Wolfgang and Nadja Mackensen offered to settle their lawsuit for $10,000. The jury gave them $41,273.70, more than four times what they had been willing to take. Under Florida’s offer-of-judgment statute, section 768.79, they needed to clear their own offer by twenty-five percent, which is to say $12,500. They cleared it by a factor of four. And on July 2, the Florida Supreme Court held, 4–3, that they are entitled to no attorney’s fees at all, because their offer never said which spouse was to receive which part of the ten thousand dollars.
The underlying dispute was a county-court fight over renovations to a vacation rental in Vero Beach. The design firm the couple hired to oversee the work, and later sued, is called Trace Elements, Inc., and the name turned out to be the case. The Mackensens’ proposal failed for a chemist’s reason. It could not be separated into its constituent elements. Trace Elements, Inc. v. Mackensen, No. SC2024-1274 (Fla. July 2, 2026), is now the controlling word on Rule 1.442(c)(3), and the word is the old one. Apportion, always.
Where Watkins left off
In March, this blog covered Watkins v. Corbett, the Second District decision holding that a prevailing home seller lost her fee entitlement because her joint proposal to a married couple never allocated the settlement between the spouses. Watkins expressly disagreed with the Fourth District’s decision in Mackensen v. Trace Elements, Inc., 388 So. 3d 815 (Fla. 4th DCA 2024). That was the decision under review here, which had excused apportionment where two homeowners pressed a single, unified claim for damages under a renovation contract. The March post’s takeaway was blunt. Always apportion, because the bright line admits no exceptions beyond the vicarious-liability carve-out in Rule 1.442(c)(4).
The Supreme Court has now resolved the conflict, and it resolved it in the direction Watkins pointed. The Court quashed Mackensen, approved Cobb v. Durando, 111 So. 3d 277 (Fla. 2d DCA 2013), “to the extent it is consistent with our decision today,” and cited Watkins itself in a single footnote, footnote 3, as persuasive support for rejecting the tenancy-by-the-entireties argument the Second District had turned away twice. The strict side won.
Note who else won. Trace Elements lost the trial comprehensively, with a directed verdict against its tortious-interference counterclaim, nothing on its contract counterclaim, and a $41,273.70 judgment against it. It is also the party the Supreme Court just rescued from a fee award. Section 768.79 does not ask who deserved to prevail; its machinery asks only whether the proposal was built to specification. Here the losing litigant won the fee fight because the winning litigants’ offer was missing one sentence.
“The amount and terms attributable to each party”
The rule’s command is a single sentence. Rule 1.442(c)(3) reads, “A joint proposal must state the amount and terms attributable to each party.” (The version in force when the Mackensens served their offer said “shall state”; the command is the same.) The Mackensens’ proposal instead offered “to accept a total sum of TEN THOUSAND DOLLARS and 00/100 ($10,000.00) from the Defendant/Counter-Plaintiff in full settlement of this action” (one number, two offerors, no allocation).
The majority, per Justice Muñiz, walks a short chain. Section 768.79 “creates the substantive right” to a fee award; Rule 1.442 “provides the method and means of implementing this right,” quoting Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646 (Fla. 2010). And the apportionment sentence is not free-floating rule-craft. It implements section 768.79(2)(b)’s requirement that a proposal name the party making it and the party to whom it is made. Since Allstate Indemnity Co. v. Hingson, 808 So. 2d 197 (Fla. 2002), the Court has read that language to demand party-by-party amounts. That linkage matters because it closes the only recognized escape hatch. Kuhajda v. Borden Dairy Co., 202 So. 3d 391 (Fla. 2016), forgives noncompliance with rule requirements that implement no substantive requirement of the statute. Apportionment, the Court holds, implements one.
From there the opinion is an exercise in refusing distinctions. “To identify a ‘joint proposal’ subject to the rule 1.442(c)(3) apportionment requirement, we have never relied on factors beyond the multiplicity of the parties. The parties’ relationships, theories of liability, or the number or nature of claims have been irrelevant to our application of the rule.” Two offerors make a proposal joint; a joint proposal must apportion; this one did not. And for the objection that a married couple’s undivided claim cannot be sensibly apportioned, the majority reaches for the hardest line in the canon, from Pratt v. Weiss, 161 So. 3d 1268, 1272–73 (Fla. 2015). “Even where no logical apportionment can be made, it is nonetheless required where more than one offeror or offeree is involved.”
In the Court’s words, “We hold that rule 1.442(c)(3) requires apportionment of a joint proposal regarding a unified, single claim.”
The exception that never got a funeral
What the Fourth District had tried deserves a closer look, because its failure is instructive. The panel below did not deny that the proposal was joint. It reasoned from its own precedent, Hall v. Lexington Insurance Co., 895 So. 2d 1161 (Fla. 4th DCA 2005), where an insurer’s unapportioned offer to two homeowners was excused because of the unified, single nature of the homeowners’ claim. Like Hall, the panel said, this was a unified claim, with one lawyer and no conflict of interest between the spouses.
But Hall was an offeree-side case. The apportionment purpose it implicates is the offeree’s ability to evaluate the offer. The Mackensens were offerors, and on the offeror side the Supreme Court had already spoken. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003), held that an offer from multiple plaintiffs must apportion the offer among the plaintiffs. Transplanting Hall across that line put the Fourth District in direct collision with Willis Shaw, and in express conflict with Cobb, which is what brought the case to Tallahassee.
The Supreme Court’s disposition of Hall is a quiet one. There isn’t any. The opinion quashes the decision built on Hall without once writing the name Hall. The Fourth District’s exception was not disapproved so much as buried without a headstone. Practitioners should read that detail as instruction rather than oversight.
Seized of the whole
The dissent deserves more than the usual paragraph, because it is the strongest attack on the (c)(3) line in twenty years. Justice Sasso, joined by Justices Francis and Tanenbaum, starts from what the case actually looked like. A married couple had been countersued as a unit, and their damages went to the jury as a single question (“What are Nadja Mackensen and Wolfgang Mackensens’ damages…”) and came back as a single, undifferentiated number. The couple owned the property as tenants by the entireties, and Florida law is emphatic about what that means. Property so held “belongs to neither spouse individually, but each spouse is seized of the whole.” Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45, 53 (Fla. 2001). There was no his half and her half to state, in the offer or anywhere else. The vows say for richer or for poorer; the rule, as the majority reads it, wants to know which of you is which.
From that footing the dissent makes a clean textual strike. An offer conveying that the full amount is attributable to both spouses as a unit does state “the amount . . . attributable to each party” (the whole amount, to each). On the majority’s contrary reading, “the” becomes “an” (“To hold otherwise converts the word ‘the’ in rule 1.442(c)(3) to ‘an.’”). The dissent then goes after the foundation. The strict-construction line running back through Willis Shaw rests on the derogation canon, a tool built for statutes that displace the common law, and a canon of that pedigree has no business construing a rule of procedure. Rule 1.010 says such a rule should be construed to secure the just, speedy, and inexpensive determination of every action. The precedents demanding apportionment all justified it by the offeree’s need to evaluate the offer independently; here the offeree was a single company facing a single, indivisible claim, with nothing left to evaluate. “We can correct course here, and I would.”
Concede all of it. The dissent’s central objection, that there was nothing coherent to divide, is real, and the majority never actually answers it. No page of the opinion explains what an apportioned entireties offer would mean.
Rules, flaws and all
What the majority offers instead is a theory of why not answering is the right institutional move. It acknowledges the practical force of the Mackensens’ position, then cites Judge Easterbrook’s dissent in Fox Valley & Vicinity Construction Workers Pension Fund v. Brown, 897 F.2d 275, 283–84 (7th Cir. 1990). “Rules have their flaws; loopholes and overbreadth, both producing unpalatable outcomes in the event of unanticipated circumstances, are among them. But whether to have rules (flaws and all) or more flexible standards (with high costs of administration and erratic application) is a decision already made by legislation.” The choice between a rule and a standard was made when the rule was written; a court that carves equitable exceptions case by case has not improved the rule, it has repealed it and replaced it with litigation.
And where the flaw is real, the majority says where the fix belongs. It writes that “we believe the appropriate course is to review the rule and, if a change is warranted, amend its text.” That is not a brush-off; it is the Court’s documented habit. After Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005), forced apportionment even against purely vicariously liable defendants, the Court amended the rule, adopting subdivision (c)(4) in 2010, to undo the intolerable result. In 2022, after the Legislature added section 768.79(6), the Court amended the rule again, stripping the nonmonetary-terms requirement. Strict enforcement first, amendment after. That is how Florida fixes this rule. A (c)(5) for spouses holding an undifferentiated claim practically writes itself. The Mackensens simply do not get it retroactively.
The Court has read its own reviews
None of this is a court blind to the regime’s record. The Court itself, in Gorka, conceded that the statute and rule have “seemingly increased litigation” as parties fight over the validity of offers. It is a device meant to end lawsuits that instead breeds them. Then-Justice Pariente saw this case coming in 2007, writing separately in Campbell v. Goldman, 959 So. 2d 223, 228 (Fla. 2007) (Pariente, J., specially concurring), that “this will not be the last time the Court must clarify the requirements of the rule and statute.” Trace Elements is that next time. By her logic, it will not be the last either. The Third District long ago pronounced the epitaph the dissent now quotes, that joint proposals have become “a trap for the wary and unwary alike.” Pacheco v. Gonzalez, 254 So. 3d 527, 535 (Fla. 3d DCA 2018).
One more entry for the record. At page 11, the slip opinion states that the proposal was invalid under “rule 1.422(c)(3).” There is no rule 1.422. It is a transposition, it will be corrected, and it costs the Court nothing. That is exactly the asymmetry worth noticing in an opinion about drafting errors. The Mackensens’ one-sentence omission, made in a document the rule holds to strict compliance, cost them every fee they earned winning the case.
For the drafters
The practice points are short and absolute.
Apportion every joint proposal, in both directions. The holding arose from married offerors, but the offeree side is no refuge. Lamb long ago invalidated an unapportioned offer served on multiple defendants, and the Court’s favorable citation of Watkins (an offeree-side case) signals, without squarely holding, that the unified-claim argument fares no better in that direction. Nothing in the opinion’s multiplicity-only logic distinguishes the two. Draft as though it does not.
One sentence would have saved this offer. The sentence “$5,000 of the total sum is attributable to Wolfgang Mackensen and $5,000 to Nadja Mackensen” is the entire cost of compliance. Whether the division means anything for entireties property is, after Pratt, beside the point; apportionment is required even where no logical apportionment can be made.
Know what remains open. How spouses with a genuinely unitary claim should split an offer (evenly, by title, by some other convention) the Court never says; it holds only that they must. Hall is unmentioned rather than disapproved, doctrinally gutted but formally standing; do not build anything on it. And the opinion is silent on pipeline cases. Any fee rulings that issued in the Fourth District under Mackensen’s regime between May 2024 and this month are left to sort themselves out on remand practice.
The fine print
The decision is a slip opinion, not final until the rehearing window closes, and subject to revision. The practical-guidance vacuum is real. The Court has told married offerors they must state an allocation without telling them what a legally meaningful allocation of an indivisible claim would be, so the 50/50 recital that now becomes standard is a convention, not an answer. And candor requires saying plainly that the dissent’s core objection was overruled rather than refuted. The majority’s response is institutional (rules are rules, and flawed rules get amended, not excepted), which is a serious answer about who should fix the problem, not a demonstration that the problem is imaginary. If the rules committee takes the invitation, the dissenters may yet prevail by other means, exactly as Lamb’s critics did in 2010.
To finish the chemistry of the case name, the Mackensens’ claim was already an element, irreducible, incapable of further division. The majority’s reply is that the rule does not care what the substance is. Every joint proposal must arrive with its formula written out, even when the notation is artificial. Until the rule is amended, that is the law of Florida. The lesson of Watkins was to apportion. The lesson of Trace Elements is that the Supreme Court means it, four votes to three, even where the division it demands is one the law of marriage says does not exist. Write the sentence anyway. The missing element cost the Mackensens everything the offer was designed to win.
The authorities: Trace Elements, Inc. v. Mackensen, No. SC2024-1274 (Fla. July 2, 2026) (slip op.; not final until the time for rehearing expires); Mackensen v. Trace Elements, Inc., 388 So. 3d 815 (Fla. 4th DCA 2024); Watkins v. Corbett, No. 2D2025-0214, 2026 WL 816637 (Fla. 2d DCA Mar. 25, 2026); Cobb v. Durando, 111 So. 3d 277 (Fla. 2d DCA 2013); Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276 (Fla. 2003); Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005); Pratt v. Weiss, 161 So. 3d 1268 (Fla. 2015); Attorneys’ Title Insurance Fund, Inc. v. Gorka, 36 So. 3d 646 (Fla. 2010); Allstate Indemnity Co. v. Hingson, 808 So. 2d 197 (Fla. 2002); Kuhajda v. Borden Dairy Co., 202 So. 3d 391 (Fla. 2016); Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007); Beal Bank, SSB v. Almand & Associates, 780 So. 2d 45 (Fla. 2001); Hall v. Lexington Insurance Co., 895 So. 2d 1161 (Fla. 4th DCA 2005); Pacheco v. Gonzalez, 254 So. 3d 527 (Fla. 3d DCA 2018); Fox Valley & Vicinity Construction Workers Pension Fund v. Brown, 897 F.2d 275 (7th Cir. 1990) (Easterbrook, J., dissenting); In re Amendments to Florida Rules of Civil Procedure, 52 So. 3d 579 (Fla. 2010) (adopting rule 1.442(c)(4)); In re Amendments to Florida Rule of Civil Procedure 1.442, 345 So. 3d 845 (Fla. 2022) (cited in the Trace Elements dissent); § 768.79, Fla. Stat.; Fla. R. Civ. P. 1.442. Quotations were verified verbatim against the slip opinion and the cited opinions as filed. This post is a sequel to Your Joint Proposal for Settlement Is Probably Defective — And Watkins v. Corbett Confirms It.
John J. Lloyd is a Florida attorney and the creator of the FLexlaw legal research platform.