3d DCA Watch -- These Are A Few Of My Favorite Things

Cream colored ponies and crisp apple streudels
Doorbells and sleigh bells and schnitzel with noodles
Defaults and defective proposals to settle
These are a few of my favorite things

Hi kids, I've been humming that song all day -- the lid has been lifted, the coffee has been swilled, and the written utterances are again wafting their way north from the temporary judicial bunker located somewhere deep beneath the FIU campus.

In short, all is well with the world:

Milton v. Reyes:

Wow, that is so weird!

You're never gonna guess, but the 3d has issued yet another ruling dealing with proposals for settlement under F.S. 768.69 and Rule 1.442.

Who'd a thunk -- you mean the law is not already crystal-clear in this area?

In this week's opinion, Judge Shepherd opens up a can of strict constructionist whoop....well, you know what I mean:

On March 1, 2007, fifteen months before trial, counsel for Reyes filed with the trial court a one-page “Notice of Service of Proposal for Settlement to Defendant Pursuant to F.S. § 768.79 and Fla. R. Civ. P. 1.442.” The Notice contained the following certificate of service:

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 1st day of March, 2007, to Herbert C. Andrews, Esquire, Law Office of Paul F. Clark, 9130 South Dadeland Boulevard, Two Datran Center, Suite 1701, Miami, Florida 33156.

It is not disputed that counsel for Reyes mailed the Notice to opposing counsel on the date stated in the certificate. Counsel for Reyes also included in the envelope a separate, two-page document entitled “Plaintiff’s Proposal for Settlement to Defendant,” offering to settle the case for $199,999. It also is agreed International Club received the envelope and its enclosures. However, the proposal did not contain a certificate of service. Florida Rule of Civil Procedure 1.442, “Proposals for Settlement,” reads in pertinent part:

(c)(2) A proposal shall:
. . .
(G) include a certificate of service in the form required by rule 1.080(f).

Id. (emphasis added).

In all other respects, the proposal met the requirements of section 768.79 of the Florida Statutes (2007), and Florida Rule of Civil Procedure 1.442.

HAHAHA -- sucker!! Your Notice had a certificate of service, but the attached proposal to your Notice did not also have a certificate of service!

Good God man, what do I have to do, read the rule and the statute to you out loud, slowly, and harmonize them in a way that makes sense given contradictory Florida case law and including the fact that many of the cases deal with old versions of either the statute, the rule, or both?

No, all you need to do is know when to go with a dissent from another district:

We recognize that shortly after Campbell, the First District Court of Appeal, in Jefferson v. City of Lake City, 965 So. 2d 174, 175 (Fla. 1st DCA 2007), found enforceable an offer which therein cited a non-existent statutory provision, but the correct statute number in the “notice of proposal for settlement.” However, we find persuasive Judge Kahn’s dissent that “[p]rudent counsel, being aware of [Campbell], may have well made a tactical decision not to respond to the offer of settlement in this case, confident that, because the form of the offer was defective, no sanctions could flow from rejection of the offer.” Id. (Kahn, J., dissenting).
“The . . . result here may be viewed as strict, but it is certainly not harsh.” Id.

Don't sell yourself short, Judge -- it's a teensy bit harsh too.

1445 Washington v. Lemontang:

Finally, an area of law that no lawyer or judge could ever get wrong -- default judgments.

Did you know attorney's fees are unliquidated damages in the default context and you have to give notice of the evidentiary hearing before awarding same, and a "few days" notice is insufficient and oh hail I'm going to wait for next week when hopefully they will explain this area of the law to the ham-and-schleppers all over again.

BTW, I hope Lemontang becomes a frequently cited case, and not just (well only just) because I really like the name Lemontang.

(Shhh -- don't tell Venetian Salami, she's a jealous mistress.)