NJ Appeals Court Says Non-Driving Texters Can Be Liable for Accidents

15862_wpm_lowresIn a brow-raising opinon issued by the Superior Court of New Jersey Appellate Division this week, the court determined that a non-driving sender of text messages can potentially be liable for damages if an accident is caused by a distracted text recipient.  See Kubert v. Best, No. A-1128-12T4, (N.J. Super. Ct. App. Div., August 27, 2013).  In the case, the plaintiffs were injured when a texting teen crossed the median and collided with the plaintiffs’ motorcycle.  The trial court dismissed a claim against the person with whom the teen was texting, a 17 year-old “remote texter,” reasoning that that the remote sender did not have legal duty to avoid sending a text message to a person who is driving.  The appellate court disagreed with the trial court and concluded, under a common law negligence theory, that “a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.”  

The appeals court acknowledged that “one should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving. Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.”  Further, the court said, “We also conclude that liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving.”  Rather, the court said, “Additional proofs are necessary to establish the sender’s liability, namely, that the sender also knew or had special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle.” 

Interestingly, New Jersey’s texting ban makes it unlawful to read or send a text message while driving, so in order to impose liability, the sender would have to know or have reason to know that the recipient is not only driving, but that the driver will break the law and read the message while driving and become distracted.  To that end, the court acknowledged, “The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time.”

The result reached in this case illustrates the difficulty in applying its holding.  Despite finding that a remote texter may potentially be liable, the court found that, in this case, the plaintiffs did not present sufficient evidence of the remote texter’s knowledge.  Because the remote sender had only sent one text while the recipeint was driving, and the contents of the messages were not entered into evidence, there was no proof that the sender knew her message was distracting the recipient from driving. 

In practice, this holding is certain to present interesting proof challenges for plaintiffs in the state with respect to whether someone “has special reason to know” that a driver will be prone to distraction.  The ultimate takeaway from this case is that, if you are texting a person in New Jersey that you know or learn is driving, and that person immediately responds, stop the communication immediately.  Good practice regardless of potential liability.

The full text of the opinion can be found here.

SCOTUS’s DOMA Decision Illustrates Complexities of Appellate Practice

Image This post was contributed by Hallie Fisher, a third-year law student Duke University School of Law and Summer Associate at LDDK&R.

Last month the Supreme Court issued what can only be deemed a landmark ruling, United States v. Windsor, No. 12-307, 2003 WL 3196928 (U.S., June 26, 2013), which held that Section 3 of the Defense of Marriage Act, commonly referred to as “DOMA,” was unconstitutional.  DOMA was enacted in 1996 to ensure, among other things, that states which restricted marriage to opposite-sex couples would not be required to recognize same-sex marriages lawfully performed in other states.  While much of DOMA remains in effect, the Windsor case resulted in the striking of DOMA’s Section 3, which purported to define marriage only as the union between one man and one woman, and prohibited the federal government from recognizing same-sex marriage for purposes of federal law, as unconstitutional.

The definition of marriage adopted by Section 3 was significant because the federal government confers thousands of benefits upon married couples, including: special treatment under the Tax Code, employment and pension benefits, and even support relating to medical privacy and hospital visitation, to name a few.  DOMA effectively denied lawfully-married same-sex couples these benefits.

As with many pivotal cases on civil and social issues (i.e., Roe v. Wade, Loving v. Virginia, and their progeny), what many articles gloss over is just how these cases get before the U.S. Supreme Court.  The Windsor decision started with one person: Edie Windsor, a widow who had legally married her wife, Thea Spyer, in Canada in 2007. Windsor’s and Spyer’s marriage had been recognized as valid under the principle of comity by the state of New York, where the couple was domiciled.  After Spyer passed away in 2009, Windsor was required to pay over $300,000 in estate tax on her late wife’s estate. A widow from an opposite-sex marriage would not have been required to pay this estate tax because under federal law “any interest in property which passes or has passed from the decedent to his surviving spouse” is excluded from taxation.   26 U.S.C. § 2056(a).

Windsor filed suit against the United States in the U.S. District Court for the Southern District of New York. Windsor prevailed on the merits in the District Court, and the IRS was ordered to refund the tax paid with interest. The decision was appealed to the Second Circuit United States Court of Appeals, which affirmed the District Court’s ruling, holding that Section 3 of DOMA violated the equal protection rights granted by the Fifth Amendment.  Before the appeal was heard by the Second Circuit, the Solicitor General of the United States petitioned the Supreme Court for certiorari, which was ultimately granted, and both parties delivered oral arguments in late March of 2013.

The progression of the Windsor case depicts many of the standard aspects of appellate procedure.  However, one unique aspect of the Windsor case is that the federal government did not defend DOMA’s constitutionality. Generally the Department of Justice is tasked with representing the federal government in matters relating to statutes enacted by Congress, such as DOMA.  Here, though, the Department of Justice, at the insistence of President Obama, refused to defend the Act’s constitutionality.  At the same time, the Internal Revenue Service, an executive agency, was enforcing the provisions of DOMA.  As a result of the government’s refusal to defend DOMA, the Bipartisan Legal Advisory Group (BLAG), subsidized by fundraising efforts of the Republicans of the House of Representatives adopted the defense of DOMA, hired counsel to defend DOMA’s constitutionality, and was granted leave to intervene in the case.

BLAG’s defense of DOMA highlights one of the more challenging aspects of appellate practice.  In cases argued before the Supreme Court, and in appeals at all levels, there are often complex or technical legal questions at issue that may ultimately influence whether the case is affirmed or reversed. For instance, although the main issue in Windsor was DOMA’s constitutionality, another significant issue was whether BLAG even had standing to file an appeal.   It is often the job of appellate counsel to help their clients understand that appeals are not always centered around the main issue at trial, and there can be complex issues raised in an appellate proceeding that may subvert a jury verdict or judge’s ruling even though common sense may dictate another result.

Having an attorney who will be able to understand and argue the facts and complexities of a case competently may not be the only concern, though. During the appellate stages of high stakes cases, especially those involving constitutional and social issues, it is common to have interest groups weighing in on both sides of the issue. In Windsor, literally hundreds of amicus briefs were filed on both sides of the issue, with companies like Google, Starbucks, and Aetna supporting Windsor’s case, and many religious organizations supporting BLAG and the constitutionality of DOMA.  In such high stakes cases, it is important to have appellate counsel who will be able to reconcile the client’s individual needs with the public policy considerations of the outcome of the case.  One should never lose sight of the fact that bringing a case before the Supreme Court, which has the potential to change laws that affect individuals throughout the nation, primarily affects the individual parties to the case.

While Windsor was celebrated as a victory, the victory is small in that the decision left open many important issues, such as adoption rights for gay couples, employer treatment of gay couples under federal laws like ERISA, and even protections in the criminal arena. If individuals are affected by the questions Windsor left open, it is important they contact competent counsel positioned to take on such issues. This is especially important since such cases will not only affect the individual petitioners, but could have important precedential value for others who are similarly situated.

Florida Supreme Court Delimits Economic Loss Rule

In a surprising opinion issued today, the Florida Supreme Court has held that the economic loss rule, which for decades has barred tort claims for damages arising out of a contractual relationship, applies only in the products liability context.  Justice Canady’s dissent called this decision a “dramatic unsettling of Florida law.”  However, business litigation practitioners who have struggled with the application of this doctrine when attempting to assert or defend breach of fiduciary and negligence claims against a party in contractual privity will likely welcome the Court’s rescission from the long line of cases that made the doctrine almost as easy to evade as to apply and the certainty that this decision brings.  The Court’s opinion can be viewed at: http://www.floridasupremecourt.org/decisions/2013/sc10-1022.pdf.

Starbucks’ Tip Pooling Practices Found to Violate Massachusetts Law

ImageWhile this blog is largely devoted to Florida appellate cases, as an unabashed coffee junkie, I found the recent decision of the First District Court of Appeal to be particularly compelling, and ripe for mention in this blog.  On November 9, 2012, the United States First Circuit Court of Appeals affirmed the Massachusetts district court’s summary judgment granting the plaintiffs, comprised of a number of former Starbucks baristas, class status and found that Starbucks’ policy of pooling and sharing tips among shift supervisors and baristas violated Massachusetts’ Tips Act, Mass Gen. Laws ch. 149, s. 152A.  After discovery was conducted on damages, the district court entered judgment in favor of the plaintiff class in the aggregate amount of $14.1 million.

At the crux of the appeal was whether Starbucks’ shift supervisors are “wait staff employees” under the Act since the Act states that wait staff employees are not required to share tips with anyone who is not a wait staff employee.  The Tips Act defines “wait staff employee” as persons who serve beverages or prepared food to patrons, or who clear patrons’ tables, and who work in a place where prepared food or beverages are served.  The definition also contains the requirement that the employee have “no managerial responsibility.”

The plaintiffs contended that the baristas were wait staff employees, but that shift supervisors were not, and therefore, shift supervisors should not have shared in tips with the baristas. Because the first two prongs of the statutory definition unquestionably applied to both classes of employees, the question for the court became whether the shift supervisors had “managerial responsibility,” as contemplated by the Tips Act.

Starbucks contended that the shift supervisors, who report to store managers and assistant managers, had supervisory duties over the baristas, but no managerial responsibility.  The plaintiffs asserted that the job descriptions of shirt supervisors included managerial tasks, and that, under the Tips Act, any level of managerial responsibility, no matter how slight, was sufficient to exclude the shift supervisors from the definition of “wait staff employee.”  It didn’t help Starbucks that, in 2004, upon the adoption of the current version of the Tips Act, the Massachusetts Attorney General issued an advisory opinion conspicuously stating that “shift supervisors . . . do not qualify as wait staff employees.”  Advisory 2004/3, An Advisory from the Attorney General’s Fair Labor and Business Practices Division on an Act Protecting the Wages and Tips of Certain Employees.

Starbucks endeavored to raise numerous creative arguments, which the First Circuit rejected “out of hand.” Ultimately, the First Circuit agreed with the plaintiffs’ construction, and affirmed the district court’s judgment against Starbucks.

While Starbucks is the loser of this fight to the tune of $14 million, at the end of the day, the ultimate losers will likely be the very same hourly service employees who brought this suit in the first place.  This case is likely to signal the demise of the “community tip jar,” which customers undoubtedly understand will be shared by those behind the counter regardless of their level of supervisory responsibility.  Whether the Tips Act intentionally or unintentionally impacts the community tip scheme, because of this suit, a significant income supplement for these hourly workers will likely dry up as lawyers for establishments throughout Massachusetts (including Dunkin’ Donuts, which outnumbers Starbucks 10 to 1 in Massachusetts) advise their clients that the risk of the community tip jar is not worth the reward.  Certainly, the workers behind the counter serving their coffee would disagree.

Homestead Tax Exemption Applies to Non-Citizen’s Residence Maintained for Dependents

On October 4, 2012, the Florida Supreme Court issued an opinion holding that non-citizens, lawfully residing in the United States, are entitled to a homestead tax exemption on a residence they occupy with their dependent minor children who are U.S. citizens.  Garcia vs. Andonie, Case No. SC11-554, 37 Fla. L. Weekly S613 (Fla. Oct. 4, 2012). Florida’s homestead tax exemption is provided for in article VII, section 6(a) of the Florida Constitution.  Section 196.031, Florida Statutes, purports to implement the constitutional provision.  However, the Third District held, and the Supreme Court affirmed, that the implementing statute impermissibly narrowed the class of persons who could claim the exemption by requiring that the owner of the property “reside thereon” and make the residence his/her permanent residence or the permanent resident of a dependent.  As the Supreme Court pointed out, the Florida Constitution does not include the “reside thereon” requirement, and states only that the property be maintained as the permanent residence of the owner or a dependent of the owner. 

The Court noted that, while the Legislature is permitted to enact laws regulating the manner of establishing the right to the constitutional homestead tax exception, “it cannot substantively alter or materially limit the class of individuals entitled to the exemption under the plain language of the constitution.”  Id. (citing Sparkman v. State, 58 So. 2d 431 (Fla. 1952)).

The Court concluded that the legal elements required to demonstrate entitlement to the constitutional homestead exemption require a property owner to demonstrate that the owner is maintaining on Florida real property either (1) the permanent residence of the owner or (2) the permanent residence of another legally or naturally dependent on the owner.  The requirement of section 196.031(1) that required property owners to demonstrate that they reside on the property was declared invalid an unenforceable. 

Next, the Court discussed what constitutes a “permanent residence” and cited section 196.012, Florida Statutes, which defines the term for ad valorem taxation purposes.  “‘Permanent residence’ means that place where a person has his or her true, fixed, and permanent home and principal establishment to which, whenever absent, he or she ahs the intention of returning. . . .”  Id.  The Court noted that the statutory definition was consistent with the constitutional context from which it emerged. 

With respect to non-citizens, the Court has long held that those who do not posses the legal right to permanently reside in Florida cannot, as a matter of law, establish their permanent residence on Florida real property.  Id.  (citing Juarrero v. McNayr, 157 So. 2d 79 (Fla. 1963)).  In the instant case, the appellees were Florida property owners who were citizens of Honduras residing in the U.S. on a temporary visa.  They had three minor children, all of whom were U.S. citizens and Florida residents.  Under the authority of article VII, section 6(a) of the Florida Constitution, the Court held that the appellees were entitled to the exemption.  Where non-citizens are residing with dependent children, who are U.S. citizens, in a home they intent to be the permanent residence of those dependent, then the homestead exemption applies.

The Virtuosity of Courts in Adjudicating “Desperation Litigation”

Every once in a while, an opinion comes along that reminds us that our courts routinely deal, not only with seasoned appellate practitioners, but also with inexperienced lawyers and pro se parties, whose conduct must truly tax the patience of the judiciary.  A profound demonstration of an appellate court’s tolerance can be found in a recent opinion of the Second District Court of Appeals.  In Nogales v. Countrywide Home Loans, Inc., No. 2D12-2916, 27 Fla. L. Weekly D2296b (Fla. 2d DCA Sept. 28, 2012), the court put aside what must have been frustration, if not sheer annoyance, with pro se appellant, Susann E. Nogales, and issued a disproportionately-thorough Order on Motion for Reconsideration of Order of Dismissal, affirming the dismissal of Ms. Noglaes’ appeal for failure to timely file a Notice of Appeal.

Florida courts are routinely sympathetic to pro se parties, who may not have the means to afford counsel to represent their interests.  As Judge Gary Farmer on the Fourth District Court of Appeals once said, “I am prepared (from time to time) to excuse noncompliance with technical, procedural rules, and sometimes disregard overly zealous litigation stratagems by pro se parties . . . .”  McAliley v. McAliley, 704 So.2d 611, 613 (Fla. 4th DCA 1997)(Farmer, J. concurring).  However, that sympathy is not boundless and can be exploited.  See id.  With the foreclosure crisis, the courts have seen more and more pro se parties with a lot to lose. The phrase “desperation litigation” comes to mind.

The Nogales case was just such a case involving a foreclosure of a residential property in Lee County.  The lender obtained a final judgment of foreclosure on September 22, 2010.  Several months later, Ms. Nogales filed a motion to vacate the final judgment and request to stay foreclosure sale–both of which were denied by the trial court.  On January 25, 2012, the trial court issued an order directing issuance of a writ of possession.  Ms. Nogales followed that with a “verified motion to vacate the unlawful order issued in chambers on December 8, 2011” and, after that, a “motion of demand for decision on verified motion to vacate the unlawful order issued in chambers on December 8, 2011.”  The latter motion was denied by the trial court on April 2, 2012.

On May 11, 2012, Ms. Nogales filed a notice of appeal attempting to appeal all of the aforementioned orders dating back to September 2010.  To excuse her untimeliness in filing, Ms. Nogales apparently stumbled across the case of Rinas v. Rinas, 847 Sp. 2d 555 (Fla. 5th DCA 2003), which contains, as dicta, the statement that “Therefore, when a final judgment is void from the outset, the requirement to file an appeal within 30 days of rendition of the final judgment does not apply.”  The Rinas case dealt with an appeal of a final judgment that the trial court never had jurisdiction to enter (i.e. the trial court improperly determined issues of custody and child support for a non-party child in connection with a domestic violence injunction against father for the protection of another child).

Notwithstanding the lack of any proof or argument that the trial court lacked jurisdiction to enter the final judgment of foreclosure and the subsequent orders denying relief therefrom, Ms. Nogales made the creative, but unsupported argument that the trial court’s orders were void.  The ever-patient court stated, “If there is some defect in jurisdiction . . . that might conceivably render an order ‘void’ or at least ‘voidable,’ that defect has not been disclosed to us.”  Nevertheless, the court went on to state that, even if it were to assume one or more of the appealed orders was “void,” the time to file an appeal would not be extended.

In granting the appellant’s Motion for Reconsideration, the Second District demonstrated the profound patience the courts continue to show to pro se parties, even those whose conduct arguably arises to the level of vexatious or abusive.

Must Appellate Courts Really Consider Unfiled Briefs?

While it may seem fundamental to the tenets of justice, the Fourth District Court of Appeal issued a written opinion last month holding that an appellate court’s failure to consider the appellee’s answer brief deprives the appellee of procedural due process.  In Oakland Park MRI, Inc. v. USAA Casualty Insurance Co., Case No 4D11-3521, 37 Fla. L. Weekly D1277a (Fla. 4th DCA May 30, 2012), the Circuit Court of Broward County was asked to review, in its appellate capacity, a county court judgment.  The circuit court’s opinion reversed the judgment indicating that the court reviewed a singular brief in the absence of an answer brief.

Interestingly, the Fourth District did not disclose why the circuit court disregarded the answer brief in the first place.  Was it untimely filed?  Was it improperly indexed?  Or did the circuit court simply ignore it?  The opinion arguably leads the reader to conclude the latter.  However, a review of the circuit court docket reveals that the notice of appeal was filed on March 29, 2010.  After several motions for extension, USAA filed its initial brief on October 18, 2010.  On February 8, 2011, the circuit court entered an order to show cause within 10 days why the court should not decide the appeal without an answer brief.  No response to the order to show cause was filed.  The circuit court waited another five months before rendering an opinion on July 11, 2011.  Four days later, on July 15, 2011, Oakland Park finally filed its answer brief along with an emergency motion to vacate opinion and to permit filing of an answer brief.  The Fourth District quashed the opinion without discussing the merits of the emergency motion to vacate.

Interestingly, Oakland Park, the party that effectively prevailed in the Fourth District, has filed a Motion for Reconsideration, which is pending.    Perhaps because the court refused to consider Oakland Park’s argument that the circuit court departed from the essential requirements of law in reversing the county court judgment.

Stay tuned for updates on this curious case to see whether an appellate court really must consider unfiled or untimely-filed briefs before it can render an opinion.

Update:  Oakland Park’s Motion for Reconsideration was denied, and the court has issued its mandate.

Be Wary of the Vague Forum Selection Clause

ImageAnother practice tip emerges from a May 16, 2012 opinion out of Florida’s Fourth District Court of Appeals.  In Lopez vs. United Capital Fund, LLC, 37 Fla. L. Weekly D1176b (Fla. 4th DCA May 16, 2012), the court affirmed a trial court’s refusal to enforce certain forum selection clauses based upon the conclusion that the clauses at issue were “totally unspecific” and did not “tie the selection of a forum to any mutable and identifiable fact.”  The clauses at issue stated, in relevant part:

Each of the parties hereto agrees that any such claim or cause of action shall be tried by a court trial without a jury in Seller’s county and state of choice. . . Buyer agrees that a legal mediation shall take place in county and state of Seller’s choice before any court trial . . . .

United Capital Fund, LLC, filed suit against multiple defendants in Martin County, its home county.  The defendants, who were “Sellers” under the contract, argued that the forum selection clause was valid and enforceable and sought to move the forum to Hillsborough County, their county of choice.  The trial court refused to enforce the forum selection clause.  The appellate court affirmed.

Acknowledging the judicial preference for forum selection clauses to “eliminate uncertainty as to the nature, location and outlook for the forum in which the parties might find themselves,” as quoted in Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986), the appellate court found that the clauses at issue were founded in “total uncertainty.”  The court relied primarily on a Georgia Court of Appeals opinion interpreting a similar provision which set the forum in the “state of choice” of one of the parties.  See Central Ohio Graphics v. Alco Capital Resource, Inc., 472 S.E.2d 2 (Ga. Ct. App. 1996).

The Fourth District distinguished indefinite clauses like the one at issue from enforceable “floating forum” selection clauses, which set forum in a specific, but unidentified location.  The latter will “tie the selection of a forum to [a] mutable and identifiable fact” (i.e., the principal place of business, main office, or headquarters of a party).  The former is based upon the whim of the selecting party, which cannot be determined by the other party and is subject to change at any time. Therefore, the court said, there can be no meeting of the minds at the time of contract.

Accordingly, it is incumbant upon practitioners to understand the subtle distinction between a floating forum clause and an indefinite (and unenforceable) forum selection clause.  Where the location cannot be determined on the face of the contract or by the application of easily discernible facts, the clause will not pass muster.

What Do You Mean By “Fifty Miles”?

A recent case out of Florida’s Fifth District Court of Appeal sets forth an important practice tip for memorializing mediated settlement agreements.  In the case of Tucker v. Liebknecht, Case No. 5D11-681, 37 Fla. L. Weekly D1088a (Fla. 5th DCA, May 4, 2012), the parties, who had a child together but were not married, entered into a Mediated Paternity Agreement (“MPA”) that contained a provision concerning relocation.  The provision stated that “If the parent that the child lives with the majority of the time intends to relocate more than 50 miles from the present home, the parent must obtain permission in writing from the non-residential parent or obtain a prior Court Order of Approval.”  The court’s Final Judgment adopted and ratified the MPA.

Fast forward several years, and the mother, with whom the child is living, decides to relocate to a new home, which, by car, is more than 50 driving miles from her current home.  However, the new home is within a 50 radius of the old home.  The trial court used driving miles to determine that the new home exceeded the 50-mile restriction, and temporarily enjoined the mother from relocating.  The mother appealed contending that the trial court should have used a straight-line test, pursuant to which the new home was within the 50-mile restriction.

The Fifth District agreed with the mother, and determined that the unambiguous language of the MPA could not be rewritten.  “We believe that utilizing a method of measurement other than the straight line method would create uncertainly and generate needless debate.  In the absence of any statutory or contractual provision governing the manner of measurement of distances, the general rule is that distance should be measured along the shortest straight line, on a horizontal plane and not along the course of a highway or along the usual traveled way.”

Since the Fifth District has now taken a definitive position on the issue, Florida practitioners are cautioned to consider and be specific in defining how distances should be calculated in mediated agreements.

Failure to Settle Not “Vexatious” in Fourth District

In a recent opinion by the Fourth District Court of Appeals, the court affirmed a trial court order reducing an award of attorneys fees to a wife because of her refusal to accept a reasonable settlement offer. Hallac v. Hallac, No. 4D10-4450, 37 Fla. L. Weekly D517a (Fla. 4th DCA February 29, 2012). Interestingly, however, the appellate court reversed the trial court’s award of attorney’s fees to the husband for the same conduct. Why? Citing Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997), the court acknowledged that the trial court may consider results obtained in making a fee award pursuant to Fla. Stat. s. 61.16. However, when assessing fees against a party as a sanction, the failure to accept a settlement, without other vexatious conduct, does not justify an award of fees under Chapter 61.

While attorneys’ fees are available in domestic cases based upon a showing of need, financial need is not the only factor to be considered. The Florida Supreme Court has said that, under s. 61.16, the financial resources of the parties are the primary factor to be considered. However, other relevant circumstances to be considered include: 1) the scope and history of the litigation; 2) the duration of the litigation; 3) the merits of the respective positions; 4) whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and 5) the existence and course of prior or pending litigation. Rosen, 696 So.2d at 697.

Prior to Rosen, the First District held in Aue vs. Aue, 685 So. 2d 1388 (Fla. 1st DCA 1997), that “there is no authority for denying attorney’s fees in dissolution cases solely for the failure to accept and offer of settlement,” and bolstered the point by noting that Florida’s offer of judgment statute specifically excluded dissolution of marriage proceedings from its purview. In light of Aue, the Fourth District held that Rosen allowed for a dimunition of a fee award based “uon the results obtained,” and affirmed that part of the trial court’s order. However, with respect to the award of fees to the husband, who made no showing of need under s 61.16, the court held that Rosen did not permit such an award despite the determination that the wife’s refusal to accept the husband’s final settlement offer was so unreasonable that litigation beyond the offer was baseless and without merit.

The Fourth District pointed out that Rosen gives the courts discretion to deny fees to the spouse for vexatious conduct, but stated disagreement with the Fifth District, which has interpreted Rosen as authorizing an award of attorneys fees against a spouse for similar conduct, even where the recipient spouse has the greater ability to pay. (See Elliott v. Elliott, 867 So. 2d 1198 (Fla. 5th DCA 2004)(“We disagree with Elliot to the extent that it suggests that Rosen can be applied to an award of attorney’s fees in favor of the spouse with the greater financial ability to pay.”) The Fourth District acknowledged that an award of fees to the spouse with the greater ability to pay can be granted by the trial court, but not under Rosen. Rather, such fees are awarded under Bitterman v. Bitterman, 714 So. 2d 356 (Fla. 1998), a case that recognized the trial court’s inherent authority to prevent inequitable conduct by awarding fees against a party who has exhibited egregious conduct or acted in bad fatih. To make a fee award under Bitterman, the court must make an express finding of bad faith and include facts justifying the award. Moakly v. Smallwood, 826 So. 2d 221 (Fla. 2002).

Because the trial court in Hallac made no finding of bad faith or other egregious conduct other than the wife’s refusing to accept the final settlement offer, the Fourth District reversed the award of attorney’s fees against the wife in favor of the husband. Practitioners should note: this case distinguishes the analysis required for determining a fee award under Fla. Stat. s. 61.16 from a fee award granted as a sanction for vexatious conduct.