Florida Supreme Court Oral Argument Transcripts

The following is a real-time transcript taken as closed captioning during the oral argument proceedings, and as such, may contain errors. This service is provided solely for the purpose of assisting those with disabilities and should be used for no other purpose. These are not legal documents, and may not be used as legal authority. This transcript is not an official document of the Florida Supreme Court.

Sandra Frosti v. La Verne Creel

SC07-122

FINAL CASE ON
,
>> ALL RISE.
O YEA, O YEA, O YEA, THE
SUPREME COURT OF FLORIDA IS
NOW IN SESSION.
ALL THOSE HAVING BUSINESS
BEFORE THIS COURT, DRAW NIGH,
GIVE ATTENTION, AND YOU
SHALL BE HEARD.
GOD SAVE THE UNITED STATES,
THE GREAT STATE OF FLORIDA,
AND THIS HONORABLE COURT.
>> GOOD MORNING.
GOOD MORNING.
>> LADIES AND GENTLEMEN, THE
FLORIDA SUPREME COURT.
PLEASE BE SEATED.
>> GOOD MORNING, FRIENDS.
WELCOME TO THE FLORIDA
SUPREME COURT AND THE ORAL
ARGUMENT CALENDAR FOR
TUESDAY, DECEMBER 4th.
THE FIRST CASE THIS MORNING
IS FROSTI v. CREEL.
READY TO PROCEED?
JUSTICE ANSTEAD REMINDED ME
IT'S AN APPROPRIATE CASE FOR
A COOL MORN, -- MORNING.
SO.
>> AND FOR CHRISTMAS, SO.
>> MAY IT PLEASE THE COURT.
I'M WILLIAM CAP TOW I
REPRESENT SANDRA FROSTI THE
PETITIONER HERE AND THE
PLAINTIFF IN THE UNDERLYING
ACTION.
WE ARE HERE TODAY ON
CONFLICT BETWEEN OUR CASE
AND A CASE FROM THE FIFTH
DISTRICT COURT OF APPEALS,
MILLS v. MARTINEZ.
THE TRIAL COURT IN OUR CASE
AND THE APPELLATE COURT IN
OUR CASE DENIED MY CLIENT'S
PLAINTIFF'S MOTIONS FOR
ATTORNEY FEES BASED APAWN
WHAT THE COURT POSES TO BE A
PREMATURE FILING OF THE
FILINGS FOR SETTLEMENT.
>> YOU ARE ARGUING -- OVER
HERE.
YOU ARE ARGUING BOTH THAT
THE FILING WAS NOT PREMATURE
AND THAT EVEN IF IT WAS, THE
SANCTIONS SHOULD NOT BE
TOTALLY DISREGARDING THE
ATTORNEYS' FEES?
>> YES.
WELL, ESSENTIALLY WHAT I'M
ARGUING IS --
>> AS FAR AS THE PREMATURITY,
IT SEEMS LIKE THE, YOUR
ENTITLEMENT TO ATTORNEYS'
FEES DOESN'T ACCRUE UNTIL
THE JUDGMENT, AND I BELIEVE
YOU FILED IT AFTER THE
VERDICT, IS THAT CORRECT?
>> THE PROPOSALS WERE FILED
AFTER THE VERDICT.
>> RIGHT.
>> THE, THE MOTION FOR
ATTORNEYS' FEES, AND COSTS,
THAT'S ONE OF THE CAUTIONARY
NOTES I WANT TO MAKE AND
POINTS THAT I WANT TO MAKE
IS THAT THIS ISN'T A 1.525
CASE.
IT'S ONLY BASED UPON THE
PREMATURE FILING OF THE
PROPOSALS.
WE DID FILE A TIMELY MOTION
FOR ATTORNEY FEES AND COSTS
AFTER THE JUDGMENT WAS
ENTERED IN AN APPROPRIATE
TIME.
>> RIGHT.
I'M ALLUDING TO THE STATUTE
76879 AND THE RULE THAT SAYS
THAT THE OFFER SHALL NOT BE
FILED UNLESS IT IS ACCEPTED
OR UNLESS FILING IS
NECESSARY TO ENFORCE THE
PROVISIONS OF THIS SECTION.
>> AND RIGHT.
>> IT SEEMS TO ME, IT WOULD
NOT BE NECESSARY TO ENFORCE
THE PROVISIONS UNLESS
THEY'RE FILED IN CONJUNCTION
WITH A MOTION FOR ATTORNEYS'
FEES AND YOUR ENTITLEMENT TO
FEES WOULD NOT ACCRUE UNTIL
THE JUDGMENT.
>> AND, I GUESS WE HAVE TO
LOOK AT WHERE WE CAME FROM
FROM THE ROOTS OF 1442 AND
7679 CAME FROM.
THEY CAME FROM FEDERAL RULE
68.
FEDERAL RULE 68 HAS A
PROVISION IN IT THAT TALKS
ABOUT THE ADMISSIBILITY IN
PROCEEDING TO ENFORCE
SANCTIONS.
LIKEWISE, OUR RULE IN
STATUTE BOTH HAVE THAT SAME
KIND OF PROVISION CONTAINED
IN THEM, BUT ADDITIONALLY
THEY HAD THIS OTHER
PROVISION AND IT'S A FILING
REQUIREMENT OR -- IT RELATES
TO FILING OF OF THE PROPOSAL
FOR SETTLEMENT.
I THINK IN MY BRIEF AND WHAT
I WANT TO ARGUE NOW IS THAT
PART OF WHAT WE HAVE TO DEAL
WITH WITH REGARD TO THE
FILING OF THE PROPOSALS AND
THE ENFORCEMENT PROCESS IS
THAT WE NEED TO START WITH
NOTICE TO THE OTHER SIDE.
STOCKMAN v. DOWNS CLEARLY --
>> WE'RE TALKING ABOUT
FILING HERE, NOT SERVICE AND
IT SEEMS LIKE THE STATUTE
AND THE RULE CONTEMPLATE TWO
DIFFERENT TIMES.
YOU SERVE IT WHENEVER YOU
WANT TO SERVE IT AFTER I
THINK 90 DAYS AFTER THE
COMPLAINT IS FILED, BUT YOU
ONLY FILE IT IF AND WHEN IT
BECOMES NECESSARY IT BECOMES
NECESSARY TO ENFORCE THE
PROVISIONS OF THIS SECTION
SO IT FILES IT TWO SEPARATE
TIMES.
>> RIGHT AND WE DIDN'T FILE
IT UNTIL AFTER THE RETURN OF
THE JURY VERDICT.
>> I UNDERSTAND.
>> PARDEN?
>> I UNDERSTAND BUT EVEN AT
THAT POINT IT WASN'T
PREMATURE.
WHY DID YOU NEED TO FILE IT
AFTER THE VERDICT.
>> WELL, IT WAS FOUNDATION
UPON WHICH THE MOTION FOR
ATTORNEY FEES AND COSTS
WOULD BE BASED.
>> WERE YOU ENTITLED TO
ATTORNEYS' FESES AFTER THE
VERDICT?
>> WELL, I WOULD ARGUE YES,
AND I WOULD ARGUE THAT THE
PRIOR RULE AND THE RULE
THAT'S IN PLACE NOW AND THE
2001 VERSION OF THE RULE,
THESE PARTICULAR SECTIONS
ALL RELATE TO, THEY'RE
ACTUALLY IDENTICAL.
THESE PROVISIONS OF THE RULE
HAD NOT CHANGED.
IN 2000, IN THE PRIOR TO
2001 VERSION OF THE RULE, WE
HAD TO DO ALL OF THESE
THINGS WITHIN 30 DAYS OF THE
ENTRY OF THE JUDGMENT,
ALTHOUGH THE REASONABLE TIME
STANDARD WAS IN PLACE, THE
RULE REQUIRED THAT THEY BE
DONE WITHIN 30 DAYS OF THE,
OF THE JURY VERDICT AT THAT
POINT IN TIME.
IT WASN'T TOO EARLY THEN TO
DO T. I DON'T BELIEVE IT'S
TOO EARLY NOW.
YOU'RE WALKING -- TALKING
ABOUT THE MOTION FOR
ATTORNEYS' FEES.
>> NO, I AM TALKING ABOUT
SETTLEMENT.
>> WHY WAS IT NECESSARY
INENFORCE THE TERMS OF THIS
SECTION TO FILE THE OFFER
AFTER THE VERDICT INSTEAD OF
AFTER THE JUDGMENT, WHY IS
THAT NECESSARY?
>> THAT'S WHY THERE'S A
DEPARTURE, THAT'S WHY I'M
TALKING ABOUT TWO DIFFERENT
THINGS, ENFORCEMENT AND
SANCTION.
SECTION G AND SECTION I OF
THE 1.442 SPEAK TO THE ISSUE
OF SANCTION.
FILING IS, IS ADDRESSED
REALLY IN SECTION D.
WHY ARE THERE -- AND THAT'S
WHY I WAS ALLUDING TO
SECTION 68.
WHY DO WE HAVE THIS
ADDITIONAL SECTION?
IS THERE SOME COMPELLING
REASON FOR THIS PARTICULAR
SECTION?
AND I ARGUE THAT THE ONLY
LOGICAL REASON WOULD BE TO
PREVENT THE FINDER OF FACT
FROM UNDERSTANDING WHAT THE
SETTLEMENT OFFERS WERE AND
HOW THAT MIGHT -- WHAT
RAMIFICATIONS THAT MIGHT
HAVE IN A JURY TRIAL ACTION,
I DON'T KNOW.
WHAT RAMIFICATIONS THAT
WOULD HAVE WHETHER YOU HAVE
A JUDGMENT OR NOT YOU ARE
UNDERTAKING TO ENFORCE THE
THE PROPOSAL FOR SETTLEALMENT
AND SANCTIONS IS A DIFFERENT,
A DIFFERENT ISSUE.
YOU NEED A JUDGMENT IN ORDER
TO GET SANTIONS.
YOU NEED A JUDGMENT IN ORDER
TO ADDUCE WHAT THE, QUOTE,
JUDGMENT OBTAINED IS IN THE
ACTION.
SNE SO HOW DO WE SCARE YOUR
ARGUMENT HERE WITH YOUR
PREVIOUS CASES WHERE WE'VE
GONE DOWN THE ROAD OF SAYING
THAT BOTH THE STATUTE AND
THE RULE CONCERNING
ATTORNEYS' FEES ARE IN
DEROGATION OF A COMMON LAW
AND THEREFORE NEEDS TO BE
STRICTLY CONSTRUED?
WE STRICTLY CONTRUE THIS
PARTICULAR STATUTE AND RULE
TSEEMS TO ME THAT YOU HAVE
TO FILE YOUR PROPOSAL AFTER
THE JUDGMENT AS OPPOSED TO
AFTER THE VERDICT SO HOW DO
WE OR FOR LACK OF A BETTER
WORD, GET AROUND THIS
PREVIOUS CASE LAW?
WHICH TALK ABOUT STRICTLY
CONSTRUING THESE STATUTES
AND RULES.
>> WELL, I DON'T THINK YOU
HAVE TO GET AROUND THAT
PARTICULAR CASE LAW.
BECAUSE ONE OF THE PROBLEMS
THAT WE HAVE WITH THIS
PARTICULAR PROVISION WITH
THE WORD NECESSARY, WITH THE
WITH THE ENTIRE PROVISION,
WHEN IT IS NECESSARY TO FILE
FOR ENFORCEMENT AND
SANCTION?
YOU DON'T NECESSARILY NEED A
JUDGMENT TO START THE
PROCESS.
EVEN WITH A VERDICT YOU
COULD HAVE A REMITER OR ANY
KIND OF THINGS THAT HAPPEN
PRIOR TO THE ACTUAL ENTRY OF
THE JUDGMENT, SO WAS IT, I
GUESS, WE REALLY DO HAVE TO
DECIDE WAS IT NECESSARY AT
THAT POINT.
>> AND,, AND IT GOES, I
GUESS THE REASON THAT I'M
SAYING IT, THAT IT, THAT IT
IS NECESSARY, IT GOES ONE TO
THE ISSUE OF NOTICE.
I THINK IN IF YOU'LL BEAR
WITH ME FOR A MOMENT.
AND A 1.525 CASE, THE COURT
SAID, THIS COURT SAID IT IS
NO LONGER ENOUGH FOR THE
PARTIES TO PLEAD THE BASIS
FOR, FOR FEES IN A PRETRIAL
PLEADINGS.
AND THAT'S REFERRING TO DIAZ
v. BROWN AND STOCKMAN, THE
STOCKMAN CASE.
THE ISSUE OF FILING THE
PROPOSAL FOR SETTLEMENT IS
THE EARLIEST JUNCTURE THAT
WE HAVE THAT WE CAN PROVIDE
NOTICE TO THE OTHER SIDE OF
OUR CLAIM.
AND THAT'S REALLY WHAT IT
IS.
IT'S A DUE PROCESS KIND OF
AN ISSUE, AND THAT'S WHEN IT
BECOMES NECESSARY TO FILE
THE PROPOSAL.
>> I THINK YOU ARE CONFUSING
THE FILING OF THE OFFER WITH
THE FILING OF THE MOTION FOR
ATTORNEYS' FEES.
THE NOTICE IS PROVIDED BY
THE MOTION FOR ATTORNEYS'
FEES.
YOU'VE SERVED THE OFFER LONG
BEFORE THIS TIME, SO YOU'RE
NOT GIVING THE PARTY ANYMORE
NOTICE OF THE OFFER THAN YOU
ALREADY HAVE.
IT'S THE NOTICE THAT YOU'RE
GOING TO BE SEEKING
ATTORNEYS' FEES PURSUANT TO
THAT OFFER THAT I THINK
YOU'RE REFERRING TO WHEN YOU
SAY NOTICE TO THE OTHER
PARTY, AND THAT'S PROVIDED
BY FILE AGMOTION FOR
ATTORNEYS' FEES.
>> WE CAN'T PLEAD UNDER
76859 OR 1442, WE CAN'T
PLEAD THAT ISSUE.
IT'S INCUMBENT UPON US TO
PROVIDE THAT NOTICE OF OUR
INTENT TO ENFORCE AS SOON AS
POSSIBLE.
IF --
>> ISN'T THE NOTICE THE
MOTION FOR ATTORNEYS' FEES?
WHY CAN'T YOU JUST FILE THE
MOTION FOR ATTORNEYS' FEES
WITHOUT FILING THE PROPOSAL?
YOU SAY THAT YOU'RE DOING IT
PURSUANT TO A PROPOSAL YOU
HAD SERVED.
>> AND WE'RE LOOKING AT A
VERY COMPRESSED TIMELINE.
WHEN IS THAT APPROPRIATE?
AND, AND IS IT NOT
APPROPRIATE AFTER THE RETURN
OF THE JURY VERDICT?
IS NOT NECESSARY AT THAT
POINT IN TIME?
>> THAT'S MY, JUST, IF YOU
CAN ANSWER MY QUESTION,
WHICH IS AFTER THE VERDICT,
WHY COULDN'T YOU HAVE FILE
ADMOTION FOR ATTORNEYS' FEES
WITHOUT FILING THE PROPOSAL
FOR SETTLEMENT IS SIMPLY
STATING IN THE MOTION FOR
ATTORNEYS' FEES THAT YOU HAD
PREVIOUSLY SERVE ADPROPOSAL
FOR SETTLEMENT ON X DATE AND
THAT PROPOSAL WAS REFUSED?
>> WELL, WE DID THAT HERE
WITHIN SEVERAL DAYS OF -- WE
FILE ADMOTION FOR ATTORNEY
FEES WITHIN SEVERAL DAYS OF
FILING THE PROPOSAL.
IT'S A SHORT INTERVAL IN
TIME, AND THE, THE, IF YOU
DON'T PLEAD IT IN YOUR
PLEADINGS, THEN WHAT BASIS
DO YOU HAVE TO DO IT?
AND THAT'S WHY THE FILING
WAS NECESSARY.
>> MAYBE YOU COULD, COULD
ADDRESS THE SECOND ASPECT,
I'M ACTUALLY WITH YOU ON THE
FIRST ASPECT.
I WAS NOT EVEN SURE WHAT
THIS CASE WAS ABOUT BECAUSE
I REALLY COULDN'T BELIEVE
AFTER A VERDICT THAT FILING
A NOTICE, I MEAN A PROPOSAL
WOULD MAKE A DIFFERENCE BUT
LET'S GET TO THE SECOND PART
OF THIS, WHICH IS THAT WHAT,
WHY, WHAT'S THE BASIS FOR
SAYING THERE SHOULD BE --
TEXAS BE STRICKEN VERSUS --
IT SHOULD BE STRICKEN VERSUS
THE MOTION FOR ATTORNEYS'
FEES SHOULD NOT BE GRANTED?
YOU WANT TO ADDRESS THAT
ISSUE?
>> WELL, THE BASIS --
>> WHAT I'M SAYING, IN OTHER
WORDS YOU COULD SAY WELL THE
REMEDY IF IT'S A PREMATURE
FILE STRIKE IT FROM THE
RECORD BECAUSE I GUESS THE
HARM THAT WAS SOUGHT TO BE
ADDRESSICIDE NOT PERHAPS IN
THE MEDIA THAT $1 MILLION
OFFER OF SETTLEMENT.
IF THAT'S WHAT IT MIGHT'VE
BEEN.
SO WHAT IS -- WHY IS IT, WE
ARE STRICTLY ENFORCING THIS,
WHY IS A PROPER REMEDY NOT
TO SAY THEREFORE IT'S A
DEFICIENT MOTION FOR
ATTORNEYS' FEES BECAUSE THE
NOTICE WAS FILED
PREMATURELY?
OR I GUESS THE OTHER
QUESTION I HAVE IS WOULD
ANYTHING HAVE PRESENTED --
PREVENTED YOU FROM REFILING
IT AFTER THE JUDGMENT WAS
ENTERED.
>> WELL, WE DID BOTH,
ACTUALLYISM WE TO -- WE FILE
ADMOTION TO ATTORNEY FEES
PRIOR TO THE ENTRY OF
JUDGEMENT AND WITHIN 30 DAYS
OF THE ENTRY OF THE
JUDGEMENT.
>> BUT WHAT I'M ASKING YOU
IS AFTER THE JUDGMENT WAS
FILED AND IT WAS CLEAR THEY
WERE SAYING YOU FILED IT TOO
EARLY COULD YOU THEN HAVE
SAID WELL NOW I'LL REFILE
TSTRIKE THE EARLIER ONE AND,
I'LL --
>> WELL, WHAT WE DID
ACTUALLY WAS WHAT JUSTICE
CANTERO BASICALLY INDICATED,
WE, WE ADMITTED IT AS THE
RULE REQUIRES, WE ADMITTED
IT INTO EVIDENCE AT THE
HEARING ON THE MOTION FOR
ATTORNEY FEES AND COSTS.
>> SO DID YOU EVER, DID
ANYONE ARGUE THAT YOU ARGUE
THAT THAT THEN CURED ANY
PROBLEM WITH THE PREMATURE
FILING?
>> WELL, I DON'T BELIEVE IT
WAS A PREMATURE FILING, AND
THAT'S --
>> WELL, ASSUMING IT IS,
ASSUMING IT IS, DID ANYONE
ARGUE THAT BY YOU OFFERING
IT IN EVIDENCE AT THAT TIME
THEREFORE THE, THERE IT WAS
REALLY NO HARM IN THE
SITUATION SO NO NEED FOR THE
SANCTION IF NOT GRANTING
YOUR ATTORNEYS' FEES?
>> CERTAINLY THAT'S WHAT WE
ARGUED.
OUR POSITION S IS CLEAR,
THAT'S WHY WE FILED IT.
WITHIN THE PRECEPTS OF THE
RULE, THE RULE SPECIFICALLY
REQUIRES THAT IT BE ADMIT
UNDER TO EVIDENCE AT THAT
TIME.
AND THAT'S WHY I BELIEVE THE
FILING REQUIREMENT IS
COMPLETELY SEPARATE FROM THE
ADMISSION INTO EVIDENCE
REQUIREMENT.
LET ME GO BACK TO JUSTICE
QUINCE'S QUESTION ON OTHER
CASES, ON HILLIER.
THE AS I UNDERSTAND YOUR
ARGUMENT, THAT CASES HAVE
LANGUAGE IN THE RULE THAT
HAVE A SPECIFIC REQUIREMENT
LIKE THERE'S A SPECIFIC
REQUIREMENT TO MAKE AN OFFER
FOR EACH PARTY, AND WE
ENFORCED THAT REQUIREMENT.
AND FOR 30 DAYS.
WHEREAS IN THIS INSTANCE, IS
IT YOUR ARGUMENT THAT THE
WORD NECESSARY IS AMBIGUOUS?
>> I THINK WHAT IT IS IS
THAT IT'S VAGUE.
>> WELL, VAGUE AND AMBIGUITY
ARE FAIRLY SIMILAR.
>> THEY, THEY ARE SIMILAR
CONCEPTS BUT THEY HAVE
DIFFERENT FORCE AND EFFECT
IN THE LAW.
BUT I TEND TO AGREE THAT, IT,
IT'S A SUBJECTIVE STANDARD.
IT'S NOT A CLEAR DEFINITIVE
STANDARD.
IT'S NOT LATER THAN 45 DAYS
AND NOT EARLIER THAN 45 DAYS
FROM THE COMMENCEMENT.
IT IS NOT --
>> WHAT IS YOUR VIEWS TO THE
REASON THE LEGISLATURE PUT
THAT IN THE STATUTE?
>> WELL, THE ONLY REASON
THAT I CAN, I CAN BELIEVE
THAT THAT PUT IT IN WAS TO
PREVENT THE FINDER OF FACT
FROM FINDING OUT ABOUT
SETTLEMENT OFFERS.
THERE COULD BE NO OTHER
PURPOSE FOR WHATSOEVER AND
AGAIN IT DOES NOT APPEAR IN
THE FEDERAL RULE, AND IN A
JURY TRIAL ACTION I CAN'T
IMAGINE THAT THERE WAS PANY
HARM WHATSOEVER.
IT'S CLEARLY, AND IF, IF IT
WAS A MATERIAL MATTER, A
SANCTION WOULD'VE BEEN
INCLUDED DEFINITE TERMS
WOULD'VE BEEN INCLUDED,
SHALL NOT BE FILED IN,
UNLESS, AND IT, AT THIS
PARTICULAR THING HAPPENED OR
SHALL NOT BE FILED UNLESS A
JUDGMENT HAS BEEN ENTERED OR,
YOU KNOW, WHY DO WE HAVE THE
PROVISION AT ALL?
IT DOESN'T MAKE ANY SENSE TO
HAVE A SEPARATE SECTION THAT
TALKS ABOUT FILING AND A
SEPARATE SECTION THAT TALKS
ABOUT SANCTION.
ADMITTING IT INTO EVIDENCE
FOR SANCTION.
>> SO I TAKE IT YOU AGREE
WITH JUSTICE WELLS THAT IT
WAS AMBIGUOUS.
>> YEAH, I DO AGREE.
>> OKAY.
>> WOULD YOU DISTINGUISH
THEN THE CASES WHERE
SOMEBODY HAS ACTUALLY FILED
IT FOR OTHER REASONS, YOU
KNOW, EARLIER ON, THAT IS IN
THE TWO CASES THAT THE
SECOND DISTRICT ACTUALLY
DECIDES ON, THOSE WERE FILED
FOR OTHER REASONS, NOT,
YOURS IS, YOU SAID, LISTEN,
THAT'S THE FIRST STEP I GOT
MY VERDICT, I'M GOING TO
FILE MY OFFER NOW TO LET
EVERYONE KNOW THAT I'M
SEEKING ATTORNEYS' FEES.
DO YOU SEE A REASON
POLICIWISE OR ANYTHING IN
THE STATUTE OR THE RULE THAT
WOULD HAVE US DISTINGUISH,
SCPUN YOU KNOW, AND HAVE A
SANCTION OR SOMETHING FOR --
YOU KNOW, FOR SOMETHING
WHERE IT IS FILED AT THE
TIME THAT THE OFFER IS MADE?
>> I, I SEE NO FOUNDATION,
IN, IN IN THE RULE OR THE
STATUTE THAT WOULD CREATE
ANY KIND OF PENALTY FOR
DOING T. I THINK THE --
>> AT THAT POINT, IT'S
CERTAINLY NOT NECESSARY.
IN OTHER WORDS, THE CASES
THAT, THE CASES, CLOTURE.
>> CLOTURE.
>> AND THEY ARE SHORTLY
AFTER THE OFFER WAS MADE
BECAUSE THE ATTORNEY SAID,
WELL, I JUST WASN'T
CONFIDENT THAT THAT PERSON,
THAT THE LAWYER WOULD
ACTUALLY ADMIT TO HAVING
RECEIVED IT OR SOMETHING OF
THAT NATURE.
>> RIGHT.
>> DO YOU SEE THAT AS BEING,
A SEPARATE SITUATION OR
WOULD YOU SAY THE BLANKET
RULE IT REALLY DOESN'T
MATTER.
IT CAN BE FILED AT ANY TIME
UNDER ANY CIRCUMSTANCE
WITHOUT ANY SANCTION OR
PENALTY?
>> IT, IT CLEARLY IS A
SEPARATE SITTUATION.
-- SITUATION.
AT THAT POINT IN TIME IN ALL
THE CASES, CLOTURE, BROWNING,
AND EVEN IN MILLS, THE
PARTIES CONCEDED THAT IT WAS
PREMATURE BECAUSE THE TIME
HAD NOT EXPIRED.
THE 30 DAYS HAD, HAD NOT
ELAPSED AT THAT POINT IN
TIME.
IN ORDER FOR, IN ORDER FOR
ENFORCEMENT TO EVEN BE A
POSSIBLE OPTION.
AT THAT POINT IN TIME, THEY
BASE CLAY --, IN EACH OF
THOSE CASES, THEY BASICALLY
CONCEDED THAT IT WAS
PREMATURE.
>> YOU ARE RUN NOTHING TO
YOUR REBUTTAL TIME I WANT
YOU TO BE ABLE TO SAVE YOUR
TIME, WHATEVER YOU WANT TO
USE.
JUST BE AWARE.
>> IT SAYS 2:48 REMAINING?
>> JUSTICE BELL HAS A
QUESTION.
>> YEAH, YOU HAVE A
QUESTION.
>> IF HE WANTS TO RESERVE
HIS TIME, THAT'S FINE.
>> NO, PLEASE.
>> IS IT YOUR POSITION THEN
AT AT WHAT POINT WOULD IT BE
PREMATURE AND SUBJECT TO THE
SANCTIONS IN THIS CASE THE?
DO YOU AGREE OR DISAGREE
THAT FILING IT BEFORE
VERDICT IS INAPPROPRIATE?
>> I DO AGREE THAT IN A JURY
TRIAL, FILING IT BEFORE
VERDICT IS INAPPROPRIATE.
BUT I THINK THERE'S
FOUNDATION IN THE LAW
BECAUSE 76879 SECTION 1 IS,
IS A BIT CONFUSING.
IT, IT RESOLVES THE, THE
ISSUE LATER ON IN THE RULE
BUT IF YOU LOOK -- OR IN THE
STATUTE -- BECAUSE IT SAYS
IF A PLAINTIFF FILES A
DEMAND FOR JUDGMENT, WHICH
IS NOT ACCEPTED BY THE
DEFENDANT WITHIN 30 DAYS,
AND THE PLAINTIFF RECOVERS
THE JUDGMENT IN THE AMOUNT
OF AT LEAST 25 PERCENT
GREATER THAN THE OFFER SHE
OR HE SHALL BE ENTITLED TO
RECOVER A REASONABLE COSTS
AND ATTORNEY FEES INCURRED
FROM THE DATE OF FILING OF
THE DEMAND.
THAT FOUNDATION IN THAT
STATUTE FROM THE DATE OF
FILING, NOT THE DATE OF
SERVICE.
NOW, LATER ON IN THE STATUTE
AND IN THE RULE TSPEAKS TO
THE DATE OF SERVICE.
BUT THE FOUNDATION WOULD BE
THAT YOU, THAT AFTER THE
PROPOSAL EXPIRES THEN YOU
SHOULD BE ABLE TO BASED UPON
THIS SECTION FILE THE
PROPOSAL BECAUSE THAT STARTS
THE CLOCK.
>> BUT, BUT, GO AHEAD.
NEVER MIND.
LET ME LET YOU RESERVE YOUR
TIME.
>> THANK YOU.
>> MR. CHIEF JUSTICE,
MEMBERS OF THE COURT.
GOOD MORNING.
MAY IT PLEASE THE COURT.
MY NAME IS SCOT SAMIS.
I REPRESENT THE RESPONDENT
LA VERNE CREEL.
I JUST WANT TO START BY
TALKING ABOUT THE
FUNDAMENTAL QUESTION.
THE QUESTION IS IS IT
NECESSARY TO FILE A PROPOSAL
FOR SETTLEMENT PRIOR TO
FINAL JUDGMENT.
>> LET'S -- I THINK WHEN YOU
SEE A COURT IS STRUGGLING
WITH IS REALLY REALLY, VERY,
VERY HARSH KIND OF REMEDY,
EVEN IF, YOU KNOW, THE,
EVERYTHING'S OVER.
ALL YOU GOT TO DO IS NOW WE
ARE GOING TO CALCULATE AND
SEE WHAT JUDGMENT IS ENTERED,
AND I THINK THE TENOR OF THE
QUESTIONS ARE COMING OUT,
WHY, WHY IS THAT THE, THE
REMEDY?
WHY IS THAT THE SANCTION?
WHY WOULD IT NOT JUST BE TO
STRIKE IT FROM THE FILE OR
RATHER THAN SAY, YOU KNOW,
GO TO GREAT LENGTHS TO
FOLLOW THIS RULE ALL THE WAY
THROUGH, MAN.
WE DOT OUR Is AND WE CROSS
OUR Ts AND YET WE GET TO THE
END AND ALL OF A SUDDEN, SO
WHERE IN THE RULE DOES IT
SAY THAT THIS OUGHT TO BE
THE SANCTION OR WHY OUGHT
THAT BE, OUGHT THAT BE THE
SANCTION?
>> WELL, I THINK THAT
EVERYBODY IN, IN THE
COURTROOM WHO'S DEALT WITH
THIS ISSUE KNOWS THAT THERE
HAS BEEN A LOT OF DISPARATE
RULINGS THAT HAVE COME OUT
OF THE DCAs OVER THE YEARS,
AND THE ONE MESSAGE THAT HAS
COME FROM THIS COURT LOUD
AND CAREER AND CONSISTENTLY
FOR OVER A DECADE STARTING
THROUGH HILLIER, THROUGH
LAN, AND CAMPBELL DECISION
IS IF YOU DON'T DOT ALL THE
Is AND CROSS ALL THE Ts.
>> BUT ISN'T JUSTICE WELLS
CORRECT ON THAT.
HE IS SAYING THOSE ARE ALL
THINGS LIKE WHO YOU GIVE IT
TO, THE TIME YOU HAVE TO
GIVE IT, AND ISN'T THIS
REALLY A DIFFERENT CATEGORY
AFTER EVERYTHING'S OVER?
I MEAN, THAT'S THE, THE GIST
I'M GATHERING FROM HIS
QUESTION.
>> NOT AT ALL, AND I THINK
THE CAMPBELL CASE IS
PROBABLY THE BEST
ILLUSTRATION, AND CAMPBELL
YOU HAVE A REQUIREMENT.
IN THE STATUTE THAT SAYS YOU
WILL IDENTIFY THE LAW.
AND IF YOU DON'T IDENTIFY
THE LAW, YOU DON'T GET FEES.
NOW LET'S COMPARE THAT TO
THIS SITUATION.
THERE IS A DIRECT STATEMENT
IN HERE WHICH SAYS YOU SHALL
NOT FILE THIS UNTIL IT IS
NECESSARY.
NOW --
>> WHAT -- BUT THE PROBLEM
THAT I HAVE IS THAT
NECESSARY IN, IS VERY
DIFFERENT IN A LOT OF
DIFFERENT CONTEXTS.
AND SO UNLIKE THOSE OTHER
CASES, IN WHICH YOU HAVE A
CLEAR EXPLICIT DIRECTION
WHICH THIS COURT DETERMINED
WAS IT HAD TO BE FOLLOWED
BECAUSE THAT WOULD MAKE THE
PLAYING FIELD EVEN FOR
EVERYBODY BUT HERE YOU HAVE
SOMETHING THAT IS AMBIGUOUS
AS TO WHAT NECESSARY MEANS.
AND SO HOW IN THAT INSTANCE
IS IT FAIR TO THE LAWYERS TO,
TO SAY THAT WE'RE GOING TO
STRICTLY CONSTRUE AND
ENFORCE SOMETHING THAT'S
AMBIGUOUS?
>> WELL, THAT'S EXACTLY WHEN
STRICT CONSTRUCTION IS
REQUIRED.
IF YOU -- FIRST OF ALL, I
CAN THE WORD -- THE WORD
NECESSARY CAN BE AMBIGUOUS
IN CERTAIN CONTEXTS BUT HERE
WHEN CLEARLY THE, THE
BENCHMARK FOR HAVING EVEN A
RIGHT TO GO FOR FEES IS A
FINAL JUDGMENT, THAT CREATES
THE, THE MOMENT OF
NECESSITY.
AND THE REASON I THINK IT,
IT'S REASONABLE TO, TO, TO
PRESUME THAT THE LEGISLATURE
WHEN IT PUT THIS ADDITIONAL
PROVISION IN THERE, IT SAYS
IT'S NOT, IT'S NOT SUPPOSED
TO COME INTO EVIDENCE.
WE UNDERSTAND THAT BUT THEY
GO THE EXTRA STEP AND SAY WE
DON'T WANT THESE IN THE
COURT FILE.
>> BUT IT SEEMS TO ME THAT
WHEN ALL OF THIS CAME DOWN,
OF COURSE, WE DIDN'T HAVE
THIS PROBLEM BEFORE THE
LEGISLATURE SET UP THE 25%
LOTTERY TYPE OF, OF LEGAL
FEES.
WHEN THAT WAS DONE, IT SEEMS
TO ME THAT THE LEGISLATURE
WAS CONCERNED ABOUT THE FACT
THAT THIS WAS SOMETHING NEW
AND YOU DIDN'T AND THERE WAS
A GREAT DEAL OF CONCERN
ABOUT WHETHER IT WAS GOING
TO GET PUBLISHED.
AND WHETHER IT WOULD, THE
JURY WAS GOING TO FIND OUT
ABOUT IT.
AND SO THAT SEEMS TO ME TO
BE THE REASON THAT THAT GOT
IN THE STATUTE.
BUT WHY ISN'T THAT, I MEAN
THAT THE LEGISLATURE DIDN'T
PUT A SANCTION WITH IT.
AND WHY ISN'T IT THE, MAKE
THE MOST SENSE TO SAY THAT
AFTER THE FACT FINDER, WHICH
THE CONCERN IS THAT ONLY THE
FACT FINDER KNOW WHAT THE
OFFER OF JUDGMENT IS, AFTER
THE FACT FINDER LIQUIDATES
THE AMOUNT OF DAMAGES, AND
WE'RE GETTING TO A POINT
WHERE WE'RE GOING TO HAVE TO
FILE A MOTION AND UNDERSTAND
THAT THIS BUSINESS ABOUT THE
JUDGMENT AND THE VERDICT
DIFFERENCE, BUT AFTER THE,
THE UMENTS AMOUNT'S
LIQUIDATED, THEN FILE THE
OFFER OF JUDGMENT SO THAT
THE, YOU CAN THEN FILE, HAVE
IT PART OF THE MOTION AND
ALL OF THAT CAN BE
CONSIDERED BY THE COURT.
OTHERWISE, YOU END UP WITH
AN INSTANCE IN WHICH YOU
HAVE TWO JUDGMENTS, A
JUDGMENT FINAL JUDGMENT AND
THEN A JUDGMENT FOR
ATTORNEYS' FEES.
IT SEEMS TO ME IT WOULD BE A
WHOLE LOT BETTER FOR
APPELLATE PURPOSES JUST TO
HAVE ONE JUDGMENT.
>> WELL, I THINK THE TWO-STEP
PROCESS WORKS FOR ATTORNEYS'
FEES IN A LOT OF CASES, BUT
I THINK THAT YOU CAN'T
IGNORE THE FACT THAT THE
LEGISLATURE FOR WHATEVER
REASON PUT IT IN.
THE ONLY OTHER REASON I CAN
THINK OF IS JUSTICE QUINCE
TALKED ABOUT THE POSSIBILITY
THAT AFTER A VERDICT, YOU
COULD HAVE A REMITER OR A
MOTION FOR A NEW TRIAL AND
THAT THERE MIGHT, IT NEVER,
THE JUDGMENT DOESN'T GETS
ISSUED AND I GET THE --
GUESS THE OTHER ISSUE OF IT
IS PRESS ASPECT AND NOT TO
HAVE A PROPOSAL FOR
SETTLEMENT IN THE COURT
FILE.
THE OJ WAS FILE AFRD THE
VERDICT.
THERE WAS NO MOTION FILED
AFTER THE PROPOSE.
>> LET ME ASK YOU, THE
INTERPLAY OF WHEN YOU FILE
NOW FOR ATTORNEYS' FEES AND
I THINK WE ARE GETTING AT
SOMETHING AS TO WHETHER THE
LEGISLATURE, WHAT THEY
INTENTED AND MAYBE
SPECULATED A LITTLE BIT AND
MAYBE INTERPRET NECESSARY.
IF UNDER THE RULE AS MENDED
1.525 YOU CAN FILE YOUR
MOTION NOT, WE NOW SAY NOT
LATER THAN, SO IT WOULD BE
PERFECTLY PERMISSIBLE,
CERTAINLY AFTER THE VERDICT
TO SAY NOW I'M GOING TO BE
SEEKING ATTORNEYS' FEES
PURSUANT TO THE OFFER OF
JUDGMENT STAFFUTE AND --
STATUTE AND I WOULD SUSPECT
IT WOULD ALSO BE PERFECTLY
APPROPRIATE TO INCLUDE
EVERYTHING ABOUT WHY AND
INCLUDE THE, INCLUDE THE
NOTICE, AND I THINK WHAT
JUSTICE WELLS IS SAYING,
WHICH IS THAT AT THAT POINT
THE JUDGE HAS EVERYTHING
BEFORE HIM OR HER AT THE
TIME THE JUDGMENT'S BEING
INWR ANSWERED.
I CAN'T -- I'M TRYING TO
UNDERSTAND AGAIN WHERE THE
NECESSARY LANGUAGE
TRANSLATES INTO IT MUST ONLY
BE AFTER A JUDGMENT IS
ENTERED, THAT'S NUMBER ONE,
AND THEN TWO, RELATED TO HOW
THE SANCTION CAN BE, WHERE
IT'S NOT LIFTED -- LISTED IN
THE STATUTE AND YOU SAY WEIR
SUPPOSED TO DO A STRUCT
CONSTRUCTION OF THE STATUTE
STRIKING, ESSENTIALLY
STRIKING THE MOTION FOR
ATTORNEYS' FEES AND NOT
ALLOWING ATTORNEYS' FEE SOS
SO THAT'S A TWO-PART THING.
WHY NOW SHOULD HE FILE WITH
THE MOTION FOR ATTORNEYS'
FEES WHICH COULD BE DONE AT
ANY TIME EVEN BEFORE A
JUDGMENT, AND TWO, WHY WOULD,
IF THE STATUTE DOESN'T
PROVIDE FOR THE SANCTION
BEING, STRIKING IT FROM THE
RECORD AND NOT ALLOWING
ATTORNEYS' FEES, WHY WOULD
BE IMPOSE THAT AS A
SANCTION.
>> WELL, IT'S CERTAINLY IS
NOT NECESSARY.
IT IS, IT IS NOT NECESSARY
WHEN YOU DON'T EVEN HAVE THE
RIGHT TO GET THE FEES
BECAUSE IF THE TRIGGER IS
THE FINAL JUDGMENT, YOU
DON'T EVEN HAVE A RIGHT TO
FEES.
>> WELL, IN THIS CASE, WHAT,
WHAT POST-TRIAL MOTIONS WERE
FILED?
>> MOTION FOR A NEW TRIAL, I
BELIEVE.
>> MOTION FOR NEW TRIAL HAD
BEEN FILED.
>> YES.
>> IN THIS CASE?
>> YES, AND IT WAS PENDING
WHEN THE PROPOSAL WAS FILED.
>> OKAY.
>> OKAY.
>> WELL, GETTING BACK TO THE
SECOND PART OF JUSTICE
PARIENTE'S QUESTION, YOU
ALLUDED TO CAMPBELL AND HOW
WE HAVE STRICTLY CONSTRUED
THE STATUTE.
IT SEEMS THAT EVEN IN
CAMPBELL, WE WERE TRYING TO
RECONCILE THE PURPOSE BEHIND
ALL OF THESE REQUIREMENTS.
AND IN CAMPBELL THE
REQUIREMENT OF CITING THE
STATUTE WAS TO PUT THE OTHER
SIDE ON NOTICE THAT IF THERE
WAS, THEY WERE GETTING THIS
OFFER AND IF THERE WAS A
JUDGMENT RECOVERED THAT WAS,
LET'S SAY GREATER THAN 25%
OF THAT OFFER, THEN THEY
WERE GOING TO BE LIABLE FOR
ATTORNEYS' FEES AFTER THE
DATE OF SERVICE OF THE
MOTION.
SO CITING THE STATUTES
SERVED A VERY IMPORTANT AND
SPECIFIC PURPOSE OF MAKING
SURE THAT THE OTHER SIDE
KNOWS EXACTLY WHAT THE
STATUTE SAYS AND WHAT THEIR
POTENTIAL LIABILITY FOR
ATTORNEYS' FEES IS.
I'M NOT SURE THAT THE
PURPOSE BEHIND THIS
REQUIREMENT IN THE STATUTE
IS NECESSARILY SERVED BY SAYING
NOW YOU DON'T GET ATTORNEYS'
FEES AT ALL.
IT SEEMS LIKE THERE MAY BE A
LESS DRUCONIAN REMEDY EVEN
IF YOU'RE CORRECT THAT THE
FILING OF THE OFFER WAS
PREMATURE.
AND THAT GOES BACK TO THE
CHIEF JUSTICE'S QUESTION IS
WHY SHOULD THE REMEDY HERE
JUST BE ELIMINATION OF ANY
ATTORNEYS' FEES WHATSOEVER.
ISN'T THERE A LESSER
SANCTION THAT CAN BE
IMPOSED?
>> WELL, IF THERE WERE, IT
CERTAINLY WOULD'VE BEEN
IMPOSED IN CAMPBELL.
IN CAMPBELL YOU HAD 1.422
CITED WHICH CLEARLY MAKES
THIS A CASE FOR SETTLEMENT
AND THE FACT THAT THE
SETTLEMENT WAS LEFT OUT WAS
ENOUGH TO FORFEIT THE FEES.
THE SANCTION FROM EVERY
SINGLE --
>> WASN'T THAT BECAUSE IT
WAS CONSIDERED NOT TO BE A
VALID PROPOSAL THEN?
WASN'T THAT THE BASIS?
>> CORRECT.
>> BUT HERE, I THINK WHAT
JUSTICE CANTERO IS
SUGGESTING IS THAT IF BE
ASSUME UP TO THAT POINT
THERE WAS A VALID SOMETHING
AVALID PROPOSAL, A VALID
OFFER AND IS THERE SOMETHING
THAT CAN BE GO BACK AND
REMOVE IT I THINK IS THE
TENOR OF HIS QUESTION.
>> WELL, I THINK, IF THE, IF
THE, IF THE PENALTY IS
DRUDONIAN, THEN I THINK THE
REMEDY IN CAMPBELL WOULD SAY
WELL WHY DON'T YOU REFILE IT
AND PUT IN 768.79.
THE POINT OF THESE CASES.
>> THAT WAS AVAILABLE IN
CAMPBELL?
>> SURE, THEY COULD'VE DONE
THAT, RIGHT.
>> RIGHT, AND MAYBE THEY
COULD'VE DONE IT HERE, BUT
THAT DIDN'T -- THE
CORRECTION DIDN'T HAPPEN
HERE EITHER.
>> WELL, LET'S GO BACK TO
WHETHER THEY DID OR NOT AND
I SEE AGAIN, ALTHOUGH I
DON'T GO ALONG WITH CAMPBELL
BUT AT SOME POINT WE THINK
WHAT ARE WE SERVING WHEN WE
DO IT BUT THERE IS A VERY
CLEAR DISTINCTION IN MY MIND
ABOUT WHETHER THE OFFER IS
VALID AND YOU CAN'T VALIDATE
IT OFFER AFTER THE FACT BY
SAYING NOW I'LL FILE ANOTHER
OFFER AND EVEN IF THE OFFER
WAS FILED PREMATURITY,
BECAUSE IT -- PRUMERTURETY
BECAUSE IT WASN'T FILED
UNTIL AFTER THE JUDGMENT IT
IS CORRECT THAT IN THIS CASE
WHEN THE MOTION FOR
ATTORNEYS' FEES WAS HEARD
THAT THE OFFER WAS THEN PUT
INTO EVIDENCE?
>> I THINK IT HAPPENED AT
THE HEARING.
BUT IT WAS, IT ALREADY
EXISTED, IT DIDN'T HAPPEN IN
THE 30 OF THE DAY WINDOW
WHERE IT'S SUPPOSED TO
HAPPEN.
IT WAS FILED PREMATURETY
BEFORE THE FINAL JUDGEMENT
AND AND THEN I THINK IT WAS
PRESENTED AT THE HEARING.
>> A MOTION MADE BY THE
OFFER WIN 30 DAYS BUT WHAT I
AM SAYING IS THAT THE POINT
YOU ARE LITIGATING WHETHER
HE HAD THE RIGHT TO
ATTORNEYS' FEES THAT OFFER
GOES IN, HOW DOES ANYTHING
IN THE STATUTE NOT PREVENT
THE JUDGE THEN FROM AWARDING
ATTORNEYS' FEES?
IN OTHER WORDS, IT DOESN'T
MATTER IF IT WAS FILED
PREMATURITY.
IT'S NOW IN EVIDENCE AND
WHAT THE JUDGE NEEDS IN
ORDER TO MAKE A
DETERMINATION IS AS TO
WHETHER THE PERSON'S
ENTITLED TO ATTORNEYS' FEES
IS BEFORE THE JUDGE.
>> THAT'S ABSOLUTELY TRUE,
YOUR HONOR.
BUT THE, BUT THE, THE
RULINGS THAT HAVE COME OUT
OF THIS COURT AND WHAT THIS
COURT HAS SPENT THE LAST 12
YEARS DOING AND SAYING TO
THE DCA --
>> WELL YOU ARE SAYING, WE
KNOW WHAT WE HAVE WRITTEN
BUT THEY ALL HAVE TO DO WITH
WHETHER THE OFFER ITSELF IS
VALID.
>> CORRECT.
BUT WHETHER OR NOT INOFFER
IS VALID OR WHETHER OR NOT
THE ENTITLEMENT TO FEES
ARISICIZE DID THE LAWYERS
BELOW -- ARISES IS DID THE
LAWYERS BELOW FOLLOW ALL THE
PROVISIONS OF --
>> WHAT IF THERE IS A CASE
WHERE THE OFFER IS NOT FILED
WITH THE COURT AT ANY TIME.
IT'S NOT FILED IN A
TRADITIONAL SENSE BUT IT IS
THEN OFFER UNDER TO EVIDENCE
AT THE TIME THE -- OFFERED
INTO EVIDENCE AT THE TIME
THE MOTION FOR ATTORNEYS'
FEES IS HEARD.
WOULD YOU SAY THEN IT IS TOO
LATE TO NOW HAVE -- EVEN
THOUGH THE MOTION IS CLEARLY
IDENTIFIED WITH JUSTICE
CANTERO SAID IT COULD
IDENTIFY THAT IT WAS THE
OFFER WAS MADE IT WAS NOT
ACCEPTED IT WAS A MISAMOUNT.
WOULD THEN THAT BE TOO LATE?
IN OTHER WORDS, IT WAS NOT
FILED AT ALL WITH THE COURT
AT A SEPARATE PLEADING BUT
AT THE HEARING IT IS OFFERED
INTO EVIDENCE?
>> WELL, I THINK IF IT'S
OFFER UNDER TO EVIDENCE AND
ACCEPT UNDER TO EVIDENCE
THEN I THINK IT BECOMES PART
OF THE COURT FILING.
I DON'T THINK --
>> BUT DIDN'T THAT HAPPEN
HERE?
>> YES.
>> ALL RIGHT.
SO, THEN WHAT'S, WHAT'S THE
PROBLEM?
>> THE PROBLEM IS THAT THET
THE RULE WAS VIOLATED.
THE RULE THAT SAYS YOU SHALL
NOT -- IT SAYS SHALL.
YOU SHALL NOT FILE THIS
UNTIL NECESSARY.
>> AND WHY IS -- WHAT SAYS
THE SANCTION IS.
WHERE IS THE THING THAT SAYS
AND IF IT'S FILED
PREMATURITY!!ILY YOU NEVER CAN
GET ATTORNEYS' FEES?
>> THAT HAS BEEN THE
SANCTION THROUGHOUT.
YOU TYPICALLY --
>> YOU DON'T CONCEDE A
DIFFERENCE THAT SOMETHING
THAT GOES TO THE VULIDITY TO
THE OFFER AND SOMETHING THAT
HAPPENS AFTER THE FACT?
>> NO BECAUSE EACH IS AFTER
THE STATUTE.
INTITEMMENT.
ENTITLEMENT OF THE FEE
ARISES FROM THE STATUTE.
ALL THE Is MUST BE DOTTED,
ALL THE Ts MUST BE CROSSED
IN ORDER TO GIVE RISE TO THE
FEE ENTITLEMENT --
>> STRIKE THE, OFFER OF
PROPOSAL AT THE TIME THAT,
IF IT'S FILED PREMATURELY,
WHY ISN'T STRIKING IT JUST
THE APPROPRIATE THING TO DO?
RATHER THAN SAY YOU'RE NOT
ENTITLED TO ATTORNEYS' FEES?
>> BECAUSE, BECAUSE THEN THE
RULE HAS, HAS NO EFFECT.
>> BUT, YOU SEE IT, IT
REALLY GOES BACK TO YOUR
AGREEMENT THAT IF NOTHING
HAD BEEN FILED AND HE WAS IN
COURT WITH HIS MOTION FOR
ATTORNEYS' FEES, AND THEN
OFFERS THE OFFER OF JUNG
JUDGMENT AS PROOF OF WHAT IS
IN THE PROGRESSION FOR --
MOTION FOR ATTORNEYS' FEES,
THAT WOULD'VE BEEN PERFECTLY
FINE.
SO BY STRIKING IT, WHEN IT'S
PREMATURE, YOU'RE BACK TO
THE SAME POSITION.
>> BUT YOU, BUT YOU'VE
ALREADY VIOLATED THE
STATUTE, AND IF WE ARE GOING
TO STRICTLY CONSTRUE THESE
STATUTES AND SAY THAT ANY,
THAT A VIOLATION OF THE
STATUTE CAN FOREGUT-FOOT
YOUR RIGHT TO FEES THE
CONSTRUCTION -- FORFEIT YOUR
RIGHT TO FEES AN AWARD OF
FEES IS IN DEROGATION OF THE
COMMON LAW.
IF THERE IS -- IF YOU DO IS
NOT FOLLOW THE EDICT OF THE
STATUTE THAT CREATES THE
ENTITLEMENT TO FEES THEN YOU
FORFEIT THE RIGHT TO FEES.
>> LET ME ASK THE QUESTION.
IF IT HAD BEEN FILED MORE
THAN TEN DAYS AFTER THE
VERDICT AND THERE WERE NO
MOTIONS FOR NEW TRIAL, WOULD
YOU BE ARGUING THE SAME
THING?
>> I WOULD.
I WOULD BECAUSE I THINK THAT
YOU HAVE TO FOLLOW THE
LETTER OF 768.79 AND 768.79
SETS FINAL JUDGMENT IS THE
BENCHMARK THEN DOING IT
BEFORE IS A VIOLATION.
>> WHAT IS THE POINT OF THAT
STATUTE AGAIN?
>> PARDON ME?
>> I MEAN WHAT IS THE
PURPOSE, WHAT PUBLIC POLICY
IS BEING SERVED BY THAT?
>> I THINK THE, IT'S
TWO-FOLD.
I THINK JUSTICE PARIENTE
ANTICIPATED ONE IS THAT WHEN
THINGS GO INTO THE COURT
FILE IF IT'S A HIGH PROFILE
CASE THEY HAVE A CHANCE TO
BE DISSEMINATED TO THE PRES,
THIS PART ARKANSAS -- PARTY
OFFERED A SETTALMENT TO THE
CASE.
THE OTHER ONE IS THAT WHEN
THE JUDGE IS LOOKING AT
POST-TRIAL MOTIONS THAT
THERE ISN'T AN OFFER OF
JUDGMENT ENTHERE WELL I'M
LOOKING AT REMITER OR
SOMETHING LIKE THAT.
>> BUT IN THIS CASE -- THAT
DOESN'T FILE MY CASE.
NO POST-TRIAL MOTIONS,
YOU'RE WAITING FOR THE FILES
TO BE ENTERED.
THEN THE PROPOSAL OF MOTIONS
ARE FILED UNDER YOUR
ARGUMENT BECAUSE THE
JUDGMENT HAS BEEN ENTERED
THE HARSH SANCTION IS DENIAL
OF THE FEES.
8 IS THAT CORRECT?
>> CORRECT.
AND,.
>> HOW DOES THAT MEET ANY OF
THE RATIONALES THAT YOU JUST
SPOKE TO IN.
>> WELL, WHAT I AM TRYING TO
DO IS TO, GUESS ESSENTIALLY
WHY THE LEGISLATURE PUT IT
IN THERE AND I THINK THAT'S
AN ALTERNATE REASON.
YOU KNOW, ONE REASON IS IT
SHOULDN'T BE IN THERE --
>> WHAT THEY SAID IS UNLESS
NECESSARY, NOT UNTIL
NECESSARY.
THE SANCTION IS IT SHALL NOT
BE FILED UNTIL NECESSARY.
UNLESS IT'S NESSARY AND YOU
AGREE IT'S NECESSARY TO FILE
THE MOTION AND THE PROPOSAL
IN ORDER TO BE ENTITLED TO
THE FEES, RIGHT?
>> CORRECT.
THE WORD EVENTS.
ALL THESE HAPPEN IN A TIME
LIEN SO YOU DON'T, YOU DON'T
HAVE TO FILE IT UNTIL YOU
HAVE THE ENTITLEMENT.
IT'S LIKE SAYING YOU CAN'T
TAKE --
>> IT DOESN'T SAY UNTIL
ENTITLED.
>> WELL, IT SAYS UNLESS.
UNLESS NECESSARY.
WELL IT'S NOT NECESSARY
CLEARLY UNTIL YOU'RE INTITE
LDT.
I MEAN, THE WORD WOULD HAVE
NO MEANING IF, IF WE
INTERPRET IT THAT WAY, THEN
YOU GET TO FILE IT WHENEVER
YOU WANT.
I MEAN, THEN, THEN EVEN
VERDICT DOESN'T MATTER
BECAUSE NOW WE ARE JUST
GOING TO COMPLETELY IGNORE
IT.
>> UNLESS YOU CONSIDER THE
PURPOSE AND THE GENERAL RULE
OF 1.010 OF INTERPRETING THE
CIVIL RULES IS THAT RULES
ARE TO BE CONSTRUED TO
SECURE THE JUST --
INEXPENSIVE DETERMINATION
AND ISN'T IN THAT
CIRCUMSTANCE I HAVE GIVEN
YOU THAT JUST BE AN
INEXTENSIVE DETERMINATION IS
THAT IF THE VERDICT'S BEEN
ISSUED THERE'S NO POST-TRIAL
MOTIONS AND YOU FILE IT EVEN
BEFORE THE JUDGMENT BEING
ENTERED THEN THERE'S NO
HARM?
>> BUT I THINK YOU STILL
HAVE TO HAVE THE STRICT
CONSTRUCTION BECAUSE IT
APPEARS IN THE STATUTE AND
NOT JUST THE RULE.
THE STATUTE HAS TO BE
STRICTLY CONSTRUED BECAUSE
THE STATUTE GIVES
ENTITLEMENT.
IF YOU ARE GOING TO
NECESSARILY GUESS WHY THESE
PROVISIONS ARE IN THERE,
REALLY WE SHOULDN'T BE
GUESSING.
THE REVISION IS THERE, THE
REQUIREMENT IS THERE.
IF YOU DON'T MEAN THE
ENVISION, IN DEROGATION OF
THE COMMON LAW DOES NOT
ARISE.
>> YOU KNOW I GUESS WHAT
BOTHARDS MERE IS A LOT OF
WHAT WAS DONE WITH THE OFFER
OF JUDGMENT.
WHEN YOU SAY WE SHOULDN'T BE
GUESSING ABOUT THE
LEGISLATURE I CAN UNDERSTAND
THAT WE MIGHT NOT GUESS
ABOUT THE LEGISLATURE BUT IT
SEEMS TO ME WE OUGHT TO KNOW
WHY WE PUT IT IN OUR OWN
RULE UNLESS WE WERE JUST
MIMICKING WHAT THE
LEGISLATURE SAID.
SO WE'RE -- THERE'S SEVEN OF
US SAYING -- TO EXACTLY WHY
IT'S IN THE RULE BUT -- IT
BEATS US WHY IT WAS IN THE
RULE BUT IF IT'S IN THE RULE
AND HAS SOME SPECIFIC
PURPOSE MAYBE BUT SOME --
PUT SOME SANCTION WITH IT.
SO WHAT IS, WHAT'S YOUR
ANSWER TO THAT?
>> WELL, I'LL CONFESS THAT I
DON'T KNOW THE ORDER.
I DON'T KNOW IF THE RULE
MIMICKED THE STATUTE OR IF
IT WAS THE OTHER WAY.
I PRESUME THE RULE MIMICKED
THE STATUTE AND I THINK
THAT'S PROBABLY WHAT IT WAS.
THERE WAS -- BECAUSE THERE
USED TO BE TWO STATUTES.
USED TO BE 45 STATUTE AND I
THINK THE RULE TRACK TO A
LARGE EXTENT THE FIVE
REQUIREMENTS THAT APPEAR IN
THE STATUTE AS WELL.
THE OFFER OF JUDGMENT
STATUTE AND PROPOSAL OF
JUDGMENT SETTLEMENT FOR RULE
WERE DESIGN TO.
IF WE WERE TO UPHELL HOLD
THE SECOND DISTRICT THAT WE
HAVE ACTUALLY DONE SOMETHING
TO FOSTER THE POLICY OF
ENCOURAGING SETTLEMENT?
>> I THINK IT'S A BARRIER TO
IT AT ALL.
ALL THIS, ALL THAT THIS
DECISION WOULD BE IS JUST
LIKE CAMPBELL.
FOLLOW THE RULE.
PEOPLE WILL STILL MAKE
PROPOSALS, STILL WILL ACCEPT
THEM OR REJECT THEM BASED ON
125% JUDGMENT AND ALL YOU'RE
SAYING IS FOLLOW THE RULE.
FILE THE PROPOSAL FOR
SETTLEMENT AFTER FINAL
JUDGMENT.
AND EVERYTHING IS FINE.
AND EVERYTHING IS FINE.
I SEE THAT I'M RUNNING OUT
OF TIME.
I WANTED TO TALK ABOUT THE
SECOND ISSUE.
I WOULD URGE THE COURT TO
LOOK AT THE SECOND ISSUE
ABOUT THRESHOLD BECAUSE OF
THE SPLIT.
PUNITIVE AND COMPENSATORY,
BUT I SEE I'M OUT OF TIME
AND I DON'T HAVE AN
OPPORTUNITY TO --
>> THAT ISSUE WAS NOT RAISED
IN THE TRIAL COURT AS TO THE
HOW MUCH WAS OFFERED?
>> YES, IT WAS, YOUR HONOR.
THE, THE SPLIT BETWEEN
COMPENSATORY WAS, WAS AN
ALTERNATE ARGUMENT BOTH AT
THE TRIAL COURT LEVEL AND AT
THE APPELLATE LEVEL.
IT APPEARS IN THE RECORD NE
MEMORANDUM OF LAW.
THANK YOU.
>> ALL RIGHT.
>> THE RULE'S SIMPLY NOT
CLEAR.
THE RULE IS VAGUE.
THE RULE IS AMBIGUOUS.
THE RULE DOESN'T PUT THE
PRACTITIONER ON NOTICE.
>> LET ME ASK YOU SOMETHING.
IF WE DECIDE THAT YOU DID
FILE THIS PREMATURELY BUT WE
ALSO DECIDE THAT THE REMEDY
SHOULDN'T NESSARL BE
STRIKING OF ALL ATTORNEYS'
FEES, WHAT LESSER REMEDY
WOULD YOU ENVISION, WHAT
OTHER SANCTION COULD BE
IMPOSED FOR THE PREMATURE
FILING OF THE OFFER OF
JUDGMENT?
>> WELL, I THINK THAT
STRIKING IT FROM THE RECORD
WOULD, WOULD POTENTIALLY BE
THE, FROM THE, THE DOCKET
WOULD POTENTIALLY BE THE
REMEDY.
BUT THAT REMEDY HAS BEEN,
THAT PROBLEM HAS BEEN CURED
BY THE ADMISSION OF IT INTO
THE RECORD.
IN THE PROCEEDING TO STRIKE
IT MOTION FOR ATTORNEYS'
FEES AND COSTS BUT I DON'T
CONCEDE IT WAS PREMATURE TO
FILE T. THERE'S NOTHING IN
THE RULE THAT SAYS YOU NEED
TO HAVE THE JUDGMENT IN
ORDER TO, TO FILE THE
PROPOSAL FOR SETTLEMENT.
IT SIMPLY BECOMES NECESSARY
TO START THE PROCESS TO
INDICATE TO THE OTHER SIDE
THAT YOUR --
>> IS THERE ANY ARGUMENT --
>> WAS THERE ANY ARGUMENT
THAT YOUR MOTION FOR
ATTORNEYS' FEES POST VERDICT
BUT PRE-JUDGMENT WAS
UNTIMELY FOR SOME REASON?
>> JUST YOUR GENERAL MOTION
FOR ATTORNEYS' FEE 1234S.
>> WHICH WAS UNTIMELY?
>> THAT THEY WERE UNTIMELY,
THEY WERE TOO EARLY, THAT
YOUR MOTION FOR ATTORNEYS'
FEES WAS TOO EARLY, TOO
SOON.
JUST THE PLOSION FOR FEES.
FORGET ABOUT THE PROPOSALS.
>> THE TRIAL COURT --
ALLUDED, DIDN'T SAY TOO SOON
THEY JUST SAID IT WAS
PREMATURE?
STHOO THE FIRST ONE.
>> THE FIRST ONE WAS
PREMATURE.
>> SO THE RULE SUPPORTS WHAT
THE TRIAL JUDGE WAS TALKING
ABOUT WITH REGARD TO THAT?
>> WE, WE, RULE 1.525 SPEAKS
TO IT BUT NONE OF THE CASE
LAW INDICATES THAT THERE'S
ANY TOO SOON FOR FILING THE
PROPOSAL.
ESPECIALLY IF YOU'VE DONE IT
WITHIN THE 30 DAYS THAT'S
REQUIRED BY THE RULE.
>> WITH OUR ASSISTANCE,
YOU'VE USED ALL OF YOUR
TIME.
I THANK YOU VERY MUCH.
WE'LL FAKE YOUR CASE UNDER
ADVISEMENT.
THANK YOU VERY MUCH.
YOU'VE ENLIGHTENED USEN YOUR
POSITIONS.