Opinion
No. 2D21-1541.
05-24-2023
Nicholas C. GLADDING and Danielle Gladding, Appellants, v. Caroline D. DAHER, David P. Desrosiers, Joann Desrosiers, John C. Desrosiers, Jeanne D. Hill, and Jacqueline D. Russell, Appellees.
David A. Wallace , Morgan R. Bentley , and Amanda R. Kison of Bentley Goodrich Kison, P.A., Sarasota, for Appellants. Martin Garcia and Josh R. Dell of GarciaDell, P.A., Sarasota, for Appellees Caroline D. Daher, John C. Desrosiers, and David P. Desrosiers. No appearance for remaining Appellees.
David A. Wallace , Morgan R. Bentley , and Amanda R. Kison of Bentley Goodrich Kison, P.A., Sarasota, for Appellants.
Martin Garcia and Josh R. Dell of GarciaDell, P.A., Sarasota, for Appellees Caroline D. Daher, John C. Desrosiers, and David P. Desrosiers.
No appearance for remaining Appellees.
LaROSE, Judge.
Pondering his own mortality, Addie Bundren's father observed that "the reason for living was to get ready to stay dead a long time." William Faulkner, As I Lay Dying (1930). Wilfred Desrosiers, a West Virginia coal mine owner and patriarch of the Desrosiers family, ignored this admonition. So, after he died intestate in 1997, family peace collapsed for his lack of planning. The family contrived a plan to distribute Mr. Desrosiers' considerable estate in a manner designed to minimize federal estate taxes. However, after years of family infighting and litigation, the tax avoidance plan proved a disappointment.
This appeal presents a labyrinthine factual and procedural history. Fortunately, we need only review a discrete matter: the trial court's order denying Danielle and Nicholas C. Gladding's motion for attorney's fees. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We agree with the trial court; the Gladdings were not entitled to fees under section 768.79, Florida Statutes (2021). Thus, we affirm.
The parties use the terms "proposal for settlement" and "offer of judgment" interchangeably. Compare § 768.79 (entitled "Offer of judgment and demand for judgment."), with Fla. R. Civ. P. 1.442 (entitled "Proposals for Settlement"). Faced with these inconsistencies, we elect to use the statutory language. See Starboard Cruise Servs., Inc. v. De-Prince, 259 So.3d 295, 298 n.1 (Fla. 3d DCA 2018) ("The terms `proposal for settlement' and `offers of judgment' are used interchangeably, however section 768.79 uses the term `offers of judgment.'").
Background
In early 2021, decades after Mr. Desrosiers' death, the trial court found the family's tax avoidance plan unenforceable. The trial court entered a final judgment in favor of the family matriarch, Joann Desrosiers, one of her adult children, Danielle Gladding (née Desrosiers), and Danielle's husband, Nicholas C. Gladding. We affirmed the judgment on appeal. Desrosiers v. Hill, 345 So.3d 872, 872 (Fla. 2d DCA 2022) (table decision).
All three filed a motion for attorney's fees, claiming that other family members had rejected several offers of judgment. See § 768.79(1) ("In any civil action for damages filed in the courts of this state, 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 incurred by her or him ... if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer....").
Critically, Joann, alone, tendered the offers. The trial court concluded that the Gladdings were not entitled to attorney's fees because Joann was the "sole offeror[,] Nicholas and Danielle are not named."
To avoid confusion, we will use Joann's first name.
The trial court also rejected Joann's fee request. Shortly before making the offers, Joann "had effectively transferred her entire net worth to ... Danielle and Nicholas." The trial court explained that Joann "render[ed] herself unable to discharge any of the promised obligations" in her offers. Consequently, the trial court found that Joann's offers were not made in good faith in an earnest effort to settle the claims against her and end the years-long litigation. See § 768.79(7)(a) ("If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney's fees."); see also Progressive Select Ins. Co. v. Kagan Jugan & Assocs., 348 So.3d 1168, 1172 (Fla. 2d DCA 2022) ("[T]he question of whether a proposal was served in good faith turns entirely on whether the offeror had a reasonable foundation upon which to make his offer and made it with the intent to settle the claim against the offeree should the offer be accepted." (alteration in original) (quoting Wagner v. Brandeberry, 761 So.2d 443, 446 (Fla. 2d DCA 2000))).
Analysis
We review the trial court's fee order de novo. See Diecidue v. Lewis, 223 So.3d 1015, 1018 (Fla. 2d DCA 2017) ("Whether a proposal for settlement complies with rule 1.442 and section 768.79 is subject to de novo review."). First, however, we note that the posture of the appeal impacts our evaluation of the Gladdings' position.
The Gladdings timely invoked our appellate jurisdiction. See Fla. R. App. P. 9.110(b) ("Jurisdiction of the court under this rule shall be invoked by filing a notice, accompanied by any filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed....").
Joann did not file a notice of appeal. Consequently, she is an appellee. See Fla. R. App. P. 9.020(g)(2) (defining "appellee" as "[e]very party in the proceeding in the lower tribunal other than an appellant"). Joann did not seek realignment as an appellant. See Fla. R. App. P. 9.360(a).
Instead, before filing an initial brief, Joann asked us to correct a "scrivener's error" by filing an amended notice of appeal adding herself as an appellant. We denied her request. See Millar Elevator Serv. Co. v. McGowan, 804 So.2d 1271, 1272-73 (Fla. 2d DCA 2002) ("[T]he subjective intent of the attorney filing a notice of appeal does not determine which parties in the trial court proceedings become appellees in the appeal. Thus we are not required to consider the factual findings of the circuit court in this regard. Rather, determining the actual parties to an appeal... is strictly a legal question that can be answered by consulting the Florida Rules of Appellate Procedure and applicable case law." (footnote omitted)). The Gladdings' briefs offer no compelling reason to reevaluate our prior order.
As for the Gladdings, the trial court denied their fee motion because they made no offer of judgment. See § 768.79(2)(b) ("An offer must ... [n]ame the party making it and the party to whom it is being made."); Fla. R. Civ. P. 1.442(c)(2)(A) ("A proposal shall ... name the party or parties making the proposal...."); cf. Ormond Beach Assocs. v. Citation Mortg., Ltd., 835 So.2d 292, 295 (Fla. 5th DCA 2002) ("[T]he motion for attorney's fees below only related to Ormond Beach. Accordingly, only Ormond Beach possesses standing to challenge the order denying the request for offer of judgment attorney's fees."), abrogated on other grounds by Pino v. Bank of N.Y., 121 So.3d 23, 40 (Fla. 2013). Our record supports this finding.
As a result of the parties' respective alignments, the Gladdings find themselves in an unusual predicament, ostensibly on the same side as their trial court foes. Nevertheless, their arguments are but feeble attempts to challenge the trial court's finding that Joann's offers of judgment were not made in good faith. They cannot do so.
"[T]o have standing, a party must demonstrate a direct and articulable interest in the controversy, which will be affected by the outcome of the litigation." Whitburn, LLC v. Wells Fargo Bank, N.A., 190 So.3d 1087, 1091 (Fla. 2d DCA 2015) (quoting Centerstate Bank Cent. Fla., N.A. v. Krause, 87 So.3d 25, 28 (Fla. 5th DCA 2012)); Accela, Inc. v. Sarasota County, 901 So.2d 237, 238 (Fla. 2d DCA 2005) ("[S]tanding depends on whether a party has a sufficient stake in a justiciable controversy, with a legally cognizable interest which would be affected by the out-come of the litigation." (quoting Nedeau v. Gallagher, 851 So.2d 214, 215 (Fla. 1st DCA 2003))). The Gladdings have no stake in Joann's offers. The Gladdings made no offers. They do not stand to gain any benefit even if Joann's offers were enforceable. Indeed, the Gladdings lack any legally cognizable interest that could be vindicated by a finding that Joann's offers were made in good faith. Joann, not the Gladdings, is the real party in interest as to the disposition of her fee motion. See Fraternal Order of Police, Miami Lodge No. 20 v. City of Miami, 233 So.3d 1240, 1247 n.5 (Fla. 3d DCA 2017) ("The concept of standing contains the `requirement that the claim be brought by or on behalf of one who is recognized in the law as a `real party in interest." The `real party in interest' is `the person in whom rests, by substantive law, the claim sought to be enforced.'" (quoting Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1183 (Fla. 3d DCA 1985))).
The Gladdings possess a tenuous relationship to the offers; had the remaining appellees accepted the offers, they would have been required to dismiss their claims in one of their suits against the Gladdings. However, we must circle back to the undisputed fact that the Gladdings did not make the offers. The offeror potentially benefits under the offer of judgment regime. See Progressive Select Ins. Co., 348 So. 3d at 1171 ("[S]ection 768.79 creates a mandatory right to attorney's fees if its prerequisites are met." (quoting McGregor v. Molnar, 79 So.3d 908, 910 (Fla. 2d DCA 2012))).
Under Florida Rule of Civil Procedure 1.120(a), "an action [may] be prosecuted by someone representing the real party in interest in a dispute, ... courts have held that `where a plaintiff ... is maintaining the action on behalf of the real party in interest, its action cannot be terminated on the ground that it lacks standing.'" Pirate's Treasure, Inc. v. City of Dunedin, 277 So.3d 1124, 1130 (Fla. 2d DCA 2019) (quoting Kumar, 462 So. 2d at 1183). We do not have that situation, here.
Conclusion
The Gladdings cannot prevail. We affirm the trial court's attorney's fee order. See Stone v. Stone, 873 So.2d 628, 630 (Fla. 2d DCA 2004) ("The burden of proof on appeal lies with the appellant to demonstrate that the trial court erred.").
Affirmed.
KHOUZAM and SMITH, JJ., Concur.