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District Court of Appeal of Florida,Fourth District.

QUEST AIR SOUTH, INC., Appellant, v. Marlene WEISMAN, f/k/a Marlene Lusskin, Appellee.

No. 97-3412.

Decided: January 20, 1999

George M. Thomas of the Law Offices of George M. Thomas, P.A., Fort Lauderdale, for appellant. David H. Charlip of David H. Charlip, P.A., Fort Lauderdale, for appellee.

The principal issue on this appeal is whether defendant is entitled to attorney's fees under section 768.79 Fla. Stat. (1997).   Defendant was the prevailing party and had previously served an offer of judgment in the amount of $50, which plaintiff rejected.   In opposing fees the plaintiff argued that such a nominal offer was prima facie in bad faith.   The trial court appears to have accepted that argument, for there is no other evidence of bad faith in this record.   We reverse.

In our recent decision in Fox v. McCaw Cellular Communications of Fla., 23 Fla. L. Weekly D2687 (Fla. 4th DCA Dec.9, 1998), we held that nominal offers are not prima facie evidence of bad faith and that the offeree has the burden of proving that the offer was not made in good faith by evidence reasonably tending to show that fact.   The trial judge in this case did not have the benefit of our opinion in Fox, which was released while this case was on appeal.   We therefore remand for reconsideration in light of Fox.


STEVENSON J., and KROLL, KATHLEEN J., Associate Judge, concur.

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