Trace Elements v. Mackensen: Florida Supreme Court Requires Apportionment Even for Spouses With a Single Claim

On July 2, 2026, the Florida Supreme Court decided Trace Elements, Inc. v. Mackensen and held that Florida Rule of Civil Procedure 1.442(c)(3) requires apportionment of a joint proposal for settlement even when the proposal concerns a “unified, single claim” ¹. The Court quashed the Fourth District’s decision and approved the Second District’s approach in Cobb v. Durando ¹². For counsel who use proposals for settlement to set up mediation and trial, the message is that the apportionment requirement has no case-by-case exceptions.

The facts

Wolfgang and Nadja Mackensen, who are married, engaged the design firm Trace Elements to manage the renovation of a Vero Beach home they rent to vacationers ¹. When the firm left the project before finishing, the couple sued for breach of contract and unjust enrichment, and the company counterclaimed ¹.

Before trial, the Mackensens served a proposal offering to accept a lump sum of $10,000 from Trace Elements in full settlement, with mutual dismissals ¹. Trace Elements rejected it, and the jury awarded the Mackensens $41,273.70 on their contract claim ¹. Section 768.79 generally entitles a plaintiff to fees when the defendant rejects a demand and the plaintiff recovers a judgment at least 25 percent greater than the offer ¹. The trial court nonetheless denied fees because the proposal did not allocate the $10,000 between the two spouses ¹.

The Fourth District reversed, reasoning that a joint proposal on a unified, single claim did not need apportionment ¹. That conflicted with Cobb, where the Second District invalidated an unapportioned proposal by married homeowners against a roofing contractor ¹.

The holding

Writing for the majority, Justice Muñiz explained that Rule 1.442(c)(3) states that “[a] joint proposal must state the amount and terms attributable to each party,” and that a joint proposal is simply one made by or to multiple parties ¹. The Court pointed to a line of precedent that has invalidated unapportioned proposals in many settings, including offers by two plaintiffs, offers to two defendants and cases of purely vicarious liability ¹. In identifying a joint proposal, the Court said, it has never looked beyond the number of parties; the parties’ relationships, theories of liability and the nature of their claims have been irrelevant ¹.

The majority also stressed predictability. Consistent application of the rule lets parties rely on a stable framework instead of guessing whether a statutory purpose will excuse noncompliance ¹. Because the Mackensens’ proposal came from two distinct plaintiffs and did not allocate the lump sum, it was invalid ¹.

The vote was 4 to 3. Chief Justice Couriel and Justices Labarga and Grosshans joined the majority, and Justice Sasso dissented, joined by Justices Francis and Tanenbaum ¹. The dissent argued that the damages of a married couple with an undifferentiated claim could not logically be divided, and cited earlier cases describing joint proposals as “a trap for the wary and unwary alike” ¹. As with any new opinion, the decision was not final until the time to seek rehearing expired ¹.

Practical points for counsel and mediators

• Count the parties, not the claims. If a proposal comes from or goes to more than one party, the majority’s reasoning calls for a stated amount and terms for each one ¹.
• Spouses and co-owners are not an exception. Married plaintiffs with a single contract claim were held to the same rule ¹.
• Audit proposals already served. Fee exposure in pending cases may turn on whether an earlier proposal was properly apportioned, which can shift settlement leverage at mediation.
• Expect the issue to surface in negotiations. Where a proposal’s validity is doubtful, parties often discount the fee claim it supports. A mediator can help both sides test that risk candidly in caucus.

Proposals for settlement remain one of the most effective tools for moving a case toward resolution, but only if they are drafted to survive a challenge. Counsel looking for a Florida Supreme Court Certified Circuit Civil Mediator can check Tony Roca’s live availability and book a mediation by Zoom statewide.