Opinion
Case No. 2D03-3140.
Opinion filed June 18, 2004.
Appeal from the Circuit Court for Hillsborough County, Herbert J. Baumann, Jr., Judge.
Ricardo A. Roig of Ricardo A. Roig, P.A., Tampa, for Appellant.
Alan M. Gross of Powell, Carney, Gross, Maller Ramsay, P.A., St. Petersburg, for Appellee.
RDR Computer Consulting Corporation (RDR) appeals a final judgment that was entered in its favor against Eurodirect, Inc. RDR challenges the trial court's decision to deny its request for attorneys' fees and prejudgment interest. We reverse the denial of prejudgment interest but affirm the denial of attorneys' fees.
I. PREJUDGMENT INTEREST
RDR entered into written agreements with Eurodirect to provide certain computer software services for a one-year period ending on April 28, 2000. Soon after the contract went into effect, the relationship between the parties soured. In September 1999, Eurodirect filed a four-count complaint against RDR alleging civil conspiracy to defraud, conversion, unjust enrichment, and breach of confidential relationship. RDR filed a counterclaim alleging breach of contract and amounts due pursuant to the contract or on open account. The case proceeded to trial by jury in January 2003, and the jury denied relief to Eurodirect on all counts and found for RDR on its counterclaim, awarding RDR $49,214.40 in damages for breach of contract and open account. The jury's award was precisely the amount claimed by RDR for services rendered through April 28, 2000. The jury was not asked to determine the date this payment was due.
RDR's counterclaim requested damages "including interest" but did not expressly request "prejudgment interest." Prejudgment interest was not addressed in the pretrial order. Both the jury instructions and the verdict form relied on language similar to the language in Florida Standard Jury Instruction (Civil) 12.1(I), which does not mention prejudgment interest and instructs the jury to return an amount that will "fairly and adequately compensate" the claimant for damages caused by the breaching party's failure to perform. RDR expressly raised the issue of prejudgment interest for the first time in a post-verdict motion that requested entry of a judgment including such interest. The trial court denied the request for prejudgment interest because RDR had not formally reserved this issue for resolution by the judge prior to the case being submitted to the jury for a determination of damages.
There is considerable merit to the trial court's position that a claimant who intends to seek prejudgment interest from the judge following a jury verdict should be required to declare its intent prior to closing arguments. There certainly is a risk that a party's failure to disclose this issue prior to the jury's deliberations could make it impossible to know whether the jury had considered this element of damage. That risk should be borne by the claimant. In this case, however, the jury received no instructions on prejudgment interest and it is obvious that the jury awarded RDR the damages that were due on or before April 28, 2000. The damages were thus liquidated from that date.
Under the loss theory for prejudgment interest and the rule announced in Argonaut Insurance Co. v. May Plumbing Co., 474 So.2d 212 (Fla. 1985), RDR was entitled to an award of prejudgment interest because the verdict involved damages that were liquidated as of a date certain, April 28, 2000. RDR was entitled to this award "as a matter of law," which simply means that the function of adding interest to the verdict could be performed by the trial judge. See Argonaut, 474 So.2d at 215; Summerton v. Mamele, 711 So.2d 131, 133 (Fla. 5th DCA 1998); see also Broward County v. Finlayson, 555 So.2d 1211 (Fla. 1990) (upholding Argonaut but stating that prejudgment interest can be denied if it would be inequitable). This court has held that it is not necessary for the jury to actually determine the date on which the damages were liquidated, so long as that date is clear from the context of the litigation. See Charles Buzbee Sons, Inc. v. Falkner, 585 So.2d 1190, 1191 (Fla. 2d DCA 1991); see also Vining v. Martyn, 660 So.2d 1081, 1082 (Fla. 4th DCA 1995). In this case it is clear that the jury liquidated damages in the amount of $49,214.40, the exact amount due no later than April 28, 2000, when the contract terminated.
It is probable that installment payments were actually due on this contract prior to the end of the contract. In the absence of a more specific verdict or a clearer record, we conclude that RDR has failed to establish a right to any additional interest that may have accrued on earlier installment amounts. See generally Nat'l Educ. Ctrs., Inc. v. Kirkland, 678 So.2d 1304 (Fla. 4th DCA 1996).
Nothing in existing case law requires the claimant to expressly reserve the issue of prejudgment interest for resolution by the trial judge after the jury's verdict. Indeed, prejudgment interest is merely an element of damage. It does not need to be specially pleaded. See Fayed v. Altshuler, 676 So.2d 1062 (Fla. 4th DCA 1996); Tillman v. Howell, 634 So.2d 268, 270 (Fla. 4th DCA 1994). Thus, the trial court erred in ruling that RDR was required to expressly reserve this issue for resolution by the trial judge. Accordingly, we reverse the trial court's denial of prejudgment interest and remand to award prejudgment interest from April 28, 2000, to the date of the judgment.
Prior to the adoption of the loss theory for prejudgment interest in Argonaut, this court had suggested that there may be a special pleading requirement for prejudgment interest. See Harry E. Robbins Assocs. v. Sudbury, 467 So.2d 343 (Fla. 2d DCA 1985). After Argonaut, this court clearly cannot compel plaintiffs to specially plead an element of damage that does not require special pleading as special damage under the Florida Rules of Civil Procedure. See Fla. R. Civ. P. 1.120(g); see also Augustine v. S. Bell Tel. Tel. Co., 91 So.2d 320 (Fla. 1956).
A trial court may be authorized to include in its standard pretrial order a requirement that a party indicate whether it is seeking prejudgment interest from the judge or from the jury. Whether a court could thereafter deny prejudgment interest to a party who failed to expressly reserve the issue is an interesting question not presented by this case.
II. ATTORNEYS' FEES ON THE PROPOSAL FOR SETTLEMENT
After the trial, RDR filed a motion for attorneys' fees based on a proposal for settlement that it had served pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (2001). That offer had proposed to settle Eurodirect's claim for $250. It did not propose to settle RDR's counterclaim against Eurodirect.
At the time the proposal was served, Eurodirect was suing both RDR and RDR's sole officer and director, Richard Rodriguez. Although Mr. Rodriguez was dismissed from the suit prior to trial, he was a party when the proposal was served. The offer was expressly made only by "Defendant, RDR Computer Consulting Corporation," and was intended to resolve all of the claims asserted by Eurodirect against "Defendant." RDR conditioned its proposal upon Eurodirect filing a notice of voluntary dismissal with prejudice in the action against the "Defendants." In other words, RDR was offering $250 in an attempt to settle claims against both RDR and Mr. Rodriguez. Although the offer was attempting to settle claims against two defendants whom Eurodirect's complaint had alleged to be jointly and severally liable for all damages, the offer did not apportion the amounts offered by each defendant.
It certainly was logical for RDR to propose a settlement of all claims against it and its sole officer. It is also unlikely that the offer confused Eurodirect because Eurodirect made no effort to plead damages separately against Mr. Rodriguez. All theories were alleged against both defendants, and all damages were alleged to be jointly and severally due by both defendants. This is not a negligence case in which the comparative fault statute could have resulted in differing judgments against the two defendants. See § 768.81(4), Fla. Stat. (2001). Thus, it would have been difficult or impossible for the defendants to offer separate and distinct settlement amounts.
This court has approved an offer by one defendant for the liability of two defendants where the offering defendant was vicariously liable for the actions of the other. See Barnes v. The Kellogg Co., 846 So.2d 568 (Fla. 2d DCA 2003). Other courts have expressly declined to follow the rule announced in Barnes, although they have done so in cases with distinctly different facts. See McElroy v. Whittington, 867 So.2d 1241 (Fla. 4th DCA 2004) (reversing award of attorneys' fees for failure to apportion proposal between two plaintiffs); Matetzschk v. Lamb, 849 So.2d 1141 (Fla. 5th DCA 2003) (reversing attorneys' fee award where single plaintiff made undifferentiated offers of judgment to joint defendants); see also Meyer v. Hutchinson, 861 So.2d 1185 (Fla. 5th DCA 2004) (reversing attorneys' fees for failure to apportion proposal between two plaintiffs).
The supreme court has recently held that "an offer from multiple plaintiffs must apportion the offer among the plaintiffs." See Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 279 (Fla. 2003). It is not clear that the supreme court intended to adopt a similar rule for an offer to a single plaintiff from multiple defendants who may be jointly and severally liable. However, in Hilyer Sod the supreme court quoted from this court's opinion in Allstate Insurance Co. v. Materiale, 787 So.2d 173, 175 (Fla. 2d DCA 2001), in which we announced that "[w]hen two offerors make a proposal for settlement to one offeree, the offeree is entitled to know the amount and terms of the offer that are attributable to each offeror in order to evaluate the offer as it pertains to that party." Hilyer Sod further emphasized that section 768.79 is in derogation of the common law and must be strictly construed. 849 So.2d at 278-79.
We are inclined to believe that the language in rule 1.442 could be interpreted to permit one defendant to make a monetary offer to a single plaintiff to settle the claim against that defendant, which is conditioned upon the dismissal of the defendants who may be jointly and severally liable. The rule expressly states that a proposal shall "state with particularity any relevant conditions." See Fla. R. Civ. P. 1.442(c)(2)(C). Such a dismissal of these defendants would appear to be a proper and relevant condition. However, section 768.79 does not contain language expressly allowing for a settlement conditioned upon a dismissal against all defendants, and we are concerned that we would fail to strictly construe that statute if we so ruled. Accordingly, we conclude that a defendant cannot recover fees on an offer made to a plaintiff that is conditioned upon a dismissal of an action against other defendants who are not offering separate amounts to settle the lawsuit. Thus, we affirm the trial court's ruling on this issue.
Although not applicable in this case, we note that the legislature has long encouraged defendants to settle an entire claim with a plaintiff and then seek contribution from other tortfeasors. See § 768.31, Fla. Stat. (2001). Even when such a settlement results in continued litigation, the lawsuit is usually far less complex. We recognize that our ruling today makes it more difficult for a defendant to utilize these procedures.
Because of the continuing uncertainty about the rule announced in Barnes and the ability of a defendant to offer an amount to a single plaintiff to settle a lawsuit against several defendants who are jointly and severally liable, we certify the following question of great public importance:
PURSUANT TO SECTION 768.79, FLORIDA STATUTES (2001), AND FLORIDA RULE OF CIVIL PROCEDURE 1.442, MAY A SINGLE DEFENDANT WHO MAY BE JOINTLY AND SEVERALLY LIABLE WITH ONE OR MORE CODEFENDANTS OFFER TO SETTLE A SINGLE PLAINTIFF'S CLAIM CONDITIONED UPON THE DISMISSAL OF CLAIMS AGAINST ALL DEFENDANTS?
Reversed in part, affirmed in part, and remanded.
FULMER and CASANUEVA, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED