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Florida Third DCA rules that defendant’s nominal proposal for settlement was not made in bad faith because defense had well-founded and correct belief that sovereign immunity barred lawsuit

On June 19, 2019, in Miccosukee Tribe of Indians of Florida v. Lewis Tein, P.L., et al., No, 3D18-1132, the Florida Third DCA reversed a trial court’s ruling that the prevailing defendant was not entitled to attorney’s fees and costs under Fla. Stat. § 768.79.  The trial court had denied the defendant Indian tribe’s motion to dismiss the lawsuit on sovereign immunity grounds.  While that issue was pending before the Third DCA on interlocutory appeal, the defendant issued an offer of judgment to each of the three plaintiffs offering to settle each of their claims for $2,500. The offers were not accepted.  The Third DCA subsequently ruled in the defendant’s favor on the sovereign immunity issue and the trial court dismissed the case.  Following the dismissal, the defendant moved for attorney’s fees pursuant to Fla. Stat. § 768.79, which authorizes such fees if the plaintiff rejects an offer and is later awarded less than 75% of the amount of the offer.  The trial court denied the motion based in part on the determination that the offers lacked good faith because they were nominal in amount.  On appeal, the Third DCA held that proof of bad faith requires a showing beyond the mere amount of the offer, citing Fox v. McCaw Cellular, 745 So. 2d 330, 333 (Fla. 4th DCA 1998). The Third DCA noted the defendant’s “well-founded, good faith, and legally correct belief that sovereign immunity divested the trial court of subject matter jurisdiction” as proof of the defendant’s good faith in making only nominal offers to settle the case.

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