05-1714 SHOPPES V. SOTOLONGO

State: Florida

Court: Florida Third District Court

Docket No: 05-1714 SHOPPES V. SOTOLONGO

Case Date: 06/07/2006

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2006

SHOPPES OF LIBERTY CITY, LLC, Appellant, vs. ADOLFO SOTOLONGO and DAHYANNA SOTOLONGO, Appellees.

** ** ** ** ** CASE NO. 3D05-1714 LOWER TRIBUNAL NO. 01-11159

Opinion filed June 7, 2006. An Appeal from the Circuit Court for Miami-Dade County, Jerald Bagley, Judge. Roland Gomez and Ronnie Guillen, for appellant. Hunter, appellees. Williams & Lynch, and Christopher Lynch for

Before LEVY and GREEN, JJ., and SCHWARTZ, Senior Judge.

SCHWARTZ, Senior Judge. A defendant in a personal injury action appeals from an order denying its application for attorney's fees and costs

pursuant to unaccepted proposals for settlement under section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442. Although it is not disputed that the circumstances

otherwise entitled the appellant to these fees, 1 the trial judge ruled that the proposals for settlement served on October 22, 2003, were fatally premature as filed "earlier than 90 days after the action [was] commenced" against the defendant. R. Civ. P. 1.442(b). Fla.

This conclusion was based, in turn, on the

determination that although this defendant was first named in the action when the plaintiffs filed a motion to amend the

complaint to add the defendant in accordance with an attached third amended complaint on June 16th, and the court thereafter orally granted the motion on July 17th prior to service on

defendant on July 22nd, the action was not commenced within the meaning of the rule until July 25th

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