Opinion
No. 87-1925.
July 20, 1988. Rehearing Denied August 26, 1988.
Appeal from the Circuit Court for Martin County, John E. Fennelly, J.
Leif J. Grazi of Law Offices of Grazi Gianino, Stuart, for appellants/cross appellees.
James E. Knight of James E. Knight, P.A., Stuart, for appellees/cross appellants.
Defendants appeal the assessment of certain deposition costs in a suit for libel and slander involving statements in a newsletter published to condominium unit owners by other unit owners. The litigation appeared to be resolved by the plaintiffs accepting the defendants' offers of judgment. The plaintiffs cross appeal, contesting an order which, among other things, dismissed two counts of the complaint, for tortious interference with contract and an advantageous business relationship, and conspiracy to commit such interference.
In all, three offers of judgment were accepted. Two were designated as made "in full satisfaction of all pending claims", and the third was made "under the terms and provisions of Rule 1.442, Fla.R. Civ.P." The plaintiffs would have the court consider their acceptance of the offers of judgment as only a partial resolution of their claims against the defendants, because the offers did not specify that they included counts that had previously been dismissed. Plaintiffs seek to retain the benefits of their judgment on the counts for defamation, while retaining the claims for tortious interference arising out of the publication, without having sought to preserve that option before the trial court at the time of accepting the offers of judgment.
There is no evidence in the record that such a result was intended, nor do the plaintiffs have the benefit of any favorable fact findings. We recognize that a party is not precluded, as a matter of law, from contending that certain disputes, or disputes between parties, were not resolved by the acceptance of an offer of judgment. See BMW of North America, Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985), rev. denied, 484 So.2d 7 (Fla. 1986). However, we do not consider this case to be applicable here.
For the same reason, we find no error with respect to the other issues raised by the cross appeal, as to Counts III, IV, V and VIII, arising out of the same order of the trial court, and further note that plaintiffs made no effort to amend the complaint as to those counts. See Kay v. Amendola, 129 So.2d 170 (Fla. 2d DCA 1961). We do not address the merits of the order as to any of the counts because we conclude that none of the substantive issues have survived the plaintiffs' acceptance of the offer of judgment.
The cost judgment is supported by the record, except that a charge of $184.50 for the expedited delivery of a deposition was not shown to be useful or necessary. See Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (1981); Schumacher v. Wellman, 415 So.2d 120 (Fla. 4th DCA 1982). In all other respects we find no abuse of discretion in the cost award. See, e.g., State Farm Mutual Automobile Ins. Co. v. Sampaio, 374 So.2d 617 (Fla. 4th DCA 1979); Baker v. Varela, 416 So.2d 1190 (Fla. 1st DCA 1982).
The final judgment and cost judgment are, therefore, affirmed except that the cost judgment is reduced by the sum of $184.50.
DELL, J., concurs.
GUNTHER, J., concurs in part and dissents in part with opinion.
I agree with the majority's resolution of the main appeal. However, I respectfully dissent from their resolution of the cross appeal.
In my opinion, the plaintiffs are not precluded from cross appealing because they accepted the defendants' offers of judgment. In BMW of North America, Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985), rev. denied, 484 So.2d 7 (Fla. 1986), this court held that an offer of judgment is in the nature of a contract and "[a]s such, the construction of a rule 1.442 judgment [offer of judgment] should be governed solely by the language employed by the parties if it is without ambiguity."
In the instant case, three offers of judgment were made by the various defendants and accepted by the plaintiffs. Two offers of judgment state that the offer is made "in full satisfaction of all pending claims." Since Counts VI and VII were dismissed with prejudice, they were no longer "pending claims." Thus, in light of Krathen, I would hold that the plaintiffs can still cross appeal Counts VI and VII by the plain language of those two offers of judgment.
The third offer of judgment by defendants Art Adamson (Adamson) and Paul Brienza (not a party to this appeal) does not specify whether it applies to all claims that the plaintiffs might have against those defendants or whether it solely applies to pending claims at the time of the offer. That third offer of judgment states simply that "under the terms and provisions of Rule 1.442, Fla.R.Civ.P., [defendants Adamson and Brienza] hereby offer that a judgment may be entered herein against them in the amount of FOUR THOUSAND DOLLARS ($4,000)." Ambiguity in a contract is generally construed against the drafter. Finlayson v. Broward County, 471 So.2d 67 (Fla. 4th DCA 1985). An offer of judgment likewise should be construed against the drafter. Defendants Adamson and Brienza could have included in their offer the language that the offer applied to "all claims the Plaintiffs might have." Since they failed to clarify their offer, the offer should be construed in favor of plaintiffs to apply only to those pending claims at the time of the offer. Thus, I would hold that the plaintiffs can cross appeal Counts VI and VII as to defendant Adamson as well.
In reviewing the trial court's dismissal of Count VI and VII, I find that the trial court erred in dismissing Count VI because the complaint contains the necessary allegations to state a cause of action for tortious interference with a contractual or business relationship. See Ethyl Corp. v. Balter, 386 So.2d 1220 (Fla. 3d DCA 1980), rev. denied, 392 So.2d 1371 (Fla. 1981). Furthermore, the trial court erred in dismissing Count VII, because the count alleges a cause of action for civil conspiracy to defame. See Loeb v. Geronemus, 66 So.2d 241 (Fla. 1953). Therefore, I would reverse the dismissal of Counts VI and VII of plaintiffs' complaint.
However, I agree with the majority that the plaintiffs are precluded from Counts III, IV, and V, VIII. Since the plaintiffs failed to amend their complaint on each of these points, they waived their right to appeal. Kay v. Amendola, 129 So.2d 170 (Fla. 2d DCA 1961). Accordingly, I would reverse the cross appeal as to Counts VI and VII only.