Third District Court of Appeal
                               State of Florida

                            Opinion filed April 4, 2018.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                          Nos. 3D16-1692, 3D17-173
                                 & 3D17-174
                         Lower Tribunal No. 11-39508
                             ________________

                          Haas Automation, Inc.,
                                    Appellant,

                                        vs.

                           Dr. Robert Fox, et al.,
                                    Appellees.

      Appeals from the Circuit Court for Miami-Dade County, Jacqueline Hogan
Scola, Judge.

     Kopelowitz Ostrow Ferguson Weiselberg Gilbert, and John J. Shahady and
Thomas R. Shahady (Fort Lauderdale); Law Offices of Douglas Paul Solomon,
and Douglas P. Solomon (Fort Lauderdale), for appellant.

      Isicoff, Ragatz & Koenigsberg, and Eric D. Isicoff and Christopher M.
Yannuzzi; Marshall Socarras Grant, P.L., and Ruben E. Socarras (Boca Raton), for
appellees.


Before LOGUE, SCALES and LINDSEY, JJ.

      SCALES, J.
        Appellant,   defendant/counter-plaintiff/cross-plaintiff    below,     Haas

Automation, Inc. (“Haas”), appeals three final judgments entered against Haas in

this case. In appellate case number 3D16-1692, Haas appeals the final judgment

entered in favor of (i) appellees, plaintiffs/counter-defendants below, Dr. Robert

Fox, Helene Fox, Dr. Steven Fox and Sherri Fox (“the Foxes”), on the Foxes’

claims for breach of a third-party beneficiary contract and for declaratory relief;

and (ii) appellee, defendant/cross-defendant below, Fisher Auction Company, Inc.

(“Fisher Auction”) on Haas’s crossclaims for breach of contract, material alteration

and deceptive and unfair trade practices. In appellate case number 3D17-173,

Haas appeals the final judgment awarding attorney’s fees and costs to the Foxes.

In appellate case number 3D17-174, Haas appeals the final judgment awarding

attorney’s fees and costs to Fisher Auction. We consolidated the three appeals,

and affirm the final judgment on the merits, and affirm, in part, the attorney’s fees

judgments.

   I.      Facts

   A. The Relevant Documents

        The Foxes engaged the services of Fisher Auction to sell two oceanfront

homes in Golden Beach, Florida at the same auction.          The auction brochure

advertising the auction, and the property information package describing the

subject properties, plainly indicated that the two homes would be sold separately.



                                         2
Pursuant to the auction’s eligibility rules, Haas registered to bid on the homes and

executed a Bidder Registration Form and a document titled “General Terms and

Conditions of Sale.” In order to be eligible to bid on both homes, pursuant to the

General Terms and Conditions of Sale, Haas deposited $1,000,000 with Newman

Guaranty Title Insurance Agency       (“Newman Title”) (i.e., $500,000 for each

property), and noted on the Bidder Registration Form that Haas would be bidding

on both properties.1

      The General Terms and Conditions of Sale contained, inter alia, provisions

requiring the highest bidder at the auction to execute, as the buyer, a purchase and

sale contract, with no edits, revisions, or amendments.2 The General Terms and

Conditions of Sale provided that should the highest bidder fail to comply with this

requirement immediately following the auction, the seller (the Foxes) would retain

the required deposits as liquidated damages:

      8. DEFAULT:

      If the Buyer fails to comply with any of these General Terms and
      Conditions of Sale, the Seller shall retain the required deposit(s),
      which shall be considered fully earned and non-refundable, under the
      Agreement as liquated damages and not as a penalty. Upon Default,

1 Prior to the auction, Haas executed a document acknowledging that Haas’s board
of directors had authorized Albert Wadsworth to participate in the auction and to
execute the necessary documents to bind Haas to all written instruments related to
the auction of the properties.
2A blank copy of the purchase and sale contract was provided to all bidders in the
bidder packet.

                                         3
      Buyer agrees to the immediate release of the deposit funds to the
      Seller without the requirement of further documentation from Buyer.

      The purchase and sale contract that the highest bidder was required to

execute contained the following prevailing party attorney’s fee provision:

      6. Special Clauses:

            ....

      M. . . . In any litigation, including breach, enforcement or
      interpretation arising out of this Contract, the prevailing party in such
      litigation shall be entitled to recover from the non-prevailing party,
      reasonable attorney’s fees, costs and expenses.

   B. The Auction

      On November 10, 2011, the auction of both homes was held in the living

room of one of the homes. Fisher Auction’s auctioneer explained at the auction

that the homes would be sold using the “High Bidder’s Choice” method,3 whereby

the highest bidder in the first round would choose which of the two homes to
3 The General Terms of Conditions of Sale allowed the auctioneer to set the

bidding process:

      7. ANNOUNCEMENTS

      All announcements from the Auction Block at the Auction will take
      precedence over all previously printed material and any other oral
      statements made; provided however that the Auctioneer shall not be
      authorized to make any representation or warranty (express or
      implied) with respect to the Property. In the event of a dispute over
      the bidding process, the Auctioneer shall make the sole and final
      decision and will have the right either to accept or reject the final bid
      or re-open the bidding. Bidding increments shall be at the sole
      discretion of the Auctioneer.


                                         4
purchase at that high bid. If, however, the high bidder in the first round had

registered to bid on both homes, as did Haas, the high bidder could purchase both

homes for two times the high bid amount; and, if the high bidder exercised this

option, the auction would be over.

      In the auction’s first round, Haas, through Mr. Wadsworth, was the high

bidder, bidding $6.2 million. At the fall of the gavel, the auctioneer asked if Mr.

Wadsworth wanted to exercise the option to take both homes at “two times the

bid.” Mr. Wadsworth indicated he did wish to exercise the option, which decision

was clearly acknowledged by the auctioneer.4 After exercising the option, the

auctioneer announced that the high bidder had taken both homes and, thus, the

auction was over. The auctioneer stated:

      He takes them both, folks. It’s times two’s the money. He takes both
      properties at $6.2 million. Auction’s over folks. Ladies and
      gentlemen, I want you to understand, that’s what’s happened.
      Remember I told you the high bidder could take them, two times the
      bid. He’s indeed done that.

      After the auction, Mr. Wadsworth signed a Bid Acknowledgment Form5 that

indicated that the bid price was “6.2M” rather than twice that number.6 After Mr.

4The auction was memorialized with an audio and video recording. The trial court
admitted the recordings in the lower proceeding over Haas’s objections.
5 A blank copy of the Bid Acknowledgment Form was given to all bidders in the
bidder packet.
6 At trial, the auction clerk testified that “12.4M” was not included on the form
because that was not the “bid price.”

                                           5
Wadsworth executed the Bid Acknowledgement Form, Fisher Auction’s executive

vice president, Francis Santos, who was also in attendance, handwrote “x2” next to

the bid price on the form. Mr. Santos then took the Bid Acknowledgment Form to

the “contract room,” where a Fisher Auction employee filled in blanks on the form,

including the ten percent buyer’s premium ($620,000) provided for in the General

Terms and Conditions of Sale, and the total purchase price ($6,820,000).

       While he signed the Bid Acknowledgment Form, Mr. Wadsworth refused

both: (i) to execute the two purchase and sale agreements; and (ii) to pay an

additional deposit ($364,000) as required by the General Terms of Conditions of

Sale. Mr. Wadsworth stated that he believed that he had purchased both homes for

the $6.2 million bid.7 The Foxes then ended up selling the two homes to other

buyers for well less than $6.2 million each, resulting in a significantly smaller

amount of sales proceeds to the Foxes after sales commissions were deducted.8




7  The record reflects that, after the auction, Haas’s lawyer spoke with
representatives of Fisher Auction and explained that, “our guy [Wadsworth]
screwed up.” Notably, at his deposition, Mr. Wadsworth admitted that he knew,
prior to the auction, that the Foxes had separately listed the homes with real estate
brokers for $11.5 million and $12.9 million, respectively.
8 The trial court found that subsequent sales resulted in a net loss of $660,000 to
Dr. Steven and Sherri Fox and a net loss of $1,800,000 to Dr. Robert and Helene
Fox.


                                         6
    C. The Lawsuit

      In November 2011, the Foxes filed the underlying action in the Miami-Dade

County Circuit Court. In their Amended Complaint, the Foxes brought: (i) a claim

against Haas for breach of a third-party beneficiary contract (i.e., the General

Terms and Conditions of Sale) (Count I), seeking to retain, as liquidated damages,

the $1,000,000 Haas had deposited with Newman Title9 in order to bid on the two

homes at the auction; and (ii) a claim against Haas and Fisher Auction for

declaratory relief (Count II) regarding the Foxes’ entitlement to the $1,000,000

deposit.

      Haas filed an Amended Counterclaim for breach of contract against the

Foxes, alleging that the Bid Acknowledgement Form created a binding contract

requiring the Foxes to sell both properties to Haas for $6.2 million. Haas also filed

a Second Amended Crossclaim against Fisher Auction alleging: (i) breach of

contract (Count I), based on Fisher Auction’s purported breach of the Bid

Acknowledgment Form;            (ii) material alteration (Count II) of the Bid

Acknowledgment Form, based on Mr. Santos’s adding “x2” next to the bid price;

and (iii) deceptive and unfair trade practices (Count III).



9 Newman Title was originally a defendant in this action. The Foxes dropped
Newman Title as a defendant after Newman Title wired Haas’s $1,000,000 escrow
deposit to the Foxes’ counsel’s trust account.


                                           7
      During the course of the proceedings, the Foxes served a request for

admissions on Haas. Haas denied those admissions that were directed to the events

that took place at the auction, including Mr. Wadsworth’s understanding of, and

actions at, the auction.

      The parties also served proposals for settlement on each other. Specifically,

Haas served a separate proposal for settlement on each of the four Foxes, offering

to settle all claims and counterclaims in exchange for Haas paying each of the

Foxes $28,151 and each of the Foxes executing a general release of their claims to

the $1,000,000 deposit then being held by Newman Title. The Foxes, jointly,

served a single, un-apportioned proposal for settlement on Haas, offering to settle

the Foxes’ claims for $799,999.00.          According to the Foxes’ proposal, the

settlement would be paid from the $1,000,000 deposit then being held by Newman

Title, with $799,999.00 going to the Foxes and the remaining $200,001.00 going to

Haas. Fisher Auction served a proposal for settlement on Haas, offering to settle

Haas’s crossclaims against it in exchange for paying Haas $1,000. None of the

proposals for settlement were accepted.10

10 Earlier in the proceedings, the trial court entered final summary judgment in
favor of the Foxes and Fisher Auction. We reversed, concluding that genuine
issues of material fact regarding ambiguities in the Bid Acknowledgment Form
precluded summary judgment. Haas Automation Inc. v. Fox, 

(Fla.
3d DCA 2014) (“Haas I”). In that appellate case, both Haas and the Foxes moved
this Court for an award of appellate attorney’s fees, with both parties citing to their
respective proposals for settlement and with Haas also relying upon the attorney’s
fees provision contained in the unexecuted real estate sale contracts. Because Haas

                                            8
   D. The Trial

      The trial court conducted a two-day bench trial in April 2016. In a detailed,

thirty-nine page order outlining findings of fact and conclusions of law, the trial

court concluded that: (i) the Bid Acknowledgment Form was not a “fully-

integrated expression of the parties’ agreement” to sell the Foxes’ homes to Haas

for $6.2 million; (ii) the General Terms and Conditions of Sale, the Bid

Acknowledgment Form, and the purchase and sale contract all worked together to

establish and memorialize the auction process; (iii) the auctioneer plainly and

clearly explained the auction methods; (iv) Haas breached the General Terms and

Conditions of Sale by failing to execute the purchase and sale contracts for the two

properties; (v) the Foxes were intended third-party beneficiaries of the General

Terms and Conditions of Sale; and (vi) the liquidated damages provision of the

General Terms and Conditions of Sale did not constitute an unenforceable penalty

provision. The trial court also rejected Haas’s crossclaim against Fisher Auction

for deceptive and unfair trade practices. These findings of fact and conclusions of

law were incorporated into a June 7, 2016 final judgment, awarding to the Foxes,

as liquidated damages, the $1 million Haas had previously deposited with Newman


prevailed in having the summary judgment reversed, this Court granted Haas’s
motion for appellate attorney’s fees, conditioned upon Haas ultimately prevailing
in the case on remand. Our order did not specify the grounds for conditionally
granting Haas’s motion for fees.


                                         9
Title. Haas timely appealed this final judgment (appellate case number 3D16-

1692).

   E. Attorney’s Fees Awarded to the Foxes

      Shortly thereafter, the parties litigated whether the Foxes and Fisher Auction

were entitled to recover their attorney’s fees from Haas. The trial court concluded

that the Foxes were entitled to attorney’s fees based upon: (i) the prevailing party

attorney’s fees provision contained in the unexecuted purchase and sale contracts;

(ii) Haas’s rejection of the Foxes’ joint proposal for settlement; and (iii) Haas’s

denial of certain of the Foxes’ requests for admission with respect to the events

that took place at the auction, including Mr. Wadsworth’s understanding of, and

actions at, the auction. Commendably, the parties thereafter stipulated to the

amount of attorney’s fees to which the Foxes were entitled to recover under each

ground, with Haas reserving the right to appeal the trial court’s entitlement

determination. On January 4, 2017, the trial court entered a final attorney’s fees

judgment for the Foxes in the amount of $207,172.61, including taxable costs, that

Haas also has appealed (appellate case number 3D17-173).

   F. Attorney’s Fees Awarded to Fisher Auction

      The trial court concluded that Fisher Auction was also entitled to attorney’s

fees based upon: (i) the prevailing party attorney’s fees provision contained in the

unexecuted purchase and sale contracts; and (ii) Haas’s rejection of Fisher



                                        10
Auction’s proposal for settlement. Once again, the parties thereafter stipulated to

the amount of attorney’s fees to which the Foxes were entitled to recover under

each ground, with Haas reserving the right to appeal the trial court’s entitlement

determination. On January 4, 2017, the trial court entered a final attorney’s fees

judgment against Haas in the amount of $53,604.24, including taxable costs, for

Fisher Auction, that Haas also has appealed (appellate case number 3D17-174).

   II.      Analysis

         A. The Judgment on the Merits (3D16-1692)

         We review a judgment rendered after a bench trial to ensure that the trial

court’s findings of fact are supported by competent, substantial evidence.

Underwater Eng’g Servs., Inc. v. Util. Bd. of City of Key West, 

,

444 (Fla. 3d DCA 2016) (“In reviewing a judgment rendered after a bench trial,

‘the trial court’s findings of fact come to the appellate court with a presumption of

correctness and will not be disturbed unless they are clearly erroneous.’

Emaminejad v. Ocwen Loan Servicing, LLC, 

, 535 (Fla. 3d DCA

2015). Thus, they are reviewed for competent, substantial evidence.”). We review

the trial court’s purely legal conclusions de novo. 

a trial court’s

contractual interpretations rendered after a bench trial are subject to de novo

review). The final judgment in this case implicates both standards.




                                         11
      The record contains ample competent, substantial evidence supporting the

trial court’s factual findings that: (i) the auction process was memorialized by

several documents – to wit, the General Terms and Conditions of Sale, the

purchase and sale contract and the Bid Acknowledgement Form; (ii) Haas, as the

high bidder, was bound by the General Terms and Conditions of Sale; (iii) Haas

breached the General Terms and Conditions of Sale when it failed to execute the

purchase and sale contracts; and (iv) the Foxes were intended third party

beneficiaries of the General Terms and Conditions of Sale agreement.11

      Similarly, the trial court did not err in its legal conclusion that the liquidated

damages clause contained in the General Terms and Conditions of Sale is not an

unenforceable penalty.     See San Francisco Distrib. Ctr., LLC v. Stonemason

Partners, LP, 

, 394 (Fla. 3d DCA 2014) (concluding that a

liquidated damages provision in a real estate sale contract will not be considered a

penalty where the “sum stipulated to be forfeited [is] not [] grossly

disproportionate to any damages that might reasonably be expected to follow from

a breach,” noting that “Florida courts addressing this issue have held that a




11See Networkip, LLC v. Spread Enters., 

, 358 (Fla. 3d DCA 2006)
(“A third party is considered a beneficiary to the contract only if the contracting
parties intend to primarily and directly benefit the third party. . . . [T]he test is
whether the parties to the contract intend that a third person be benefited by the
contract . . . .”).

                                          12
forfeiture amount of ten percent or less of the total purchase price is not

unconscionable”) (quoting Lefimine v. Baron, 

, 328 (Fla. 1991)).

      We, therefore, affirm the final judgment on the merits in favor of the Foxes

and Fisher Auction.

      B. The Attorney’s Fees Judgments (3D17-173) and (3D17-174)12

      As noted earlier, the trial court determined that the Foxes were entitled to

the recovery of their attorney’s fees on three separate bases: (i) the attorney’s fees

provision of the purchase and sale contracts; (ii) the Foxes’ proposal for

settlement; and (iii) Haas’s denial of requests for admission the Foxes propounded

upon it. The trial court also determined that Fisher Auction was entitled to the

recovery of its attorney’s fees based upon (i) the attorney’s fees provision of the

purchase and sale contracts, and (ii) Fisher Auction’s proposal for settlement. We

address each basis of entitlement below.

      1. Contractual Attorney’s Fees13



12 Haas does not challenge the trial court’s award of taxable costs contained in both
attorney’s fees judgments.
13 Appellate courts generally review a trial court’s award of attorney’s fees for
abuse of discretion. See US Acquisition, LLC v. Tabas, Freedman, Soloff, Miller
& Brown, P.A., 

, 1234 (Fla. 4th DCA 2012). Where the award of
contractual attorney’s fees hinges on the interpretation of a contractual provision,
however, we review that provision as a pure matter of law, de novo. Id; see Point
E. Four Condo. Corp. v. Zevuloni & Assocs., Inc., 

, 687 (Fla. 4th
DCA 2010).

                                           13
      The trial court determined that both the Foxes and Fisher Auction were

entitled to recover attorney’s fees from Haas based on the prevailing party

attorney’s fees provision contained in the purchase and sale contracts.        We

disagree and disallow any fee award on this basis.

      Haas never executed the purchase and sale contracts despite the express

requirement in the General Terms and Conditions of Sale. Indeed, Haas’s failure

to execute these purchase and sale agreements formed the basis of Haas’s breach.

Without Haas having signed them, the purchase and sale contracts were

unenforceable; and, though the General Terms and Conditions of Sale may have

referenced the purchase and sale contracts, there was nothing in the General Terms

and Conditions of Sale incorporating any of the provisions of the purchase and sale

contracts into the General Terms and Conditions of Sale. Indeed, paragraph 16 of

the General Terms and Conditions of Sale confirms that “this Agreement embodies

the entire agreement between the parties relative to the subject matter, and there

are no oral or written agreements between the parties, or any oral representations

made by either party relative to the subject matter, which are not expressly set

forth herein.” Had Fisher Auction and the Foxes intended for the prevailing party

to recover attorney’s fees under the particular circumstances of this case, then a

prevailing party attorney’s fees provision also should have been set forth in the

General Terms and Conditions of Sale – the document that Haas did sign. Kaplan



                                        14
v. Bayer, 

, 419 (Fla. 2d DCA 2001) (“It is not clear that the parties

intended to provide for an attorney’s fee provision in the Agreement for Deed.

However, it is clear that they knew how to draft such a provision since one appears

in the Purchase Agreement. Absent the clear intention to include such a provision .

. . the trial court’s award of attorney’s fees . . . was improper.”). We therefore

reverse that portion of both attorney’s fees judgments purporting to entitle

recovery on the attorney’s fees provision found in the purchase and sale contracts.

See 

(reversing the trial court’s award of attorney’s fees pursuant to a

prevailing party attorney’s fees provision contained in a purchase agreement where

(i) the purchase agreement was referenced by, but not expressly incorporated into,

the parties’ subsequent deed agreement, and (ii) the deed agreement contained a

provision providing that “[t]his Agreement . . . contains the entire Agreement of

the parties”); Myerson v. Cohen, 

, 931 (Fla. 3d DCA 1977) (“In an

effort to attach individual liability against Meyerson on the attorneys fees, Cohen

argues that the mortgage provision for attorneys fees is incorporated into the

purchase and sale agreement which Meyerson signed. We cannot agree. There is

no language in the purchase and sale agreement which evinces the slightest intent

to incorporate any of the provisions of the mortgage agreement and Cohen cites us

to none.”).

      2. The Proposals for Settlement14



                                          15
      As an alternate basis, the trial court found that the Foxes and Fisher Auction

were entitled to recover attorney’s fees from Haas based on Haas’s rejection of

their respective proposals for settlement. We affirm the trial court’s entitlement

determination as to Fisher Auction, but reverse as to the Foxes.

      a. Fisher Auction’s Proposal for Settlement

      Fisher Auction served a proposal for settlement on Haas, offering to settle

Haas’s crossclaims against Fisher Auction for $1,000. On May 23, 2016, the trial

court entered judgment in favor of Fisher Auction on Haas’s crossclaims. On June

17, 2016, Fisher Auction filed its motion for attorney’s fees, but did not attach a

copy of its proposal for settlement to the fees motion. On July 26, 2016, after the

trial court bifurcated the issues of fee entitlement and fee amount, Fisher Auction

filed a copy of the proposal for settlement.

      Without citation to any authority, Haas argues that, under Florida Rule of

Civil Procedure 1.442(d) and section 768.79 of the Florida Statues, proposals for

settlement must be filed prior to the time a party seeks to enforce an entitlement to

attorney’s fees.   Therefore, according to Haas, Fisher Auction’s proposal for




14“An appellate court applies the de novo standard of review in determining
whether an offer of settlement comports with rule 1.442 and section 768.79
because a ‘proposal for settlement is in the nature of a contract.’” Miami-Dade
Cty. v. Ferrer, 

, 290 (Fla. 3d DCA 2006) (quoting Jamieson v.
Kurland, 

, 268 (Fla. 2d DCA 2002)).

                                         16
settlement is invalid because Fisher Auction did not attach a copy of its proposal to

its motion for attorney’s fees. We disagree.

      Rule 1.442(d) provides that “[a] proposal shall be served on the party or

parties to whom it is made but shall not be filed unless necessary to enforce the

provisions of this rule.” Section 768.79(3) of the Florida Statutes (2016) provides

that “[t]he offer shall be served upon the party to whom it is made, but it shall not

be filed unless it is accepted or unless filing is necessary to enforce the provisions

of this section.” Plainly, neither the rule nor the statute require that the proposal

for settlement be filed either before moving for fees or when moving for fees.

Both simply require that the movant file the proposal for settlement when

“necessary” to enforce provisions of the rule and the statute. Fla. R. Civ. P.

1.442(d); § 768.79(3), Fla. Stat. (2016); see Frosti v. Creel, 

, 915

(Fla. 2008) (recognizing that “neither rule 1.442 nor section 768.79 delineates a

specific period within which to file a proposal for settlement”).

      In Frosti, the Florida Supreme Court found it permissible for a party to file a

proposal for settlement after a jury verdict, but before entry of a final judgment,

noting that neither rule 1.442 nor section 768.79 “unambiguously defines when a

proposal for settlement should be filed.” 

For analogous reasons, we find

it permissible for Fisher Auction to have filed its proposal for settlement after the

filing of the motion for attorney’s fees, but before the hearing on the motion. We



                                         17
therefore reject Haas’s argument that Fisher Auction’s proposal for settlement was

invalid, and affirm the trial court’s fee entitlement judgment on this basis.

Pursuant to the parties’ commendable stipulation on amount, the attorney’s fees

award should be reduced to $33,635.50, plus interest.

      b. The Foxes’ Proposal for Settlement

      The Foxes, collectively, served on Haas a single, un-apportioned proposal

for settlement that stated, in relevant part:

             1. The Foxes make this proposal for settlement to Haas.

             2. This proposal for settlement is to resolve all claims that were
      asserted by the Foxes against Haas in this action and all claims that
      could have been asserted by the Foxes against Haas in this action that
      arose from the same nucleus of operative facts.

             ....

           4. The Foxes propose to settle this case in exchange for a
      payment by Haas to the Foxes in the amount of SEVEN HUNDRED
      NINETY-NINE THOUSAND NINE HUNDRED NINETY-NINE
      DOLLARS AND NO CENTS (U.S. $799.999.00), to be paid in the
      manner set forth in paragraph 5.

            5. The Foxes and Haas will jointly execute a letter . . . directing
      Newman Guaranty Title Insurance Agency to disburse from its
      escrow account (i) the sum of $799,999.00 to the Foxes in a check
      made payable to Isicoff, Ragatz & Koenigsberg and delivered to the
      Foxes’ counsel; and (ii) the sum of $200,001.00 to Haas in a check
      made payable to Haas Automation, Inc. and delivered to Haas’
      counsel.

      Section 768.79 of the Florida Statutes provides the substantive basis for

attorney fee entitlement, and rule 1.442 provides the procedural framework to


                                           18
implement section 768.79’s substantive requirements. See Kuhajda v. Borden

Dairy Co. of Ala., LLC., 

, 395 (Fla. 2016). Section 768.79(2)(b)

requires all proposal for settlement offers to “[n]ame the party making [the offer]

and the party to whom [the offer] is being made.” § 768.79(2)(b), Fla. Stat. (2016)

(emphasis added).     In part, rule 1.442(c)(3) implements this requirement by

allowing offerors to make a joint offer, so long as the “joint proposal . . . state[s]

the amount and terms attributable to each party.” Fla. R. Civ. P. 1.442(c)(3). Rule

1.442(c)(3)’s apportionment requirement “must be strictly construed because it, as

well as the offer of judgment statute, is in derogation of the common law rule that

each party is responsible for its own fees.” Pratt v. Weiss, 

, 1271

(Fla. 2015); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 

, 279

(Fla. 2003) (holding that in order for a section 768.79 settlement offer to be valid,

“an offer from multiple plaintiffs must apportion the offer among the plaintiffs” as

provided by rule 1.442(c)(3)).

      The Foxes argue, though, that rule 1.442(c)(4)’s “indirect liability”

exception to rule 1.442(c)(3)’s apportionment requirement applies because the two

Fox couples were treated as one plaintiff entity throughout the litigation. Rule

1.442(c)(4) excuses the apportionment requirement when the joint offeror “is

alleged to be solely vicariously, constructively, derivatively, or technically liable,

whether by operation of law or by contract.” Fla. R. Civ. P. 1.442(c)(4). In that



                                         19
instance, the offeror is not required to apportion its offer between itself and the

other liable party. 

“a joint proposal made by . . . such a party

need not state the apportionment . . . as to that party”). But, rule 1.442(c)(4)’s

exception is applicable only when the alleged liability of the joint offerors is

exclusively indirect as a matter of law, i.e., derivative, vicarious, etc. 

joint proposal sought to settle both couples’ liquidated damages

claims occasioned by Haas’s failure to execute the purchase and sale contracts for

the two auctioned properties. The Foxes do not have any indirect liability for the

Foxes’ own claims against Haas. The Foxes’ reliance upon rule 1.442(c)(4)’s

exception to rule 1.442(c)(3)’s apportionment requirement15 is misplaced, and the

trial court therefore erred in awarding the Foxes attorney’s fees on this basis.

      3. The Foxes’ Request for Admissions16

      As an alternate basis, the trial court found that the Foxes were entitled to

recover attorney’s fees from Haas under Florida Rule of Civil Procedure 1.380(c)


15 Because the Foxes’ joint proposal failed to apportion the settlement demand
between the two Fox couples, we need not, and therefore do not, address whether it
was necessary to apportion the settlement demand between each of the four Fox
plaintiffs. See Cobb v. Durando, 

, 278 (Fla. 2d DCA 2013) (setting
aside an award of attorney’s fees pursuant to a proposal for settlement for failure to
apportion liability between two offerors – spouses in a breach of contract action
against a roofer – as required by rule 1.442(c)(3)).
16 The standard of review of the grant or denial of a request for attorney’s fees
under rule 1.380(c) is abuse of discretion. See Maynoldi v. Archbishop Coleman
F. Carroll High School, Inc., 

, 1150 (Fla. 3d DCA 2011).

                                           20
based on Haas’s denial of certain of the Foxes’ requests for admission. We find

that the trial court did not abuse its discretion in awarding fees on this ground.

      Rule 1.380(c) authorizes the trial court to award expenses, including

attorney’s fees, against a party that fails to admit the truth of a request for

admission made under Florida Rule of Civil Procedure 1.370:

             If a party fails to admit the genuineness of any document or the
      truth of any matter as requested under rule 1.370 and if the party
      requesting the admissions thereafter proves the genuineness of the
      document or the truth of the matter, the requesting party may file a
      motion for an order requiring the other party to pay the requesting
      party the reasonable expenses incurred in making that proof, which
      may include attorneys’ fees. The court shall issue such an order at the
      time a party requesting the admissions proves the genuineness of the
      document or the truth of the matter, upon motion by the requesting
      party, unless it finds that (1) the request was held objectionable
      pursuant to rule 1.370(a), (2) the admission sought was of no
      substantial importance, or (3) there was other good reason for the
      failure to admit.

      Here, during discovery, Haas denied several of the Foxes’ requests for

admission directed at the events that took place at the auction, including Mr.

Wadsworth’s understanding of, and actions at, the auction. Without specifying

which of these denials the trial court was basing its fee entitlement determination

on, the trial court awarded the Foxes attorney’s fees under rule 1.380(c) at the

attorney’s fees hearing.

      In Arena Parking, Inc. v. Lon Worth Crow Ins. Agency, 

,

1113 (Fla. 3d DCA 2000), this Court recognized an important distinction between



                                          21
requests for admission that would resolve the ultimate issues in the case if

admitted, and requests for admission that simply go to establishing a relevant fact

in the case.

This Court held that “expenses incurred by a successful litigant as a result of the

opposing party’s failure to admit requests for admissions may not be assessed

against the opposing party for denying a request to admit a hotly-contested, central

issue to the case” because “to assess attorneys’ fees whenever a party refuses to

admit a fact that is the central issue of fact in the case would render prevailing

party attorneys’ fees the rule, rather than the exception.” 

Arena Parking, Haas argues that all of the subject requests for

admission went to hotly contested issues in the case; hence, the trial court erred in

awarding any fees under rule 1.380(c). We disagree. While, as even the Foxes

conceded and the trial court found below, certain of the subject requests were most

assuredly directed at hotly contested issues, we cannot say that the trial court

abused its discretion in awarding attorney’s fees based on Haas’s denial of at least

some of them.17 We therefore affirm the trial court’s determination that the Foxes

17 Ordinarily, this Court would remand for the trial court to determine upon which
of the denials its entitlement determination was based, and to make an award only
with respect to those denials. See Arena 

(“[W]e
reverse and remand on the attorney’s fee issue for the trial court to apportion and
make an award to Arena Parking for those fees and expenses which were incurred
in proving the other matters which the defendants should have admitted as
provided under rule 1.380(c).”) (footnote omitted). In light of the parties’
stipulation on the amount of fees given the trial court’s ruling on this issue,

                                          22
are entitled to recover attorney’s fees under rule 1.380(c). Given the parties’

commendable stipulation on the amount of fees awardable based on this particular

finding, the attorney’s fees award should be reduced to $57,500, plus interest.

   III.     Conclusion

       In appellate case number 3D16-1962, we affirm the trial court’s entry of

final judgment in favor of the Foxes and Fisher Auction, concluding that the trial

court’s factual determinations are supported by competent, substantial evidence

and that the court committed no legal error.

       In appellate case number 3D16-173, we affirm the trial court’s

determination that the Foxes are entitled to recover attorney’s fees from Haas only

under rule 1.380(c); we reverse those parts of the attorney’s fees judgment

awarding attorney’s fees pursuant to the purchase and sale contracts and the Foxes’

proposal for settlement. Pursuant to the parties’ stipulation on amount, we remand

with instructions that the attorney’s fees award be reduced to $57,500, plus

interest.

       In appellate case number 3D16-174, we affirm the trial court’s

determination that Fisher Auction is entitled to recover attorney’s fees from Haas

only pursuant to Fisher Auction’s proposal for settlement; we reverse that part of

the attorney’s fees judgment awarding attorney’s fees pursuant to the purchase and


however, we find this unnecessary.

                                         23
sale contracts. Pursuant to the parties’ stipulation on amount, we remand with

instructions that the attorney’s fees award be reduced to $33,635.50, plus interest.

      Affirmed in part, reversed in part, remanded with directions.




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