Watkins v. Corbett, Corbett

              DISTRICT COURT OF APPEAL OF FLORIDA
                        SECOND DISTRICT


                           SMITH L. WATKINS,

                                Appellant,

                                    v.

      RICHARD CORBETT, JENNIFER CORBETT, and BRITANNIA
         BUILDING CONSULTANTS OF PASCO COUNTY, INC.,

                                Appellees.


                            No. 2D2025-0214



                             March 25, 2026

Appeal from the Circuit Court for Hillsborough County; Melissa M. Polo,
Judge.

Raymond T. Elligett, Jr., and Amy S. Farrior of Buell Elligett Farrior &
Faircloth, P.A., Tampa, and James C. Hauser of Attorney's Fees in
Florida, PL, Orlando, for Appellant.

Michael R. Carey and Randall P. Mueller of Carey, O'Malley, Whitaker,
Mueller, Roberts & Smith, P.A., Tampa, for Appellees Richard Corbett
and Jennifer Corbett.

No appearance for Appellee Britannia Building Consultants of Pasco
County, Inc.


NORTHCUTT, Judge.
      Richard and Jennifer Corbett filed a lawsuit against Smith L.
Watkins alleging that Watkins had fraudulently induced them to
purchase her home by failing to disclose known defects. Watkins
prevailed. Here, she challenges the denial of her motion for attorney's
fees that was founded on a joint proposal for settlement she had made to
the Corbetts. We affirm because the proposal did not apportion the
settlement between the parties, as required by Florida Rule of Civil
Procedure 1.442.
      Rule 1.442(c)(3) mandates that "[a] joint proposal must state the
amount and terms attributable to each party." The rule effectuates a
statutory entitlement to attorney's fees in derogation of common law, and
therefore it must be strictly construed and adhered to. See § 768.79,
Fla. Stat. (2023); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d
276, 278 (Fla. 2003); Cobb v. Durando, 111 So. 3d 277, 278 (Fla. 2d DCA
2013).
      The Florida Supreme Court has recognized a single exception to the
requirement of strict compliance with rule 1.442. In Kuhajda v. Borden
Dairy Co. of Alabama, 202 So. 3d 391, 396 (Fla. 2016), the court held
that if attorney's fees are not sought in the pleadings, "an offer of
settlement is not invalid for failing to state whether the proposal includes
attorney's fees and whether attorney's fees are part of the legal claim," as
required by rule 1.442 but not by section 768.79. The court reasoned
that that provision of the rule need not be strictly enforced because it
does not implement a substantive requirement of the statute. Id. at 395-
96.
      That exception does not apply here because the rule provision
mandating apportionment of joint offers implements the statutory
requirement that all parties must be apprised of what they are entitled to

                                      2
receive or what is expected of them in a proposed settlement. In this
regard it is notable that although section 768.79 does not preclude joint
proposals for settlement, the statute expressly contemplates joint
proposals in only one narrow circumstance: under subsection (6), a
property insurer in a breach of contract action is permitted to make a
joint offer that is conditioned on mutual acceptance by all offerees.
Otherwise, the statute refers to the parties in the singular, e.g., "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." § 768.79(1) (emphasis added). Under
subsection (2) of the statute, every offer must:
      (a) Be in writing and state that it is being made pursuant
      to this section.
      (b) Name the party making it and the party to whom it is
      being made.
      (c) State with particularity the amount offered to settle a
      claim for punitive damages, if any.
      (d) State its total amount.
§ 768.79(2) (emphasis added). Considering this language, the supreme
court recognized that "[t]o further the statute's goal, each party who
receive[s] an offer of settlement is entitled . . . to evaluate the offer as it
pertains to him or her." Allstate Indem. Co. v. Hingson, 808 So. 2d 197,
199 (Fla. 2002) (quoting C & S Chems., Inc. v. McDougald, 754 So. 2d
795, 797-98 (Fla. 2d DCA 2000)). The supreme court continued:
"Moreover, the plain language of section 768.79 supports the C & S
court's holding. In subsection (2)(b), the statute refers to 'party' in the
singular. This, we believe, indicates the Legislature's intent that an offer
specify the amount attributable to each individual party." Id.
      Thus, the language of rule 1.442(c)(3) directing that "[a] joint
proposal must state the amount and terms attributable to each party"

                                        3
implements a substantive—and important—requirement of section
768.79. As such, it must be strictly complied with.1
      We reject Watkins's assertion that no apportionment was necessary
in this case because the Corbetts own the home as tenants by the
entireties. Watkins maintains that the law treats a tenancy by the
entirety as a single "entity" and that the Corbetts "filed the Johnson v[.]
Davis suit as tenants by the entirety." For this reason, she contends, she
was not required to apportion the proposal for settlement. This
argument is flawed for several reasons. First, a tenancy by the entirety is
merely a form of property ownership. It has no capacity to sue or be
sued. As such, it could not be a party to the lawsuit. See, e.g., Spradley
v. Spradley, 213 So. 3d 1042, 1045 (Fla. 2d DCA 2017) (observing that
since an estate is not a natural or artificial person, it lacks capacity to
sue or be sued and therefore cannot be a party to a suit); Asociacion De
Perjudicados Por Inversiones Efectuadas En U.S.A. v. Citibank, F.S.B., 770
So. 2d 1267, 1269 (Fla. 3d DCA 2000) (holding that an unincorporated
association lacked capacity to sue); Florida City Police Dep't v. Corcoran,
661 So. 2d 409, 410 (Fla. 3d DCA 1995) (holding that a police
department, as a part of city government, was not itself an entity that
could be sued); Florida Med. Ass'n, v. Spires, 153 So. 2d 756, 757 (Fla.
1st DCA 1963) (holding that the corporate board of a corporation was not
itself an entity subject to suit).




      1 Rule 1.442 contains one exception to the apportionment

requirement that is inapplicable here. Under subsection (c)(4) of the
rule, a joint proposal made by or served on a party who "is alleged to be
solely vicariously, constructively, derivatively, or technically liable" need
not be apportioned.

                                      4
     Indeed, second, Watkins's claim that the Corbetts filed suit as
tenants by the entireties is simply incorrect. The pleadings reflect that
they sued in their individual capacities. Moreover, Watkins's proposal
for settlement was directed to them as such, and it made no mention of
their marital status or the nature of their ownership of the property.
Watkins titled her proposal for settlement DEFENDANT SMITH L.
WATKINS' PROPOSAL FOR SETTLEMENT TO PLAINTIFFS RICHARD
CORBETT AND JENNIFER CORBETT. In Pratt v. Weiss, 161 So. 3d 1268
(Fla. 2015), two defendants co-owned a medical center that was sued for
malpractice. Id. at 1270. The supreme court rejected the defendant co-
owners' argument that they did not need to apportion their proposal for
settlement because they were in effect making an offer as a single entity.
Id. at 1271-72. Among other things, the court found it telling that the
language employed in the defendants' proposal undermined their own
argument:
     [D]espite the assertion that Florida Medical Center was the
     only party in interest, both FMC Hospital and FMC Medical
     sought attorney's fees and costs in a motion the entities filed
     together. FMC Hospital and FMC Medical are repeatedly
     referred to in the motion as "Defendants, FLORIDA MEDICAL
     CENTER." (Emphasis supplied.) The motion is even titled:
     "DEFENDANTS, FMC HOSPITAL, LTD. D/B/A FLORIDA
     MEDICAL CENTER AND FMC MEDICAL, INC. F/K/A FMC
     CENTER, INC. D/B/A FLORIDA MEDICAL CENTER'S
     MOTION FOR ENTITLEMENT TO ATTORNEYS' FEES AND
     COSTS."
Id. at 1272.
     Third, the form of the Corbetts' ownership of the property had no
bearing on the cause of action under Johnson v. Davis, 480 So. 2d 625,
627 (Fla. 1985). The elements of an action based on fraudulent
inducement in a residential real estate transaction are "(1) a false
statement concerning a material fact; (2) the representor's knowledge
                                     5
that the representation is false; (3) an intention that the representation
induce another to act on it; and (4) consequent injury by the party acting
in reliance on the representation." Id. at 627. Significantly, the action
does not even require that the plaintiffs take ownership of the property.
In fact, in Johnson v. Davis, the transaction at issue never closed; the
purchasers sued for rescission of the contract for sale and the return of
their deposit payments. Id. at 626.
     In Cobb v. Durando, 111 So. 3d 277, 278 (Fla. 2d DCA 2013), we
held that married parties were not excused from apportioning their
demand for judgment in their suit against a contractor who performed
roofing services on their home. The plaintiffs argued that their claim
derived from their ownership of the home as tenants by the entireties,
and therefore it was not feasible to apportion the amount attributable to
each party. Id. We rejected this argument for two reasons:
     First, the Durandos' claim against Mr. Cobb did not arise
     directly from their ownership of entireties property. Instead,
     their claim was for the breach of a contract for roofing
     services. Second, the rule requiring apportionment of
     proposals for settlement made by multiple plaintiffs does not
     recognize an exception for joint proposals made by tenants by
     the entireties.
Id. That same reasoning applies here. As the Pratt court stated, "[e]ven
where no logical apportionment can be made, it is nonetheless required
where more than one offeror or offeree is involved." Pratt, 161 So. 3d at
1272–73.
     As can be seen, this court has adhered to the principle that
apportionment under rule 1.442 is a bright line rule. There are no
exceptions for claims brought by tenants by the entireties. For the same
reason, we disagree with the holding in Mackensen v. Trace Elements,
Inc., 388 So. 3d 815, 817 (Fla. 4th DCA 2024), rev. granted, 2025 WL

                                      6
654983 (Fla. Feb. 28, 2025) (SC2024-1274), that two parties who made a
joint proposal for settlement based on their single, unified insurance
claim did not have to apportion damages between them. Notably, the
Mackensen panel did not address its own court's conflicting decision in
Graham v. Peter K. Yeskel 1996 Irrevocable Trust, 928 So. 2d 371 (Fla.
4th DCA 2006). In Graham, the defendants argued that because they
were "sued on a 'single unified claim' directed at their joint ownership of
real property," their unapportioned joint proposal for settlement was
valid. Id. at 372. The Graham court rejected the argument, holding that
the fact "[t]hat the Grahams made their joint proposal for settlement as
tenants by the entireties does not alter the bright line rule." Id.
     We concur with Graham. To the extent that the Fourth District's
holding in Mackensen in the insurance context might be read to apply to
the circumstances of the instant case, we disagree with it.
     Affirmed.

KELLY and LaROSE, JJ., Concur.


Opinion subject to revision prior publication.




                                      7