Third District Court of Appeal

State of Florida 

Opinion filed March 6, 2024.

Not final until disposition of timely filed motion for rehearing.

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Nos. 3D22-1483; 3D22-1852

Lower Tribunal No. 18-16482

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Angel L. Ortega, et al.,

Appellants/Cross-Appellees,

vs.

All Dade Fences Inc., et al.,

Appellees/Cross-Appellants.

Appeals from the Circuit Court for Miami-Dade County, Barbara 

Areces, Judge.

Sanchez-Medina, Gonzalez, Quesada, Lage, Gomez & Machado LLP, 

Gustavo D. Lage and Augusto R. Lopez, for appellants/cross-appellees.

Conroy Simberg, and Hinda Klein (Hollywood), for appellees/crossappellants.

Before EMAS, GORDO and BOKOR, JJ. 

GORDO, J. 
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Angel L. Ortega and Rebecca Ortega (the “Ortegas”) appeal an order 

granting All Dade Fences, Inc. (“All Dade”) and Yancarlos D. Palacios’ 

(“Palacios”) motion for summary judgment. All Dade and Palacios crossappeal an order denying their motion for entitlement to attorney’s fees. We 

have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). For the reasons discussed 

below, we affirm the order granting summary judgment and reverse the order 

denying entitlement to attorney’s fees. 

These consolidated appeals arise from two automobile collisions that 

occurred in September 2015. The initial collision took place after Mr. Ortega 

rear-ended a vehicle being driven by Palacios. In May 2018, the Ortegas 

filed a complaint against Palacios and All Dade, the owner of the vehicle, for 

negligence, vicarious liability and loss of consortium. Two years later, 

Palacios and All Dade filed a motion for final summary judgment, primarily 

arguing that the Ortegas had failed to rebut the presumption of negligence 

that attaches to the rear driver in a rear-end collision. Following a hearing, 

the trial court granted the motion. Palacios and All Dade moved for section 

768.79 attorney’s fees based on their rejected proposals for settlement. The 

trial court held a hearing and subsequently denied the request for fees after 

concluding that the proposals were ambiguous. This appeal followed.
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I. Summary Judgment 

We review de novo the trial court’s grant of summary judgment. See

Ibarra v. Ross Dress for Less, Inc., 350 So. 3d 465, 467 (Fla. 3d DCA 2022) 

(“The standard of review on orders granting final summary judgment is de 

novo.” (quoting Orozco v. McCormick 105, LLC, 276 So. 3d 932, 935 (Fla. 

3d DCA 2019))). In Florida, “there is a rebuttable presumption of negligence 

that attaches to the rear driver in a rear-end motor vehicle collision case.” 

Birge v. Charron, 107 So. 3d 350, 353 (Fla. 2012). Under this presumption, 

“the driver of the rear vehicle that collides with the back of the lead vehicle is 

presumed negligent unless the rear driver presents evidence that fairly and 

reasonably tends to show that the presumption is misplaced.” Alford v. Cool 

Cargo Carriers, Inc., 936 So. 2d 646, 649 (Fla. 5th DCA 2006). “Unless this 

presumption is rebutted, the beneficiary of the presumption is entitled to 

judgment thereon as a matter of law.” Birge, 107 So. 3d at 353. 

On appeal, the Ortegas argue the trial court erred in granting summary 

judgment because they presented sufficient evidence to overcome the rearend presumption. Upon review of the record, we find the trial court properly 

granted the motion because it is uncontroverted that Palacios did not make 

an abrupt, arbitrary and unexpected stop. See Kao v. Lauredo, 617 So. 2d 

775, 777 (Fla. 3d DCA 1993) (stating that only “[a]ffirmative testimony of a 
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sudden and unexpected stop . . . is sufficient evidence to rebut the 

presumption” of negligence (quoting Liriano v. Gonzalez, 605 So. 2d 575, 

576 (Fla. 3d DCA 1992))) (emphasis added); Clampitt v. D.J. Spencer Sales, 

786 So. 2d 570, 575 (Fla. 2001) (“It is well settled that a sudden stop, without 

more, is insufficient to overcome the presumption of negligence.”);

Chowdhury v. BankUnited, N.A., 366 So. 3d 1130, 1134 (Fla. 3d DCA 2023) 

(“Our new summary judgment standard mirrors the standard for a directed 

verdict such that the inquiry focuses on ‘whether the evidence presents a 

sufficient disagreement to require submission to a jury or whether it is so 

one-sided that one party must prevail as a matter of law.’” (quoting In re 

Amends. to Fla. R. of Civ. P. 1.510, 309 So. 3d 192, 192 (Fla. 2020))); Ibarra, 

350 So. 3d at 467 (stating “[s]ummary judgment is appropriate where the 

movant shows that there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law” and “[i]f the evidence 

is merely colorable, or is not significantly probative, summary judgment may 

be granted”) (citations omitted); Servello & Sons, Inc. v. Sims, 922 So. 2d 

234, 236 (Fla. 5th DCA 2005) (finding that only where “there is evidence from 

which the jury could reasonably conclude that the lead driver’s negligence 

contributed to the collision, the presumption is rebutted and the issue is for 

the jury to decide”).
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II. Attorney’s Fees Pursuant to Proposals for Settlement

“Generally, a party’s entitlement ‘to receive attorney’s fees and costs 

pursuant to section 768.79 and rule 1.442 is reviewed de novo.’” Spanakos 

v. Hawk Sys., Inc., 362 So. 3d 226, 236 (Fla. 4th DCA 2023) (quoting Pratt 

v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015)). In this case, the trial court 

found the proposals for settlement were ambiguous for their failure to “state 

that a judgment would be entered in the amounts offered” and “provide a 

timeframe for payment.” As we recently found in SDG Dadeland Assocs., 

Inc. v. Arias, 49 Fla. L. Weekly D186 (Fla. 3d DCA January 17, 2024), neither 

section 768.79 nor rule 1.442 require that a proposal for settlement contain 

any such language. Accordingly, we reverse the trial court’s order that 

determined the proposals for settlement were ambiguous and, therefore, 

invalid. 

Affirmed in part; reversed in part and remanded for further proceedings 

consistent with this opinion.