judgment be vacated.

GERBER, C.J., and FORST, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.