Summary
In Donohoe, the defendants made an offer of settlement to the plaintiff and the plaintiff requested extra time to complete two depositions.
Summary of this case from Koppel v. OchoaOpinion
No. 98-02808.
Opinion filed October 22, 1999.
Appeal from the Circuit Court for Hillsborough County; James D. Whittemore, Judge.
Thomas W. Dickson and Luis A. Cabassa of Fechter Dickson, P.A., Tampa, for Appellants.
Samuel L. Bare, III of Bare Associates, Miami, for Appellee.
The appellants, Patricia Donohoe and TBM Staffing, Inc., defendants in an action for violation of an employment agreement, appeal an order denying their motion for attorney's fees and costs. Their motion for fees was based upon an offer of judgment they served upon the plaintiff/appellee StarMed Staffing, Inc., pursuant to Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes (1997). The trial court denied the motion. The appellants claim the trial court erred in determining that the appellee's motion for enlargement of time tolled the time in which it could respond to the offer of judgment. They also claim that the trial court abused its discretion in determining that the offer of judgment was not made in good faith. We agree with the appellants and, therefore, we reverse.
Section 768.79 and rule 1.442, both governing offers of judgment, provide that if a party is entitled to fees and costs based on an offer of judgment, as is the case here, the court may, in its discretion, determine that the proposal was not made in good faith. The obligation of good faith insists that the offeror have some reasonable foundation on which to base an offer. See Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993). Trial courts should view with considerable skepticism nominal offers which bear no reasonable relationship to damages and which are not founded upon a reasonable and realistic assessment of liability. See Eagleman v. Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996).
In this case, at the time the appellants made the offer of judgment, they had taken the depositions of the appellee's president and vice-president. At the hearing on the motion for fees, counsel for the appellants represented to the trial court that the deposition testimony of the appellee's witnesses failed to establish any basis for the lawsuit. As a result, the appellants filed the offer of judgment.
When the appellee received the offer of judgment, it asked the appellants to extend the time for responding to the offer until it could complete the depositions of Ms. Donohoe and Kevin Little, TBM's president. Counsel for the appellants declined, expressing their belief that the depositions of Ms. Donohoe and Mr. Little would not provide any additional information to change their view. Thereafter, the appellee filed with the trial court a motion for enlargement of the time to respond. This motion was never heard, nor was it ever scheduled with the trial court to be heard.
As noted above, the obligation of good faith merely requires that the offeror have a reasonable foundation on which to base the offer. See Schmidt, 629 So.2d at 1039. It does not demand that the offeror possess, at the time he makes the offer, the kind or quantum of evidence needed to support a judgment. See Id. In this case, counsel for the appellants had deposed the appellee's witnesses and had discerned no basis for the lawsuit. Further, counsel for the appellants had a good faith basis for believing they knew what their own witnesses' testimony would be at deposition. This information constituted a reasonable foundation on which to base the offer. Thus, the trial court abused its discretion in finding that the offer was not made in good faith.
The trial court also found that the appellee's motion for enlargement of time had the effect of tolling the time in which to respond to the offer, relying on Goldy v. Corbett Cranes Services, Inc., 692 So.2d 225 (Fla. 5th DCA 1997). Goldy, however, is distinguishable from the instant case, because the offer of judgment in Goldy was withdrawn before the motion for enlargement could be heard. In this case, the appellee chose not to set its motion for a hearing, because Ms. Donohoe's and Mr. Little's depositions had been scheduled.
We therefore reverse the trial court's order denying the appellants' motion for attorney's fees and costs and remand with directions to grant the motion.
Reversed and remanded.
FULMER, J., and JACOBSEN, DONALD G., ASSOCIATE JUDGE, Concur.