THE ANDERSEN FIRM, PC v. SCOTT A. BROWN

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

THE ANDERSEN FIRM, P.C.,

Appellant,

v.

SCOTT A. BROWN,

Appellee.

No. 4D20-2067

[November 10, 2021]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit,

Broward County; Keathan Frink, Judge; L.T. Case No.

062014CA006423AXXXCE.

Donald H. Benson of Bradham, Benson, Lindley, Blevins, Bayliss &

Wyatt of Florida East Coast, P.L.L.C., Fort Lauderdale, for appellant.

Scott A. Brown, Fort Lauderdale, pro se.

LEVINE, J.

The Andersen Firm, P.C. (“Andersen”) appeals a final order denying its

motion for entitlement to attorney’s fees and costs. We affirm the trial

court’s finding that Andersen’s proposal for settlement was ambiguous

and did not support an attorney’s fees award under the offer of judgment

statute. However, we find the trial court erred by denying Andersen’s

motion for costs. Therefore, we reverse and remand for an evidentiary

hearing on entitlement to costs.

Scott Brown (“Brown”) was in a work-related automobile accident while

employed with Andersen. He filed a workers’ compensation claim and

began receiving benefits from Andersen’s workers’ compensation insurer,

The Travelers Indemnity Co. (“Travelers”). While still receiving workers’

compensation benefits, Brown was terminated from his employment with

Andersen. Shortly thereafter, Brown stopped receiving his workers’

compensation benefits from Travelers. Believing that he was terminated

because of his outstanding workers’ compensation claim, Brown filed a

complaint against Andersen for wrongful termination. During the

pendency of the wrongful termination litigation, Brown filed a workers’

compensation petition for benefits against Travelers.

Andersen served Brown with a proposal for settlement under section

768.79, Florida Statutes (2020), and Florida Rule of Civil Procedure 1.442

for the pending wrongful termination suit. The proposal required Brown

to execute an attached release “in favor of the Defendant and Defendant’s

insurer.” The release failed to identify the names of both the firm and the

insurer to be released, leaving blank spots where the names were meant

to be. The release required Brown to release all claims “arising out of the

allegations and issues of the Plaintiff’s discharge from The Andersen Firm,

which is the subject matter of the litigation known as Brown v. The

Andersen Firm, filed in the 17th Judicial Circuit in and for Broward

County, under Case No. CACE 14-006423 (12).” Further, the release

required Brown to acknowledge “that any and all . . . workmen’s

compensation liens . . . related to or arising out of this subject matter have

been paid and satisfied . . . .” Brown did not accept the proposal, fearing

that doing so would extinguish not only his wrongful termination claim

but also his outstanding workers’ compensation petition against Travelers.

Final judgment on the wrongful termination claim was rendered in

favor of Andersen. Following judgment, Andersen timely moved for

entitlement to attorney’s fees and costs pursuant to the offer of judgment

statute and the statute providing for the recovery of costs. Brown opposed

the motion based on the ambiguities present in the proposal. Andersen

argued that the proposal was not meant to release Travelers, but was

meant to release a different insurer. Brown alleged that he was not aware

Andersen had an additional insurer.

A hearing was held on Andersen’s motion for entitlement to fees and

costs. The trial judge ultimately found that Andersen was not entitled to

fees and costs under section 768.79 because the proposal’s failure to

identify the insurer created an ambiguity within the proposal. Entitlement

to costs and taxation was not discussed at the hearing. The final order

denied Andersen’s motion for entitlement to costs and fees in full. This

appeal ensues.

We review ambiguities in proposals for settlement de novo. Land & Sea

Petroleum, Inc. v. Bus. Specialists, Inc., 53 So. 3d 348, 353 (Fla. 4th DCA

2011). “We review fee and cost awards under a mixed standard of review.

Factual findings must be supported by competent, substantial evidence,

while legal findings are reviewed de novo.” Webber for Keitel v. D’Agostino,

251 So. 3d 188, 191 (Fla. 4th DCA 2018) (citations, internal quotation

marks, and brackets omitted).

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When a plaintiff has multiple outstanding claims, “settlement proposals

must clarify which of an offeree’s outstanding claims against the offeror

will be extinguished by any proposed release.” State Farm Mut. Auto. Ins.

Co. v. Nichols, 932 So. 2d 1067, 1080 (Fla. 2006); see also Nichols v. State

Farm Mut., 851 So. 2d 742, 746 (Fla. 5th DCA 2003) (“Rules 1.442(c)(2)(C)

and (D), Florida Rules of Civil Procedure, provide that relevant conditions

and all nonmonetary terms of the offer be stated with particularity.”).

Andersen argues that the proposal was unambiguous because it only

related to claims arising out of the instant litigation. However, because

Brown alleged that he believed that his termination was due to his workers’

compensation claim, he could reasonably believe that this was a claim

“related to or arising out of this subject matter.” See Palm Beach Polo

Holdings, Inc. v. Village of Wellington, 904 So. 2d 652, 653 (Fla. 4th DCA

2005) (holding a proposal ambiguous where “it could reasonably be read

to extinguish claims besides those related to the pending case”).

Further, the failure to name the parties to be released when there are

outstanding claims involving other parties can constitute an ambiguity.

See Dryden v. Pedemonti, 910 So. 2d 854, 856-57 (Fla. 5th DCA 2005) (“By

executing the general release proposed in this case, Pedemonti could have

been found by this court . . . to have extinguished any subrogated claim

against the tortfeasor then held or later acquired . . . .”). Even though

Travelers was not a defendant to the action, requiring Brown to release an

unnamed insurer and then failing to identify the insurer created

reasonable uncertainty as to whether accepting the proposal would

extinguish his outstanding workers’ compensation claim with Travelers.

Brown was unaware at the time the proposal was served that Andersen

had an additional insurer, not including Travelers, that was meant to be

released by the proposal. Therefore, it was reasonable for Brown to believe

that the insurer released by the proposal was Travelers. As a result, the

trial court did not err in finding that the proposal was ambiguous and not

able to support an award of attorney fees under section 768.79. We thus

affirm the trial court’s denial of an attorney fee award under section

768.79.

As to costs, however, we reverse and remand for a determination of a

costs award to Andersen as the prevailing party. Section 57.041, Florida

Statutes (2020), states: “The party recovering judgment shall recover all

his or her legal costs and charges which shall be included in the

judgment.” (emphasis added). The award of such costs is not discretionary

and “the party in whose favor judgment is entered to an award of all

taxable costs, as a matter of law.” Bessey v. Difilippo, 951 So. 2d 992, 993

(Fla. 1st DCA 2007). As Anderson was the prevailing party, the trial court

had no discretion to deny costs.

3

Brown contends that Andersen waived its right to costs under section

57.041 by not addressing taxation in its response to Brown’s opposition

or at the hearing on Andersen’s motion for fees and costs. However,

Florida Rule of Civil Procedure 1.525 requires only that a party seeking

costs serve a motion no later than thirty days after the filing of judgment;

it does not require that supplemental documentation be served within

such time. See P & R Smith Corp. v. Goyarrola, 864 So. 2d 584, 584 (Fla.

3d DCA 2004). Andersen was not required to deliver supplemental

documentation regarding taxation of costs prior to either filing its

entitlement motion or the entitlement hearing. Denying costs under

section 57.041 in the absence of an evidentiary hearing regarding

entitlement to those costs is error and must be reversed. See Tesla Elec.,

Armature & Mach., Inc. v. JLM Advanced Tech. Servs., Inc., 128 So. 3d 865,

866 (Fla. 1st DCA 2013).

Accordingly, we affirm the trial court’s denial of attorney’s fees under

section 768.79. However, we reverse and remand for an evidentiary

hearing regarding Andersen’s entitlement to costs under section 57.041.

Affirmed in part, reversed in part, and remanded.

WARNER and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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