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Florida Fifth DCA rules that amount of plaintiff’s separate proposals for settlement to two defendants should not be aggregated in determining whether 125% threshold met for award of attorney’s fees under F.S. § 768.79

On October 11, 2019, in Nunez v. Allen, the Florida Fifth DCA considered a case on remand from the Florida Supreme Court, which had quashed a previous decision by the Fifth DCA that the plaintiff’s proposals for settlement to the defendants were fatally ambiguous. See I, 258 So. 3d 1207, 1217 (Fla. 2018). On remand, the defendants alternatively argued that the twin proposals for settlement should be aggregated when determining whether the 125% threshold had been passed to qualify for the award of attorney’s fees under F.S. § 768.79 (the statute requires that to qualify for an award of attorney’s fees the plaintiff must have obtained a judgment of at least 25% greater than the offer). The Fifth DCA noted that the Florida Supreme Court had already rejected this argument inI, 202 So. 3d 846, 858 (Fla. 2016).

The Fifth DCA also concluded that the plaintiff in the motor vehicle negligence action, an experienced trial attorney, was entitled to include in the computation of attorney’s fees the time he spent representing himself in the case. The Fifth DCA cited longstanding Fifth DCA precedent that attorney’s fees should be awarded to an attorney representing himself in a case where the fees would be recoverable by the same party if represented by independent counsel. See McClung v. Posey, 514 So. 2d 1139, 1140 (Fla. 5th DCA 1987). The defendants alternatively argued that consistent with the First District Court’s decision in Maulden v. Corbin, 537 So. 2d 1085 (Fla. 1st DCA 1989), any portion of the attorney’s fees awarded by the trial court to the plaintiff for his legal services after he was represented by co-counsel was error and should be stricken. The Fifth DCA disagreed, concluding that the decision whether to award attorney’s fees to an attorney, who is a party in the case, for his or her own services performed during the time when the attorney is also being represented by co-counsel is dependent upon whether the task performed by the party-attorney is for actual legal services, citing a similar decision in Transflorida Bank v. Miller, 576 So. 2d 752 (Fla. 4th DCA 1991).