Stevens, Stevens v. Florida Peninsula Insurance Company

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

LORETTA STEVENS and GORDON STEVENS,

Appellants,

v.

FLORIDA PENINSULA INSURANCE COMPANY,

Appellee.

No. 2D2024-0253

August 29, 2025

Appeal from the Circuit Court for Pinellas County; Thomas M.

Ramsberger, Judge.

Mark A. Nation and Paul W. Pritchard of the Nation Law Firm, Longwood,

for Appellants.

Joseph A. Matera and Andrew A. Labbe of Salmon & Salmon, P.A.,

Tampa; and Kimberly A. Salmon (substituted as counsel of record), for

Appellee.

KHOUZAM, Judge.

Insureds Loretta and Gordon Stevens appeal a judgment for

attorney's fees and costs in favor of Florida Peninsula Insurance

Company pursuant to proposals for settlement. Because the trial court

correctly found that the proposals were valid and enforceable, we affirm.

In 2017, the Insureds filed an action alleging that the Insurer had

failed to pay benefits owed under their policy. In 2020, the Insurer

served upon both Insureds substantively identical proposals for

settlement, each of which contained a general release. The Insureds did

not timely accept the proposals, thereby rejecting them.

Ultimately, in 2022 the trial court entered summary judgment for

the Insurer, who thereafter moved for fees and costs based on the

rejected proposals for settlement. By the time of the hearing, the Florida

Supreme Court had amended Florida Rule of Civil Procedure 1.442 to

require that proposals "exclude nonmonetary terms, with the exceptions

of a voluntary dismissal of all claims with prejudice and any other

nonmonetary terms permitted by statute." In re Amendments to Fla. R.

Civ. P. 1.442, 345 So. 3d 845, 846 (Fla. 2022). The trial court granted

the Insurer's motion and entered the judgment we now review.

On appeal, the Insureds challenge the proposals as invalid and

unenforceable. They contend primarily that the general releases should

have invalidated the proposals even before the 2022 rule amendment.

But prior to the 2022 rule amendment excluding nonmonetary

terms, the mere inclusion of a release was not a bar to enforcement of a

proposal for settlement. See, e.g., State Farm Mut. Auto. Ins. v. Nichols,

932 So. 2d 1067, 1080 (Fla. 2006) ("The district courts have consistently

held, and we agree, that settlement proposals must clarify which of an

offeree's outstanding claims against the offeror will be extinguished by

any proposed release."); Carey-All Transp., Inc. v. Newby, 989 So. 2d

1201, 1206 (Fla. 2d DCA 2008) ("[G]eneral releases contained in

proposals for settlement are enforceable to further the policy of

encouraging settlements." (alteration in original) (quoting Bd. of Trs. of

Fla. Atl. Univ. v. Bowman, 853 So. 2d 507, 509 (Fla. 4th DCA 2003));

Sanchez v. Cinque, 238 So. 3d 817, 826-27 (Fla. 4th DCA 2018)

(reversing denial of attorney's fees under proposal for settlement

containing a release); see also In re Amendments to Fla. R. Civ. P. 1.442,

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345 So. 3d at 846 (striking language from former rule 1.442(c)(2)(D) that

had required a proposal for settlement to "state with particularity all

nonmonetary terms of the proposal").

By its own terms, the amendment to rule 1.442 "bec[a]me effective

July 1, 2022, at 12:01 a.m." In re Amendments to Fla. R. Civ. P. 1.442,

345 So. 3d at 846. The proposals here had been served and rejected by

non-acceptance in 2020, nearly two years prior.

"At the time that the proposals for settlement were made and

rejected, therefore, the rule amendment was not applicable." Betts v. Ace

Cash Express, Inc., 863 So. 2d 1252, 1255 (Fla. 5th DCA 2004). Rather,

"an amendment to rule 1.442, Florida Rules of Civil Procedure, [does not

apply] in an on-going case where the acceptance period of a proposal for

settlement has expired on the effective date of the amendment." Id. at

1253; cf. Love v. State, 286 So. 3d 177, 190 (Fla. 2019) (holding a

statutory amendment to Stand Your Ground hearings "is a procedural

change in the law and applies to all [such] hearings conducted on or after

the statute's effective date" but not to hearings conducted prior thereto).

Accordingly, the proposals at issue here are valid and enforceable

because they satisfied the law in effect at the time they were made.

Finally, we must address our concurring colleague's reading of our

decision in Diecidue v. Lewis, 223 So. 3d 1015 (Fla. 2d DCA 2017), as

creating a new obligation in the process for proposals for settlement. The

concurrence suggests that Diecidue obligates the offeree to promptly

notify the offeror of defects in an offer or risk waiving any such objection.

But Diecidue merely says the "better practice" is to raise

ambiguities before trial, to increase the likelihood of settlement. Id. at

1020. It does not establish any waiver of a challenge to a defective offer,

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much less simply because the offeree failed to swiftly point out the

offeror's deficient work product. Nor do the rule or statute so provide.

It is not for this court to add to the plain text of the statute or the

rule of procedure to create a new legal requirement not stated by the

legislature or the supreme court. Quite to the contrary, over a century

ago our supreme court explained: "Even where a court is convinced that

the Legislature really meant and intended something not expressed in

the phraseology of the act, it will not deem itself authorized to depart

from the plain meaning of the language which is free from ambiguity."

Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So. 2d 452,

454 (Fla. 1992) (quoting Van Pelt v. Hilliard, 78 So. 693, 694 (Fla. 1918)).

The concurrence reads a new risk of waiver for anyone who receives

a proposal for settlement. But not only has that waiver never been

recognized in any legal authority, it also injects a new pitfall in the

process that sets up the troubling result in which a court is required to

enforce an offer that was never legally valid. See State v. Atkinson, 831

So. 2d 172, 174 (Fla. 2002) ("A basic tenet of statutory construction

compels a court to interpret a statute so as to avoid a construction that

would result in unreasonable, harsh, or absurd consequences.").

A common example helps illustrate a flaw in the concurrence's

reasoning. Where an offer is financially unacceptable to the offeree and

also contains a defect such as a fatal ambiguity, the concurrence would

require the offeree to promptly notify the offeror of how to fix the

financially unacceptable offer in order to have the right to later challenge

its legal deficiency. But the law places the burden to comply with the

legal requirements to make a valid offer squarely upon the offeror; it is

not the responsibility of the offeree to assist the offeror in meeting the

offeror's own burden to make a legally compliant offer.

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Ultimately, we affirm because the trial court correctly found that

the proposals were valid and enforceable.

Affirmed.

LaROSE, J., Concurs.

MOE, J., Concurs specially.

MOE, Judge, Specially concurring.

The trial judge correctly enforced the proposal for settlement, so I

concur in the majority's decision to affirm. I write separately because my

reasons for affirming are not entirely the same. And this case implicates

areas of Florida law that, in my view, merit further discussion.

Part I explains how I concluded that the trial judge was correct.

Within this section, I discuss our precedent in Diecidue v. Lewis, 223 So.

3d 1015, 1020 (Fla. 2d DCA 2017). I also address what it means to

strictly construe a statute in derogation of common law. Part I

encourages litigants in future cases to more fulsomely brief the effect of

Diecidue in situations, like this one, where the offeree rejects a proposal

without specifying the reasons why, and only states its objections after

the offeror moves for fees at the end of the case.

Part II addresses Florida's temporal reach analysis. I concur in the

majority's assessment that, as a procedural enactment, the 2022

amendments to Florida Rule of Civil Procedure 1.442 were applicable to

cases pending as of the effective date, including this case. I also agree

that the fact that the amendments were applicable to this case does not

mean that the amendments governed these proposals, which were served

under the version of the rule and the statute in effect in 2020. I write

separately because I see value in showing how our analysis of the 2022

amendments to rule 1.442 fits into the broader picture of temporal

reach.

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In certain respects, Part II is also written to encourage litigants to,

in appropriate cases, present the supreme court opportunities to

continue the work it began in Love v. State, 286 So. 3d 177 (Fla. 2019).

In my view, Florida would be well-served if the Florida Supreme Court

brought to the analysis of enactments that are remedial and substantive

the same clarity Love provided for the analysis of procedural enactments.

I.

A. Mr. & Mrs. Stevens

The Stevenses' homeowners insurance policy with Florida

Peninsula Insurance Company was in effect from July 1, 2016, to July 1,

2017. In July 2016, they learned that the cast iron drain line under

their kitchen cabinet and floor had broken. A plumber told them that it

would be necessary to chip up their terrazzo flooring and replace the

broken cast iron pipe with PVC.

After learning this, the Stevenses waited to make their claim with

Florida Peninsula for a full year. To be clear, the problem could never

have been far from their minds. From July 2016 to July 2017 (when

they finally made their claim), water would appear from under the

cabinets and from the walls whenever it was turned on for any length of

time.

The Stevenses have an explanation for why they waited to make the

claim: a developer was thinking about making an offer on their house to

tear it down. To them, it was preferable to sell the house.

The choice to wait on the developer meant that Mr. and Mrs.

Stevens lived in their house without ready access to running water for

one full year. They kept the water main turned off during that time. If

they needed running water in the house—whether to shower, wash

dishes, brush their teeth, or anything else—they would go outside, turn

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on the water main, and then go back outside and shut it off again as

quickly as they could. If the water was running more than thirty

minutes or so, they would find water on the floor of the kitchen and

living room.

In the year that they waited, water damage became evident. They

saw paint coming off the baseboards in the living room and kitchen.

Still, they held out hope and did not make a claim with Florida

Peninsula. Instead, they dried out the baseboards with fans and painted

them.

The offer from the developer never came. It was the notification

that the developer did not wish to buy the house that led the Stevenses

to make a claim to Florida Peninsula on July 6, 2017.

Days after the Stevenses made their claim, Florida Peninsula sent

an adjuster to inspect and photograph the house. Then, on July 21,

2017, Florida Peninsula denied the claim. The policy required prompt

notice, and Florida Peninsula asserted that the Stevenses failed to

comply with this contractual post-loss obligation. Further, Florida

Peninsula contended that the Stevenses had not acted reasonably to

protect their own home from damage.

In October 2017, the Stevenses sued Florida Peninsula. They

sought prejudgment interest, attorney's fees, and costs. Florida

Peninsula answered, raising as an affirmative defense the contention that

the Stevenses had not complied with their contractual post-loss duty to

provide prompt notice.

On August 7, 2020, under section 768.79, Florida Statutes (2020)

and the version of rule 1.442 in effect at that time, Florida Peninsula

served the Stevenses with proposals for settlement in the amount of

$5,000 each. Identical in all respects except for the recipient, the

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proposals included an attached general release. Prior to the deadline to

respond to the proposals, the Stevenses stated no objections, sought no

clarification, and raised no perceived ambiguities. Neither Mrs. Stevens

nor Mr. Stevens responded to the proposals directed to them, so they

were deemed rejected.

The litigation went on for another two years before Florida

Peninsula moved for and was granted summary judgment against the

Stevenses. The basis for summary judgment was that, as a matter of

law, the Stevenses failed to give Florida Peninsula prompt notice. The

trial court also determined that there was no genuine issue of material

fact that there was no damage to the property when the water leak

occurred on July 6, 2016.

After (1) summary judgment was granted and (2) Florida Peninsula

sought an award of fees in light of the Stevenses' rejection of its

proposals for settlement, the Stevenses raised—for the first time—various

alleged "deficiencies" in the proposals and releases which, according to

the Stevenses, "rendered them unenforceable." It was at this point that

the Stevenses first complained that the proposals were ambiguous,

contained impermissible conditions, required the release of extrinsic

claims, and were not made in a good faith effort to settle the claim.

B. Section 768.79, Florida Statutes

Our analysis of the proposals for settlement in this case is governed

by section 768.79. That statute provides that "if a defendant files an

offer of judgment which is not accepted by the plaintiff within 30 days,

the defendant shall be entitled to recover reasonable costs and attorney's

fees." § 768.79(1) (emphasis added). A valid proposal must:

(a) Be in writing and state that it is being made pursuant to

this section.

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(b) Name the party making it and the party to whom it is

being made.

(c) State with particularity the amount offered to settle a

claim for punitive damages, if any.

(d) State its total amount.

§ 768.79(2). "The offer shall be construed as including all damages

which may be awarded in a final judgment." Id. (emphasis added).

If a defendant's proposal for settlement meets the requirements of

section 768.79(2), it is not timely accepted under section 768.79(4), and

the offeror timely moves for fees under section 768.79(6)—all conditions

satisfied here—then "the court shall determine" the amount to be

awarded under the process outlined in section 768.79(6)(a). Id.

(emphasis added). "[T]he defendant shall be awarded reasonable costs . .

. and attorney's fees," and "the court shall enter judgment for the

defendant against the plaintiff for the amount of the costs and fees." Id.

(emphasis added).

The statute contains only one textual allowance for discretion on

the matter of entitlement: in section 768.79(7)(a), the court has

discretion to "disallow an award of costs and attorney's fees" if the court

determines "that an offer was not made in good faith."

While the statute provides very little in the way of discretion on the

matter of entitlement, it provides broader latitude on the amount to be

awarded. When determining the reasonable amount to award, the trial

court considers enumerated factors as well as "all other relevant criteria."

§ 768.79(7)(b).

C. Rule 1.442

The Florida Supreme Court adopted rule 1.442 to establish the

procedure for invoking section 768.79. The rule is largely repetitive of

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the statute but, as the chart below reflects, the rule in effect in 2020

added various requirements to the statute in effect in 2020.

Requirement1,2 Statute Rule

Offer must be in writing and § 768.79(2)(a) 1.442(c)(1)

state that it is being made

pursuant to this section

Offer must name the party § 768.79(2)(b) 1.442(c)(2)(A)

making it and the party to

whom it is being made

Offer must state with § 768.79(2)(c) 1.442(c)(2)(E)

particularity the amount

offered to settle a claim for

punitive damages, if any

Offer must state its total § 768.79(2)(d) 1.442(c)(2)(D)

amount

Offer must state with No textual 1.442(c)(2)(D)

particularity all nonmonetary requirement in

terms of the proposal the statute

Proposal shall state that the No textual 1.442(c)(2)(B)

proposal resolves all damages requirement in

that would otherwise be the statute

awarded in a final judgment

in the action in which the

proposal is served, subject to

rule 1.442(c)(2)(F)

Proposal shall state with No textual 1.442(c)(2)(C)

particularity any relevant requirement in

conditions the statute

1 Presumably no distinction is meant to be drawn between the

statute's use of "must" and the rule's use of "shall."

2 The 2020 versions of section 768.79 and rule 1.442 are used

throughout this chart.

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Proposal shall state whether No textual 1.442(c)(2)(F)

the proposal includes requirement in

attorneys' fees and whether the statute

attorneys' fees are part of the

legal claim

Proposal shall include a No textual 1.442(c)(2)(G)

certificate of service in the requirement in

form required by Florida Rule the statute

of General Practice and

Judicial Administration 2.516

D. Application of the Statute and Rule to this Case

The reason the motion for fees was properly granted in this case is

that the offer complied with section 768.79 and rule 1.442. Because it

complied with those requirements and the record reveals no legitimate

basis to conclude that the proposals were not made in good faith, the

motion was properly granted. In theory, the analysis could end there.

However, the Stevenses argued that even if the proposals complied with

the statute and the rule, the proposals were unenforceable because the

Stevenses found the proposals ambiguous.

E. Strict Construction

The phrase "death by a thousand tiny cuts" has long been

understood to mean a series of small and seemingly insignificant things

that have an ultimately devastating impact. Some might say this is a fair

description of what has happened with proposals for settlement in

Florida. Particularly as it relates to the idea of ambiguities, it is an

extraordinary paradox that the will of the people of Florida is expressed

in a relatively simple statute that contains the word "shall" no less than

fourteen times, but cases "strictly construing" that statute have

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concluded that judges have significant discretion to deny a motion for

fees even when a proposal met each technical requirement of the statute.

It may seem surprising to have this discussion in a case in which

the trial judge properly granted the motion for fees. But the basis of my

disagreement with the majority's reasoning seemingly turns on our

divergent views of what strict construction should mean and its impact

on certain precedent addressing objections.

The question is not whether the statute and the rule must be

strictly construed. In Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849

So. 2d 276, 278 (Fla. 2003), the Florida Supreme Court held that section

768.79 and rule 1.442 "must be strictly construed because the offer of

judgment statute and rule are in derogation of the common law rule that

each party pay its own fees."

The question is what strict construction compels us to do. Strict

construction is an interpretive principle that can mean one of two things.

It can mean "that the interpreter holds tight to the fair meaning of the

law," in which case Scalia and Garner believe "the doctrine would be

sound." Antonin Scalia & Bryan Garner, Reading Law: Interpretation of

Legal Texts 355 (2012) (discussing canon 62, titled "The false notion that

words should be strictly construed"). But strict construction can also

mean a "narrow, crabbed reading of a text." Id. To be clear, Scalia and

Garner so thoroughly eviscerate strict construction as a method of

interpretation that it is astonishing that Florida has not abandoned the

idea altogether. If there are any judges in Florida who don't have a copy

of Reading Law and consult it regularly, that number is presumably

getting smaller by the year. Indeed, it might be that this part of our

precedent remains alive not because it is on such solid ground, but

because it is so confusing and inconsistent that a lower court is free to

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reject the form of strict construction that requires a "narrow, crabbed

reading" that cuts against the fair meaning of the law, in favor of the

form that "holds tight" to the fair meaning instead.

If we were to do the kind of strict construction that "holds tight to

the fair meaning" of section 768.79 and rule 1.442, then a predictable

result would be that rejection of a proposal for settlement served in

technical conformity with the rule and the statute will result in an award

of fees and costs. Use of "shall" generally conveys a sense that the judge

does not have discretion, after all. See Shall, Black's Law Dictionary

1657 (12th ed. 2024). Unless the trial court found that the proposal was

not made in "good faith," the only question would be the reasonable

amount of fees and costs to be awarded. Holding tight to the fair

meaning of the statute and the rule is also consistent with the idea that

"an offer that complies with section 768.79 and Rule 1.442 creates a

'mandatory right' to collect attorneys' fees." Anderson v. Hilton Hotels

Corp., 202 So. 3d 846, 856 (Fla. 2016).

Of course, anyone who has practiced law in Florida in the last

twenty years would roll their eyes at the idea that enforcement of a

proposal for settlement is predictable. Some might even say that the

inability to predict whether a judge will grant entitlement is the only

thing predictable about a proposal for settlement. When the offeror

moves for fees and costs under the statute, whichever party rejected the

proposal almost invariably argues that it is unenforceable because of

some ambiguity. Ambiguity is in the eye of the beholder, so this

argument can be remarkably effective in thwarting the will of the people

enacted in section 768.79.

Let's pause here. Where did we get the idea that if the trial court

finds ambiguity in the proposal, then it has discretion to deny

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entitlement to fees and costs under the statute? The text of the statute—

the same one that we are bound to strictly construe—says nothing about

ambiguity. Nor is there anything about ambiguity in the rule. Perhaps

in their quest for strict construction, judges came up with the idea. If so,

wouldn't it be ironic if strictly construing an enactment led to intended

beneficiaries who fully complied with the enactment being deprived of the

enactment's benefits? If judges were required to generate their own

business, then they scarcely could have conceived a better way to do it.

Returning to the precedent, although "the proposal under the

statute and the rule must be sufficiently clear and free of ambiguity to

allow the offeree the opportunity to fully consider the proposal" this does

not require the elimination of every ambiguity, because that "may be

impossible" and "[t]he rule does not demand the impossible." Anderson,

202 So. 3d at 852-53 (quoting State Farm Mut. Auto. Ins. Co. v. Nichols,

932 So. 2d 1067, 1079 (Fla. 2006)). It is merely necessary that the

proposal "be sufficiently clear and definite to allow the offeree to make an

informed decision without needing clarification." Id. at 855 (emphasis

added) (quoting Nichols, 932 So. 2d at 1079). After all, "[u]ltimately,

'[p]roposals for settlement are intended to end judicial labor, not create

more.' " Id. (quoting Lucas v. Calhoun, 813 So. 2d 971, 973 (Fla. 2d DCA

2002)). The purpose of the rule and the statute is to "promote prompt

and good-faith efforts to settle claims." Id. To this end, the Florida

Supreme Court has made clear that some ambiguity is expected and

clearly permissible; what is not permissible is judicial nitpicking and

after the fact quests for ambiguity. Id. at 853 (citing Carey–All Transp.,

Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008)).

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F. Diecidue v. Lewis

Lower courts are bound by precedent of higher courts. Even if it

concluded that a higher court strictly construing a statute somehow

rewrote the statute in the process, a district court cannot disregard that

precedent. But a lower court that is bound to follow precedent is not

completely without agency. In Diecidue, we appropriately recognized and

disapproved of the exact litigation behavior the ambiguity escape hatch

spawned: a litigant initially rejected a proposal for settlement, the

outcome of the litigation was unfavorable, and then the litigant made

"post hoc attempts to conjure up ambiguities in proposals for settlement

to get a second bite at the apple." 223 So. 3d at 1019-20.

We were sufficiently concerned about this practice that three

judges of this court agreed to take up an entire paragraph of a fairly brief

opinion to say that we saw the case as

a vehicle to emphasize that it is better practice for an offeree

to raise any ambiguities in proposals for settlement with the

offeror before trial. This will increase the probability that any

subsequent offers may better reflect the intent of the parties

and better ensure that courts are not unnecessarily injected

into disputes that can otherwise be amicably resolved.

Id. at 1020. In his concurrence, Judge Casanueva "fully concur[red] in

the majority opinion" but wrote separately to "discuss a concern caused

by the proposal for settlement utilized in this manner and how such a

proposal for settlement can be used in other matters for the purpose of

attaining a tactical advantage rather than for the recognized purpose of

ending litigation . . ." Id. (Casanueva, J., concurring).

What merciless criticism met Diecidue when the case made its way

to the supreme court? None. The supreme court cited the Diecidue

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concurrence when it amended Rule 1.442. In re Amendments To Fla. R.

of Civ. P. 1.442, 345 So. 3d at 845.

I believe the majority agrees that Diecidue remains good law in the

Second District. And other precedent from this court says that "a three-

judge panel of a district court of appeal is not at liberty to overrule or

recede from a prior panel's controlling decision on the same point of law"

without first seeking en banc consideration from the entire court. State

v. Crose, 378 So. 3d 1217, 1243-44 (Fla. 2d DCA 2024) (emphasis added)

(quoting Wood v. Fraser, 677 So. 2d 15, 18 (Fla. 2d DCA 1996)).

Yet it is the meaning that we believe should be given to Diecidue

that divides us. The majority believes that Diecidue has little to no

application here; I disagree.

Each of the following statements are, in my view, not reasonably in

doubt: (1) we are bound to strictly construe the statute and the rule; (2) a

reasonable meaning of strict construction is that we must "hold tight to

the fair meaning of the law"; (3) neither the statute nor the rule gives the

court discretion to deny a motion for fees on the basis that the proposal

was ambiguous; (4) the purpose of the rule and the statute is to "promote

prompt and good-faith efforts to settle claims"; and (5) if an offeree

believes a proposal is ambiguous, then "the better practice" is for the

offeree to raise a timely objection.

Here, the Stevenses rejected the proposals without making any

objection about ambiguities in them. Diecidue was good law at the time,

as it remains today. It seems fair, then, to infer that the reason the

Stevenses rejected the proposals did not really relate to the ambiguity

they argued to the trial court after they lost on summary judgment. All

of this weighs in favor of affirming the trial court's conclusion that the

proposals were not ambiguous.

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The majority seems hesitant to say that this is the right application

of Diecidue. As far as I can tell, it is the majority's view that when we

articulated the "better practice" of raising objections, we simply meant

that this is what a good lawyer would do. But even if "better practice" is

merely a rule of etiquette (and I do not read it that way), even Miss

Manners would agree that if you ignore a rule of etiquette then some

people are going to draw negative inferences about you. See also Richard

Duffy, Introduction: Manners and Morals, in Emily Post, Etiquette: The

Blue Book of Social Usage ix-xii (Funk & Wagnalls 1927) ("[T]he kinship

between conduct that keeps us within the law and conduct that makes

civilized life worthy to be called such, deserves to be noted with

emphasis.").

I am also troubled by the idea that the "better practices" language

of Diecidue means nothing here because it is dicta. To be sure, it is

dicta. "Any statement of law in a judicial opinion that is not a holding is

dictum." Pedroza v. State, 291 So. 3d 541, 547 (Fla. 2020). We don't

treat dicta as a holding, but that doesn't mean dicta is worthless. See

Bryan Garner et al., The Law of Judicial Precedent 603 (2016) (discussing

the predictive value of dicta in various contexts); see also Harris v. Sentry

Title Co., 806 F.2d 1278, 1280 n.1 (5th Cir. 1987) (courts "often address[]

issues for the guidance of the parties and the [lower courts] on remand.

It cannot be said that such considered statements should be dismissed

as dictum simply because the Court was not absolutely required to raise

and address such an issue."); Cole Energy Dev. Co. v. Ingersoll-Rand Co.,

8 F.3d 607, 609 (7th Cir. 1993) (noting that "explicit directives by that

court to the lower court concerning proceedings on remand are not dicta"

even when the court refers to its directives as "useful comments" or the

like and judges are not free to ignore them); Sonic-Calabasas A, Inc. v.

17

Moreno, 311 P.3d 184, 212 (Cal. 2013) ("Statements by appellate courts

'responsive to the issues raised on appeal and . . . intended to guide the

parties and the trial court in resolving the matter following . . . remand'

are not dicta." (quoting Garfield Med. Ctr. V. Belshe, 80 Cal.Rptr.2d 527,

531 (1998))).

I also disagree that giving logical effect to Diecidue somehow keeps

us from, in a future case, finding ambiguity in the absence of a timely-

raised objection. Diecidue set an "if you see something, say something"

expectation because objections to proposals for settlement should be

articulated while there is time for the offeror to address the objection by

serving a new proposal. Sometimes the failure to timely object will

undermine the appellant's argument that the proposal was rejected

because it was ambiguous, as I think it did here. In other cases, the

proposal might be so obviously ambiguous to the court that the failure to

say so can be excused. In all of this, an appellant has the burden to

demonstrate error on appeal. Applegate v. Barnett Bank of Tallahassee,

377 So. 2d 1150, 1152 (Fla. 1979).

G. Statutes in Derogation of the Common Law

Where the majority is not ready to give Diecidue the effect that I

propose, I am concerned that its reasoning may be rooted in the idea that

it is wrong to in any way imply that an offeree should behave with a

degree of good faith because section 768.79 is "in derogation of the

common law that ordinarily requires each party to pay its own attorneys'

fees." Anderson, 202 So. 3d at 852. If true, this case highlights why it

might be worthwhile for the Florida Supreme Court to reconsider its

precedent about "statutes in derogation of the common law."

As expressed through their elected representatives, it seems very

obvious that Floridians believe more must be done to promote prompt

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resolution of civil lawsuits. Since at least the enactment of the proposal

for settlement statute in the 1980s, there has been a persistent

legislative effort towards these ends. Yet an ordinary Floridian who reads

the opinions generated since that time might argue that the judicial

branch sometimes gets in the way.

On the one hand, courts have acknowledged that section 768.79

was meant to "encourage [the] parties to settle . . . without going to trial."

Aspen v. Bayless, 564 So. 2d 1081, 1083 (Fla. 1990). In the discharge of

its constitutional duty to make rules for practice and procedure in the

courts, the Florida Supreme Court has been clear that the objectives of

our branch are aligned with the will of the people. For example, Florida's

first rule of civil procedure, rule 1.010, directs that our rules of civil

procedure must be construed in a manner that will "secure the just,

speedy and inexpensive determination of every action." Fla. R. Civ. P.

1.010; see also Winston E. Arnow & Clarence E. Brown, Florida's 1954

Rules of Civil Procedure, 7 Fla. L. Rev. 125, 129 (1954).

Yet it seems as though the only rule in the rules of civil procedure

that seems to be exempted from rule 1.010 is rule 1.442. Doesn't rule

1.442 exist for the same basic reason as rule 1.010? Willis Shaw

explains the reasons we do things this way. 849 So. 2d at 276. In Willis

Shaw, the Florida Supreme Court held that section 768.79 and rule

1.442—both enacted to promote speedy and efficient resolution of

disputes, just like rule 1.010—"must be strictly construed because the

offer of judgment statute and rule are in derogation of the common law

rule that each party pay its own fees." Id. at 276.

This idea that Willis Shaw created a unique rule of construction for

rule 1.442 is nothing new. See Lauren Rehm, A Proposal for Settling the

Interpretation of Florida's Proposals for Settlement, 64 Fla. L. Rev. 1811,

19

1831 (2012). But as others have recognized, we ought to be concerned

with the idea that we have imposed, judicially, a rule of construction

specific to rule 1.442 that stacks the deck against the will of the people

as expressed by the Florida Legislature. Kuhajda v. Borden Dairy Co. of

Ala., 202 So. 3d 391, 396 (Fla. 2016) ("A procedural rule should not be

strictly construed to defeat a statute it is designed to implement.");

Campbell v. Goldman, 959 So. 2d 223, 228 (Fla. 2007) ("No confusion

exists regarding the plain meaning of the rule's language. Moreover, if

this court rule was ambiguous, the standard of construction stated in

rule 1.010 would apply, not the derogation canon.") (Bell, J., concurring

in result only).

Even though Florida adopted statutorily the common law of

England through July 4, 1776, it was adopted only to the extent that it

was "not inconsistent with the Constitution and laws of the United States

and acts of the Legislature of this state." Fla. Stat. § 2.01 (2025). This is

no support, then, for the conclusion that the legislature prefers the work

of this branch (or the pre-July 4, 1776, common law of England) over the

will of the people as enacted by the Florida Legislature and signed into

law by the Governor of Florida.

The idea that statutes in derogation of the common law should be

strictly construed reflects a sovereign-displacement concern far more

reasonable in a pre-American legal order in which "the monarch was the

de jure and de facto head of state, and statutes were regarded as

derogating from the common law." Scalia & Garner, supra, at 349.

Scalia and Garner consider this particular canon "a relic of the courts'

historical hostility to the emergence of statutory law" and opine that

"[t]he better view is that statutes will not be interpreted as changing the

common law unless they effect the change with clarity" because "[t]here

20

is no more reason to reject a fair reading that changes the common law

than there is to reject a fair reading that repeals a prior statute." Id. at

318.

Some have described the rule that a statute in derogation of the

common law must be strictly construed as "nothing other than a judicial

preference for common law and a belief in the moral superiority of that

law," at least in certain contexts. Barbara Page, Statutes in Derogation of

the Common Law: The Canon as an Analytical Tool, 1956 Wis. L. Rev. 78,

106 (1956). If true, one wonders how we defend "a belief in the

superiority of the common law," when such a belief is seemingly

"irrelevant and in direct contradiction to the court's avowed purpose of

keeping to its proper role in the separation of powers." Id. at 109. In

particular, "[t]he use of a canon of construction to enforce a particular

policy" is most objectionable "where it mask[s] the real reasons for

judicial action," since "such technique of decision derogated from that

clearcut responsibility for decision which is itself a basic requirement of

sound government." Id.

"It can with reason be urged that any rule of interpretation in the

nature of a presumption should have a logical core, that it should either

be well grounded in actual experience or rested upon sufficiently

compelling considerations of policy." Jefferson B. Fordham & J. Russell

Leach, Interpretation of Statutes in Derogation of the Common Law, 3

Vanderbilt L. Rev. 438, 442 (1950). Yet the known defenses to the

derogation canon are almost universally hostile to the separation of

powers protections secured in the Florida Constitution. Those defenses,

which include the idea that "the common law is the perfection of human

reason and is definitely superior to statute law" and that the common

law is "a better quality of law than statute law" have not in any obvious

21

sense been squared with the idea that statutes express the will of the

people and that the people are the ultimate sovereign. Id. at 442.

While some have said that the canon is "an essential guiding rule"

because "without it the continuity of legal development would be gravely

imperiled; and it becomes the more necessary when we remember how

few statutes are wholly innovations and how many . . . are extensions or

modifications of existing Common Law rules," others counter that "[t]his

is a type of proposition the truth of which would be very difficult to

demonstrate" and "[o]ne wonders why it is that the value of continuity

could not be preserved by interpreting a statute in the light of its

common law context without, at the same time, insisting upon some sort

of predisposition against changes in the common law." Id. at 442-43

(quoting Carleton Allen, Law in the Making 379 (4th ed. 1946)).

Another defense for the canon is that some state constitutions

contain provisions that "no law may be revived or amended unless the

new act contains the entire act to be revived or the section or sections

amended." Id. at 443. If this is what the supreme court intended to say

in Willis Shaw, someone should point us back to what part of the Florida

Constitution justifies the conclusion.

Without a constitutional root, even the use of "derogation" suggests

a sovereign-displacement concern inconsistent with our constitutional

order. "Derogation," when used as a noun, means a "partial repeal" or "a

taking away, lessening, or detraction, especially of power, reputation,

and value." Derogation, Webster's Third New International Unabridged

Dictionary 609 (2002). In Florida, the sovereign is the people of Florida.

Our sovereign speaks through its representatives in the legislature. If by

passage of a statute through its elected representatives the sovereign

chooses to enter a space previously occupied exclusively by the judicial

22

branch, is it appropriate for the judicial branch to scramble to preserve

the maximum remainder of our influence? Might we say that the very

enactment of a statute that "repeals, takes away, lessens, or detracts

from" the common law suggests that (1) the people want things to change

from the common law and (2) their ability to be governed as they choose

is what is most vital to preserve, as a matter of constitutional law?

Section 768.79 and its repeated amendments reflect that Floridians

are done with the idea of an absolute rule that requires each party to

bear its own fees and costs at the end of litigation. Since ambiguity

objections seem to be entirely a creation of this branch, it does not seem

necessary for the legislature to amend the statute again before we can

say that an offeree ought to raise ambiguity objections when there is still

time for an offeror to amend the proposal.

II.

Unlike the first issue, I see no daylight between me and the

majority on whether the 2022 amendments to rule 1.442 applied to the

proposals in this case. The amendments did not apply because although

a new procedural enactment is applicable to a pending case, the posture

of the case did not permit it here.

Though we agree that the 2022 amendments did not apply, and we

also agree on the reasons, I write separately on this issue for a specific

reason. The temporal reach of enactments is an exceedingly important

field of Florida law. I wholeheartedly agree with the assessment that

"predictability in application of newly amended rules and statutes

remains elusive—if not imprecise under our current precedent." Fed.

Express Corp. v. Sabbah, 357 So. 3d 1283, 1288 (Fla. 3d DCA 2023)

(Gordo, J., concurring in result only). I write this expressly to encourage

the Florida Supreme Court to address temporal reach more

23

comprehensively and to encourage briefing on these issues in

appropriate cases.

Here, oral argument revealed the extent of the parties' uncertainty

about the temporal reach of an amendment to a rule of civil procedure.

In my view, Love, 286 So. 3d at 184, squarely resolved the issue. The

Florida Rules of Civil Procedure are, of course, procedural. A new or

amended procedural enactment applies to pending cases, if the posture

of the case permits it. Id. The problem here was that the posture of the

case did not permit application of the amended rule governing the service

of proposals. The reason the posture did not permit it is that the

proposals had already been served when the amendment took effect.

To apply the 2022 amendments to rule 1.442 to already-served

proposals would have disturbed a case event that was already completed.

Application of a new or amended procedural enactment in a way that

requires the re-doing of the case event governed by the enactment is the

essence of a retroactive application. Hypothetically, if another set of

proposals had been served after the amendment took effect, then that set

of proposals would have been governed by the amended rule.

In the "confusing and often unintelligible" precedent regarding

temporal reach, Fed. Express Corp., 357 So. 3d at 1286 (Gordo, J.,

concurring in result only), some confusion may be attributable to the

narrow tailoring of opinions. The net effect of writing narrowly on this

topic is that the overall framework too easily remains hidden. I try not to

perpetuate this here.

A. Temporal Reach Framework in Florida

When the law changes, a dispute frequently arises over whether the

change in the law applies to a given case. A change in the law can arise

from (1) a statutory change, (2) a change to a rule of practice and

24

procedure, or (3) a decisional change. The term "enactment" covers

categories (1) and (2) only. This discussion is confined to changes in the

law that are statutory or rules of practice and procedure. Because I see

no reason to do it, I draw no distinction between those two categories. I

also draw no distinction between new and amended enactments. The

term "temporal reach" refers to the inquiry into whether a change in the

law applies to a given case.

The temporal reach of an enactment turns on the nature of the

enactment. See, e.g., Bionetics v. Kenniasty, 69 So. 3d 943, 948 (Fla.

2011); Love, 289 So. 3d at 180; Smiley v. State, 966 So. 2d 330, 334 (Fla.

2007). So the first step in the analysis requires a decision about whether

the enactment is substantive, procedural, or remedial.

1. Procedural

Procedural enactments represent the easy part of the temporal

reach analysis. This is because the supreme court fairly recently

explained the temporal reach of procedural enactments in Love v. State.

If a change in the law is procedural, it is applicable to cases pending on

the effective date if the posture of the case permits it. Love, 286 So. 3d

at 180. Applying a procedural change to a pending case is not a

"retroactive" application unless applying the change would require doing

over an already-completed case event governed by the rule. Id. As noted

previously, this case presented a clean application of Love.

2. Substantive

The analysis becomes more complex with substantive enactments.

If an enactment is substantive, there are additional steps. First, the

court must look for a clear expression in the enactment that the

legislature intended for the enactment be applied retroactively. Bionetics,

25

69 So. 3d at 948. If there is no clear expression of an intent that the

enactment apply retroactively, then the analysis ends there.

If the legislature clearly expressed an intent that a substantive

enactment should be applied retroactively, then the last step is to ask

"whether retroactive application is constitutionally permissible."

Bionetics, 69 So. 3d at 948. So long as it does not "offend due process"

because it is "particularly 'harsh and oppressive,' " retroactive legislation

is lawful. Pension Benefit Guar. Corp. v. R.A. Gray & Co., 467 U.S. 711,

733 (1984).

Temporal reach is an endeavor that demands careful attention to

definitions. An enactment is defined as substantive if it "defines, creates,

or regulates rights—'those existing for their own sake and constituting

the normal legal order of society, i.e., the rights of life, liberty, property,

and reputation.' " DeLisle v. Crane Co., 258 So. 3d 1219, 1224 (Fla.

2018) (citing Allen v. Butterworth, 756 So. 2d 52, 59 (Fla. 2000)).

Although certain aspects of Florida's temporal reach precedent

differ from the federal precedent, the meaning of retroactivity in Florida is

the same as it is on the federal side. Love, 286 So. 3d at 186-87 (citing

Landgraf v. USI Film Prods., 511 U.S. 244 (1997)). Under that federal

standard, a retroactive application is defined as one that "impair[s] rights

a party possessed when he acted, increase[s] a party's liability for past

conduct, or impose[s] new duties with respect to transactions already

completed." Landgraf, 511 U.S. at 280. Retroactive legislation is often

enacted in an effort to "readjust[] rights and burdens imposed in the

past" or "impose a new duty or liability based on past acts." Pension

Benefit Guar. Corp., 467 U.S. at 729-30.

Careful attention to definitions can raise important questions. For

example, a side-by-side examination of the existing definitions of

26

substantive and retroactive seemingly exposes a potential source of

confusion about the retroactive application of substantive rights.

Definition of Substantive Definition of Retroactive

Defines rights Impairs rights

Creates rights Increases liability

Regulates rights Imposes new duties

Consider Menendez v. Progressive Express Ins. Co., 35 So. 3d 873

(Fla. 2010). There, the Florida Supreme Court (1) found a change to a

statutory presuit notice provision to be substantive, (2) concluded that

the legislature intended for the statutory change to apply retroactively,

but then (3) refused to apply the statute because it had the

characteristics of a substantive enactment. See id. at 877 ("In this case,

we conclude that the Legislature intended for the statutory presuit notice

provision to be applied retroactively. However, even when the Legislature

has expressly stated that a statute will have retroactive application, this

Court will reject such an application if the statute impairs a vested right,

creates a new obligation, or imposes a new penalty."). Compare DeLisle,

258 So. 3d at 1224 (describing an enactment as substantive if it "defines,

creates, or regulates rights"), with Menendez, 35 So. 3d at 877. One

could read Menendez and conclude that the supreme court did not

believe it was constitutional to apply a substantive enactment

retroactively because it was substantive.

State Farm v. LaForet, 658 So. 2d 55 (Fla. 1995), is interesting to

consider through the same lens. In LaForet, the Florida Supreme Court

considered a newly enacted statute that altered the damages available in

a bad faith action brought under section 624.155, Florida Statutes. Id. at

61. The Court found that the statute was substantive in nature and that

27

the legislature expressly stated that the enactment was meant to be

applied retroactively. Id. at 61. Then it declined to give the statute

retroactive application because the effect of the statute was to create a

new penalty for insurance companies acting in bad faith. Id. at 61-62.

Like Menendez, one could read LaForet and conclude that a statute

cannot not be applied retroactively if it meets the definition of a

substantive enactment. LaForet adds further complexity to the analysis

because, with no discussion about how the enactment was

constitutionally offensive, the court disapproved of two lower court cases

that had applied the statute retroactively. Id. at 62.

While at first blush Metropolitan Dade County v. Chase Housing

Corp., 737 So. 2d 494 (Fla. 1999), suggests that it is possible for a

substantive enactment to be applied retroactively, the Court's reasoning

limits its utility for that purpose. There, the Florida Supreme Court

found that (1) the change in the law was substantive, (2) the legislature

clearly expressed an intent that the change be applied retroactively, and

(3) retroactive application did not offend the constitution. Id. at 505.

The problem with looking to Metropolitan Dade as the answer key is that

Metropolitan Dade turned on the fact that the defendant was a unit of

local government, and local governments are a child of the legislature.

Id. at 505 ("[W]e emphasize that a different result might well be reached if

these immunity provisions were applied to abrogate the cause of action of

a private plaintiff rather than a government entity's cause of action.").

3. Remedial

If the enactment is remedial, then it is to be applied to pending

cases "whenever possible." A remedial enactment presumptively enjoys a

broader temporal reach than procedural and substantive statutes—

remedial statutes "are to be applied retrospectively and are to be applied

28

to pending cases." See, e.g., Love, 286 So. 3d at 187 (emphasis added)

(quoting Alamo Rent-a-Car, Inc. v. Mancusi, 632 So. 2d 1352, 1358 (Fla.

1994)); Smiley v. State, 966 So. 2d 330, 334 (Fla. 2007) ("[T]he

'presumption in favor of prospective application generally does not apply

to "remedial" legislation; rather, whenever possible, such legislation

should be applied to pending cases in order to fully effectuate the

legislation's intended purpose.'") (quoting Arrow Air, Inc. v. Walsh, 645

So. 2d 422, 424 (Fla. 1994)).

Given the broad reach to which remedial enactments are

presumptively entitled, it is unfortunate that it is hard to pinpoint what

it means for an enactment to be remedial. In City of Lakeland v.

Cantinella, 129 So. 2d 133, 137 (Fla. 1961), the Florida Supreme Court

said that "[r]emedial statutes or statutes relating to remedies or modes of

procedure, which do not create new or take away vested rights, but only

operate in furtherance of the remedy or confirmation of rights already

existing, do not come within the legal conception of a retrospective law,

or the general rule against retrospective operation of statutes." Id. at

137.

Cantinella's definition of "remedial" raises more questions than it

answers. Indeed, Smiley suggests that Cantinella's discussion of a

remedial statute was not a definition at all. Smiley suggests that this

language from Cantinella should be read not as a definition, but as an

instruction about how to apply remedial statutes. Smiley, 966 So. 2d at

334 ("The rule for procedural/remedial changes, in contrast to the

presumption against retroactive application for substantive changes, is

as follows: 'Remedial statutes or statutes relating to remedies or modes of

procedure, which do not create new or take away vested rights, but only

operate in furtherance of the remedy or confirmation of rights already

29

existing, do not come within the legal conception of a retrospective law,

or the general rule against retrospective operation of statutes.' " (quoting

Cantinella, 129 So. 2d at 136)).

Smiley itself did not offer its own definition, unfortunately.

Moreover, Smiley complicated the work of defining a remedial enactment

because it seems to equate remedial and substantive statutes. Id.

("Finally, a statute that achieves a 'remedial purpose by creating

substantive new rights or imposing new legal burdens' is treated as a

substantive change in the law." (quoting Arrow Air, Inc., 645 So. 2d at

424)).

This leaves remedial enactments as the great frontier of temporal

reach. In an appropriate case, someone should press for an explanation

of what it means to be remedial. The definition of "remedial" in Black's

Law Dictionary seems like a helpful place to start:

1. Affording or providing a remedy; providing the means of

obtaining redress <a remedial action>. 2. Intended to

correct, remove, or lessen a wrong, fault or defect <a

remedial statute>. 3. Of, relating to, or involving a means

of enforcing an existing substantive right <a remedial

right>.

Remedial, Black's Law Dictionary 1550 (12th ed. 2024). Arguably, the

first and third definitions are consistent with how Florida defines a

substantive enactment. DeLisle, 258 So. 3d at 1224 (noting an

enactment is considered substantive if it "defines, creates, or regulates

rights—'those existing for their own sake and constituting the normal

legal order of society, i.e., the rights of life, liberty, property, and

reputation' " (quoting In re Fla. Rules of Criminal Procedure, 272 So. 2d

65, 65 (Fla. 1972) (Adkins, J., concurring))); see also id. (recognizing that

"[g]enerally the Legislature has the power to enact substantive law while

30

this Court has the power to enact procedural law" (citing Allen v.

Butterworth, 756 So. 2d 52, 59 (Fla. 2000)). The precedent directs such a

different analysis of the temporal reach of substantive and remedial

enactments that is very hard to believe that, properly defined,

substantive and remedial mean the same thing.

If substantive and remedial are not synonymous (a conclusion

compelled by examination of the broader analytical framework) then this

leaves the remaining definition of remedial as the most accurate one.

That definition of remedial—"intended to correct, remove, or lessen a

wrong, fault or defect"—bears a distinct meaning focused not on what the

enactment is but what it is intended to do. This idea that remedial

means "intended to fix something" also aligns with the direction that

remedial enactments (1) ought to be applied both retroactively and to

pending cases and (2) could have qualities that were either substantive

or procedural.

Think of this definition of remedial in the context of the change in

the proposal for settlement rule. The Florida Supreme Court identified

something that needed to be fixed:

The amendments are intended to align rule 1.442 with the

substantive elements of Florida's settlement proposal

statutes. Section 768.79, Florida Statutes (2021), does not

provide for the inclusion of nonmonetary terms in a proposal

for settlement. . . .

Accordingly, to be consistent with the substantive elements of

the various settlement proposal statutes, we amend Florida

Rule of Civil Procedure 1.442.

In re Amends. To Fla. Rules of Civ. Proc. 1.442, 345 So. 3d 845, 845-46

(Fla. 2022). Love makes clear that a change in procedure could, in

theory, apply retroactively, if the Florida Supreme Court chose to direct

31

it. Love, 286 So. 3d at 188 (noting that rules of procedure are

prospective "unless specifically provided otherwise" (quoting Perlstein v.

King, 610 So. 2d 445, 446 (Fla. 1992))). With the amendments to rule

1.442, the need to correct the rule was not so pressing that, as a matter

of branch policy, the Florida Supreme Court believed it should be applied

retroactively. But what if the court had concluded otherwise and both (1)

identified what the amendments were intended to fix and (2) directed

that the amendments apply retroactively? I don't mean to suggest that it

should have done that with rule 1.442. I merely mean to suggest that

this could be what the Florida Supreme Court was saying in Love about

the prospect that a rule change could, in theory, be "applied

retrospectively and . . . to pending cases." See, e.g., Love, 286 So. 3d at

181.

This definition of remedial dovetails with Smiley's direction that

remedial enactments should be applied "whenever possible." See Smiley,

966 So. 2d at 334; Arrow Air, 645 So. 2d at 424 ("[T]he presumption in

favor of prospective application generally does not apply to 'remedial'

legislation; rather, whenever possible, such legislation should be applied

to pending cases to fully effectuate the legislation's intended purpose.").

Moreover, if "intended to correct, remove, or lessen a wrong, fault or

defect" is the true definition of remedial then this may explain how the

constitution would permit a substantive statute to be applied

retroactively.

Legislation is an expression of the will of the people. If the people

identify a flaw or defect in the substantive law and the legislature enacts

a statute meant to fix that flaw, it makes sense that the fix ought to be

applied "whenever possible" and that due process would not necessarily

be violated by the retroactive application of a substantive change made

32

for a remedial purpose. The measure of process that is due appropriately

considers the nature of the rights in play. See Thomas M. Cooley, A

Treatise on the Constitutional Limitations Which Rest Upon the Legislative

Power of the States of the American Union 256 (1868) ("Due process of law

in each particular case means, such an exertion of the powers of

government as the settled maxims of law sanction, and under such

safeguards for the protection of individual rights as those maxims

prescribe for the class of cases to which the one in question belongs.");

see also Arrow Air, 645 So. 2d at 424 ("[T]he presumption in favor of

prospective application generally does not apply to 'remedial' legislation;

rather, whenever possible, such legislation should be applied to pending

cases to fully effectuate the legislation's intended purpose.").

Return now to the review of cases, above, involving substantive

enactments. Both Menendez and LaForet considered (1) substantive

enactments that arguably reflected the legislature’s policy conclusion

that the pre-enactment substantive law was flawed and in need of

correction, (2) a legislative expression of intent that the enactments be

applied retroactively, and (3) a decision by the supreme court that

retroactive application was constitutionally impermissible. Consider how

the analysis might have been different if the term remedial had been

clearly defined as "intended to correct, remove, or lessen a wrong, fault or

defect." Even though the enactments had substantive characteristics, if

the court had found that the enactments reflected the legislature's

intention to correct, remove, or lessen a wrong, fault, or defect in the pre-

enactment order, perhaps those enactments would have been labeled

remedial rather than substantive. If so, then perhaps the court would

have permitted the retroactive application. Imagine further that the

party seeking retroactive application had argued that there were

33

substantive rights in play on both sides of the case. Arguably, civil

litigation involves constitutionally protected property rights on both

sides. The founders of America "insist[ed] that the right to property

includes not only possession of what one has but also acquisition of what

one needs." Thomas G. West, The Political Theory of the American

Founding 317 (Cambridge University Press 2017); see also art. I, § 2, Fla.

Const. (protecting as Basic rights) both the right to acquire property and

the right to possess and protect it). The point is that temporal reach

cases frequently focus only on the rights of one party; however, the

definition of "remedial" would be particularly important to understand in

a future case where a statute reflected a policy judgment about

competing rights: not just the property interests of the one bringing suit,

but also the property interests of the one defending its assets against a

claimant. If more is not done to define what it means to be remedial, one

can imagine how the judicial branch could inadvertently wade into the

policy realm.

If what it means for a statute to be "remedial" is that (1) it reflects a

policy judgment that a wrong, fault, or defect in the law must be

corrected, removed, or lessened, and (2) the legislature expresses an

intent that the fix be applied retroactively, then an argument could be

made that, for separation of powers reasons, the court should defer to

the legislature's direction to apply a remedial statute retroactively, even if

it impedes a substantive right.

III.

Giving effect to the will of the people shouldn't be harder than

nailing Jell-O to the wall. Florida's precedent on proposals for settlement

and temporal reach suggests that, at times, it is. Our constitutional

order is intended to protect the people's right to be governed as they

34

choose. Where an enactment reflects the will of the people, this branch

becomes a threat to self-government if confusion in the law means that

the people’s will is not given effect.

In this case, the trial judge correctly enforced the proposals for

settlement. When the proposals were served, they met the requirements

of section 768.79 and rule 1.442 in effect at that time. The proposals

were not accepted within 30 days and the trial judge made no finding

that the proposals were not made in good faith.

Because Diecidue was good law at the time the proposals were

served, in my view the Stevenses' failure to timely articulate objections to

the proposals undercut their subsequent arguments about those

objections. Once we clarified the better practice in Diecidue, litigants

who chose not to follow that better practice did so at their own risk. As a

simple matter of respect for our own precedent, I see no reason to tiptoe

around that.

The majority does not really explain what Diecidue's "better

practice" language means, in a practical sense. Lawyers throughout the

Second District must wait for this issue to be more fulsomely raised in

another case and then resolved by this court. Those who must counsel

recipients of proposals for settlement in the interim might consider that

even if Diecidue offered nothing more than an opinion about good

etiquette, we all know that negative inferences are often drawn about

those who ignore good etiquette.

Opinion subject to revision prior to official publication.

35