In a case seeking monetary and non-monetary relief, pursuant to section 768.79, Florida Statutes (2011), Diamond Aircraft served Horowitch with an offer of judgment for $40,000. The offer of judgment stated:
Diamond Aircraft offers to settle this case on the following terms:
1. Diamond Aircraft shall pay Plaintiff the sum of forty thousand dollars ($40,000.00).
2. This offer is intended to resolve all claims that were or could have been asserted by Plaintiff against Diamond Aircraft in the Amended Complaint filed March 15, 2007. The condition of this offer is that Plaintiff will dismiss his pending claims against Diamond Aircraft, with prejudice to re-file.
3. This offer shall remain open for thirty (30) days from the date hereof. Failure to accept this offer within thirty (30) days shall be deemed a rejection of this offer under Fla. Stat. § 768.79(1).
4. This offer shall be accepted by filing a written acceptance with the Court within 30 days after service. Fla. Stat. § 768.79(4).
The offer was not accepted and, after entry of judgment, Diamond Aircraft sought fees per 768.79.
The Florida Supreme Court determined that Diamond Aircraft was not entitled to recover its attorneys’ fees because “section 768.79 does not apply to cases that seek both equitable relief and damages.” The court left open the door open to the use of an offer that was intended to settle only the monetary portion of the lawsuit, rather than the entire claim.
DIAMOND AIRCRAFT INDUSTRIES, INC. v. ALAN HOROWITCH, 38 Fla. L. Weekly S17a (Fla. Jan. 10, 2013).
