IN THE SUPREME COURT STATE OF FLORIDA CASE NO. SC DCA CASE NO. 1D AMENDED ANSWER BRIEF OF RESPONDENT BOBBY FLOYD

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1 IN THE SUPREME COURT STATE OF FLORIDA JULIE CONNELL and CENTURY 21- WINSTON CONNELL, Realtor, Defendants/Petitioners, vs. BOBBY FLOYD, BIG BEND TIMBER SERVICES, INC., JERRY WALTON, and RICHARD CONNELL, CASE NO. SC DCA CASE NO. 1D Plaintiffs/Respondents. / AMENDED ANSWER BRIEF OF RESPONDENT BOBBY FLOYD J. STEVEN CARTER Florida Bar No LAURA BETH FARAGASSO Florida Bar No Henry, Buchanan, Hudson, Suber & Carter, P.A. Post Office Drawer 1049 Tallahassee, Florida (850) Attorneys for Plaintiff/Respondent, Bobby Floyd

2 TABLE OF CONTENTS Page TABLE OF AUTHORITIES...i STATEMENT OF THE CASE AND FACTS...1 SUMMARY OF THE ARGUMENT...2 JURISDICTION...3 ARGUMENT THE CONNELL DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANY OF THE OPINIONS CITED BY PETITIONERS...4 CONCLUSION...7 CERTIFICATE OF SERVICE...7 CERTIFICATE OF COMPLIANCE...8 -ii-

3 TABLE OF AUTHORITIES Page(s) CASES Matetzchk v. Lamb, 849 So. 2d 1141 (Fla. 5th DCA 2003)... 4 Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993)... 5, 6 TGI Friday s v. Dvorak, 663 So. 2d 606 (Fla. 1995)... 5, 6 Wagner v. Brandenberry, 761 So. 2d 443 (Fla. 2d DCA 2000)... 5 Willis Shaw Express, Inc. v. Hilyer Faad, Inc., 894 So. 2d 276 (Fla. 2003)... 4 FLORIDA RULES OF CIVIL PROCEDURE Rule 1.442(i)...1 Rule 1.442(c)(3)...4 Rule 1.442(c)(2)(C) and (D)...5 FLORIDA RULES OF APPELLATE PROCEDURES Rule 9.030(a)(2)(A)(iv)...3 OTHER AUTHORITY Art. V, 3(b)(3), Fla. Const iii-

4 STATEMENT OF THE CASE AND FACTS Respondent Floyd accepts the Statement of the Case and Facts as presented by petitioners, with the exception of their characterization of the rationale of the majority opinion, as contained in the third sentence of paragraph one, page 2, and the first sentence of the following paragraph. Contrary to petitioners' representation that the District Court hold the offer invalid because it was a partial settlement, the court expressly recognized the validity of proposals for settlement aimed at resolving less than an entire case. (Connell at 4). 1 Nor did the district court fail "to recognize that Rule 1.442(i) specifically limits the admissibility of any proposal for settlement." (Petitioners' brief at 2). As clearly reflected in the Connell opinion, it was the proposed judgment for which there was a question of admissibility, not the proposal or fact of settlement, and "the appellants concede[d] that a final judgment containing a finding that appellants prevailed on the facts...might have been admissible in the litigation of the remaining counterclaims...." (Connell at 4). 1 "...[T]he appellants assert that they sought to bring an early end to a portion of the litigation, a goal which is acceptable under the statute and the rule...." -1-

5 SUMMARY OF THE ARGUMENT Because the Connell decision does not conflict at all with any of the decisions cited by petitioners, much less expressly and directly conflict with them, the Court should deny the petition for discretionary review. -2-

6 JURISDICTION The Florida Supreme Court undisputedly has discretionary jurisdiction to review a decision of a district court which expressly and directly conflicts with the decision of another district court of appeal or of this court on the same point of law. Art. V, 3(b)(3), Fla. Const.; Fla.R.App.P (a)(2)(A)(iv). As argued below, however, the Connell decision does not meet this criterion, and the Court should not undertake discretionary review of the case. -3-

7 ARGUMENT THE CONNELL DECISION DOES NOT EXPRESSLY AND DIRECTLY CONFLICT WITH ANY OF THE OPINIONS CITED BY PETITIONERS. Willis Shaw Express, Inc. v. Hilyer Faad, Inc., 849 So. 2d 276 (Fla. 2003), does, as suggested by petitioners, hold that "a strict construction of the plain language of Rule 1.442(c)(3) requires that offers of judgment made by multiple offerors must apportion the amounts attributable to each offeror. There is no mention whatsoever of this issue in the majority opinion in Connell, and as noted in the dissent, the majority avoided any reliance on the lack of allocation by the two offerors as a basis for holding the proposal invalid. (Connell at 9). Discretionary review of Connell on this basis certainly would not add anything to Florida jurisprudence, in light of this Court's pending review of Matetzchk v. Lamb, 849 So. 2d 1141 (Fla. 5th DCA 2003), the Supreme Court Case No. SC , on the issue of how the presence of a vicariously liable party affects the apportionment requirement of proposals for settlement. Nor does Connell conflict with Willis Shaw on the issues of specificity or strict construction of the settlement statute and rule. The distinction between the Willis Shaw "standard release" and the required final judgment in Connell is one which petitioners persistently ignore. That is, a release or even a dismissal with prejudice does not carry with it the potential res judicata or collateral estoppel effect of a judgment, and it was this potential effect which was unclear in Connell. Contrary to -4-

8 petitioners' assertion that the Connell court ignored the Willis Shaw admonition for strict construction, the majority opinion cites to Willis Shaw and specifically embraces a rule of strict construction. (Connell at 4). As the majority noted, this strict construction analysis applies to the requirement of Rules 1.442(c)(2)(C) and (D) for all non-monetary terms of an offer to be stated with particularity. The unique scenario of petitioners proposing the entry of judgment making "an express finding that the defendants prevailed in the defense of the claim against them" did not meet this exacting standard. This was because it rendered respondent unable to ascertain the consequences of accepting the offer. The majority did not impose a new condition for non-monetary terms in a proposal for settlement; it simply adhered to the particularity requirement which mandates that consequences of an offer be objectively ascertainable. Petitioners reliance on Wagner v. Brandenberry, 761 So. 2d 443 (Fla. 2d DCA 2000), as a source of conflict is completely misplaced. Wagner stands for the proposition that a proposal for settlement may resolve less than all of the claims between the parties. The majority opinion expressly recognized this established principle of law at pages 4 and 5. Finally, nothing about Connell expressly and directly conflicts with holdings regarding statutory entitlement to attorney s fees under Schmidt v. Fortner, 629 So. 2d 1036 (Fla. 4th DCA 1993), or TGI Friday s v. Dvorak, 663 So. 2d 606 (Fla. 1995). Connell addressed no such issue. Schmidt rejected the notion that an offeror must possess a certain quantum of evidence in support of a favorable judgment in order to -5-

9 make that offer one given in good faith. Again, this was not the issue in Connell. Petitioners correctly cite language from Schmidt to the effect that once simple elements of a proposal for settlement have been met, the proposing party is entitled to attorney s fees. This presupposes, however, that the proposal for settlement has been properly made. In Connell, the majority held that this prerequisite was not met because the non-monetary condition of the proposal was not stated with particularity. This conclusion does not conflict with either TGI or Schmidt. -6-

10 CONCLUSION Petitioners have failed to demonstrate any express or direct conflict between the Connell opinion and any of the decisions cited in petitioners brief. This Court should therefore decline to exercise its discretionary jurisdiction to consider the merits of the case. Respectfully submitted, HENRY, BUCHANAN, HUDSON, SUBER & CARTER, P.A. J. STEVEN CARTER Florida Bar No LAURA BETH FARAGASSO Florida Bar No Post Office Drawer 1049 Tallahassee, Florida (850) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing has been furnished by U.S. Mail to JOHN R. BERANEK, Ausley & McMullen, P.O. Box 391, Tallahassee, FL 32302, and CHARLES J.F. SCHREIBER, JR., C. TIMOTHY GRAY, Bateman Harden, P.A., 300 East Park Avenue, Tallahassee, FL 32301, on this 11th day of May

11 J. STEVEN CARTER CERTIFICATE OF COMPLIANCE Pursuant to Florida Rule of Appellate Procedure 9.210(a)(2), I certify that the font used in this Amended Answer Brief of Respondent Bobby Floyd is Times New Roman 14. J. STEVEN CARTER -8-