See Davis v. Clark, 2021 Fla. App. LEXIS 12220 (Fla. 2d DCA, Aug. 20, 2021).
In Davis, Plaintiff Davis sued Defendant Clark for a breach of oral contract and brought the suit in small claims court. Defendant Clark served a $100 offer of judgement pursuant to § 768.79, Florida Statutes—his offer of judgment did not mention Florida Rule of Civil Procedure 1.442. Defendant Clark prevailed at trial and moved to recover his attorney’s fees and costs. The trial court granted the motion for fees and awarded Defendant Clark his attorney’s fees and costs. Plaintiff Davis appealed.
The appellate court affirmed the trial court’s ruling. The appellate court found that § 768.79, Florida Statutes provides that offers of judgment are available in any civil action for damages. While the small claims rules do not adopt Florida Rule of Civil Procedure 1.442, nothing in § 768.79, Florida Statutes, prohibits a party from serving an offer of judgment. Accordingly, Defendant Clark’s offer of judgment was procedurally proper.
The takeaway: Defendants should become familiar with the small claims rules. If Defendant does not choose to adopt the Rules of Civil Procedure for cases filed in small claims court, Defendant is not subject to the time limitations set forth in Florida Rule of Civil Procedure 1.442, including having to wait until 91 days after suit was filed to serve a proposal for settlement/offer of judgment. Defendant can analyze its case immediately after service and immediately serve an offer of judgment. This is particularly important in small claims cases where the parties are typically forced to a pre-trial conference and mediation very early in the case. However, Defendant should be sure to state that the offer of judgment is pursuant to § 768.79, Florida Statutes, without any mention of Florida Rule of Civil Procedure 1.442.