41
Fla. L. Weekly D1487a
Fla. L. Weekly D1487a
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Attorney’s
fees — Proposal for settlement — Identical proposals for settlement made to
owner of vehicle involved in automobile accident and driver of vehicle were
ambiguous and invalid where paragraphs of each proposal made clear that payment
of $20,000 by defendant named in the proposal would settle plaintiff’s claims
against that specific defendant, but another paragraph stated that the proposal
was inclusive of “all damages” claimed by plaintiff — Proposal was ambiguous
because it is unclear whether acceptance and payment of proposal by one of
defendants would resolve case against both defendants or only against the
individual defendant accepting the proposal
fees — Proposal for settlement — Identical proposals for settlement made to
owner of vehicle involved in automobile accident and driver of vehicle were
ambiguous and invalid where paragraphs of each proposal made clear that payment
of $20,000 by defendant named in the proposal would settle plaintiff’s claims
against that specific defendant, but another paragraph stated that the proposal
was inclusive of “all damages” claimed by plaintiff — Proposal was ambiguous
because it is unclear whether acceptance and payment of proposal by one of
defendants would resolve case against both defendants or only against the
individual defendant accepting the proposal
JAIRO RAFAEL NUNEZ AND GABRIEL ROGELIO NUNEZ, Appellants, v.
W. RILEY ALLEN, Appellee. 5th District. Case No. 5D14-4386. Opinion filed June
24, 2016. Appeal from the Circuit Court for Orange County, Donald A. Myers,
Jr., Judge. Counsel: Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A.,
Orlando, for Appellants. W. Riley Allen, of Riley Allen Law, and Simon L.
Wiseman, of The Wiseman Law Firm, P.A., Orlando, and Thomas D. Hall, of The
Mills Firm, P.A., Tallahassee, for Appellee.
W. RILEY ALLEN, Appellee. 5th District. Case No. 5D14-4386. Opinion filed June
24, 2016. Appeal from the Circuit Court for Orange County, Donald A. Myers,
Jr., Judge. Counsel: Elizabeth C. Wheeler, of Elizabeth C. Wheeler, P.A.,
Orlando, for Appellants. W. Riley Allen, of Riley Allen Law, and Simon L.
Wiseman, of The Wiseman Law Firm, P.A., Orlando, and Thomas D. Hall, of The
Mills Firm, P.A., Tallahassee, for Appellee.
(LAMBERT, J.) Jairo Rafael Nunez and Gabriel Nunez
(collectively “Appellants”) appeal from a final judgment awarding W. Riley
Allen (“Appellee”) $343,590 in attorney’s fees and legal assistant’s fees
pursuant to section 768.79, Florida Statutes (2011), and Florida Rule of Civil
Procedure 1.442.1 Concluding that the proposals for
settlement served and filed by Appellee were ambiguous and therefore invalid,
we reverse the final judgment.
(collectively “Appellants”) appeal from a final judgment awarding W. Riley
Allen (“Appellee”) $343,590 in attorney’s fees and legal assistant’s fees
pursuant to section 768.79, Florida Statutes (2011), and Florida Rule of Civil
Procedure 1.442.1 Concluding that the proposals for
settlement served and filed by Appellee were ambiguous and therefore invalid,
we reverse the final judgment.
This case resulted from a motor vehicle accident in which
Gabriel Nunez was operating a vehicle owned by his father, Jairo Nunez, when he
struck a truck owned by Appellee, which was lawfully parked in the street and
unoccupied. Appellee filed a one-count complaint against Appellants, alleging
that Gabriel Nunez negligently operated the vehicle and that Jairo Nunez, as
the owner of the vehicle, was vicariously liable for his son’s negligent
driving. Appellee sought damages for, among other things, the post-repair
diminution in the value of his truck, the cost of the repairs, and the loss of
use of his truck. Appellants jointly answered the complaint.2
Gabriel Nunez was operating a vehicle owned by his father, Jairo Nunez, when he
struck a truck owned by Appellee, which was lawfully parked in the street and
unoccupied. Appellee filed a one-count complaint against Appellants, alleging
that Gabriel Nunez negligently operated the vehicle and that Jairo Nunez, as
the owner of the vehicle, was vicariously liable for his son’s negligent
driving. Appellee sought damages for, among other things, the post-repair
diminution in the value of his truck, the cost of the repairs, and the loss of
use of his truck. Appellants jointly answered the complaint.2
Appellee then served a separate proposal for settlement on
each Appellant pursuant to rule 1.442. The proposal to Jairo Nunez provided:
each Appellant pursuant to rule 1.442. The proposal to Jairo Nunez provided:
1.
This Proposal for Settlement is made pursuant to Florida Statute § 768.79, and
is extended in accordance with the provisions of Rule 1.442, Fla.R.Civ.P.
This Proposal for Settlement is made pursuant to Florida Statute § 768.79, and
is extended in accordance with the provisions of Rule 1.442, Fla.R.Civ.P.
2.
The Proposal for Settlement is made on behalf of Plaintiff, W. RILEY ALLEN, and
is made to Defendant, JAIRO RAFAEL NUNEZ.
The Proposal for Settlement is made on behalf of Plaintiff, W. RILEY ALLEN, and
is made to Defendant, JAIRO RAFAEL NUNEZ.
3.
This Proposal for Settlement is made for the purpose of settling any and all
claims made in this cause by Plaintiff, W. RILEY ALLEN, against defendant,
JAIRO RAFAEL NUNEZ.
This Proposal for Settlement is made for the purpose of settling any and all
claims made in this cause by Plaintiff, W. RILEY ALLEN, against defendant,
JAIRO RAFAEL NUNEZ.
4.
That in exchange for TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) in hand
paid from defendant, JAIRO RAFAEL NUNEZ, Plaintiff agrees to settle any and all
claims asserted against Defendant as identified in Case Number 2010-CA-25627-0,
brought in and for the Circuit Court in and for Orange County, Florida.[3]
That in exchange for TWENTY THOUSAND AND 00/100 DOLLARS ($20,000.00) in hand
paid from defendant, JAIRO RAFAEL NUNEZ, Plaintiff agrees to settle any and all
claims asserted against Defendant as identified in Case Number 2010-CA-25627-0,
brought in and for the Circuit Court in and for Orange County, Florida.[3]
5.
This Proposal for Settlement is inclusive of all damages claimed by Plaintiff,
W. RILEY ALLEN, including all claims for interest, costs, and expenses and any
claims for attorney’s fees.
This Proposal for Settlement is inclusive of all damages claimed by Plaintiff,
W. RILEY ALLEN, including all claims for interest, costs, and expenses and any
claims for attorney’s fees.
Appellee contemporaneously served an identical proposal for
settlement on Co-Appellant, Gabriel Nunez, except that Gabriel Nunez’s name was
substituted in place of Jairo Nunez. Neither Appellant accepted the proposal
for settlement; thus the proposals were considered rejected. See Fla. R.
Civ. P. 1.442(f)(1) (“A proposal shall be deemed rejected unless accepted by
delivery of a written notice of acceptance within 30 days after service of the
proposal.”).
settlement on Co-Appellant, Gabriel Nunez, except that Gabriel Nunez’s name was
substituted in place of Jairo Nunez. Neither Appellant accepted the proposal
for settlement; thus the proposals were considered rejected. See Fla. R.
Civ. P. 1.442(f)(1) (“A proposal shall be deemed rejected unless accepted by
delivery of a written notice of acceptance within 30 days after service of the
proposal.”).
Following a bench trial, the lower court rendered an amended
final judgment in favor of Appellee against both Appellants in the sum of
$29,785.97, reserving jurisdiction to award attorney’s fees.4 Because this award exceeded the
proposal for settlement by more than twenty-five percent,5 Appellee moved to enforce his
proposals for settlement and for a determination that he was entitled to
attorney’s fees under the rule and statute.6 Appellants moved to strike Appellee’s
proposals for settlement, essentially arguing that because paragraph five of
the proposal stated that the monetary settlement was inclusive of all damages
claimed by Appellee, the proposal was ambiguous as to whether acceptance and
payment of one of the $20,000 proposals for settlement would have resolved the
case against both Appellants or only against the individual Appellant accepting
the proposal. Appellants also responded to Appellee’s motion to enforce the
proposals for settlement, arguing that, under the circumstances of the case,
the separate $20,000 proposals for settlement should be considered in the
aggregate, resulting in Appellee failing to meet the monetary threshold for an
award of attorney’s fees under section 768.79(1).
final judgment in favor of Appellee against both Appellants in the sum of
$29,785.97, reserving jurisdiction to award attorney’s fees.4 Because this award exceeded the
proposal for settlement by more than twenty-five percent,5 Appellee moved to enforce his
proposals for settlement and for a determination that he was entitled to
attorney’s fees under the rule and statute.6 Appellants moved to strike Appellee’s
proposals for settlement, essentially arguing that because paragraph five of
the proposal stated that the monetary settlement was inclusive of all damages
claimed by Appellee, the proposal was ambiguous as to whether acceptance and
payment of one of the $20,000 proposals for settlement would have resolved the
case against both Appellants or only against the individual Appellant accepting
the proposal. Appellants also responded to Appellee’s motion to enforce the
proposals for settlement, arguing that, under the circumstances of the case,
the separate $20,000 proposals for settlement should be considered in the
aggregate, resulting in Appellee failing to meet the monetary threshold for an
award of attorney’s fees under section 768.79(1).
The trial court denied Appellants’ motion to strike the
proposals for settlement and granted Appellee’s motion to enforce the
proposals, finding that the proposals for settlement were sufficiently clear
and unambiguous and, thus, valid and enforceable. Following an evidentiary
hearing, at which each side presented expert witness testimony, the trial court
entered the final judgment now on appeal.
proposals for settlement and granted Appellee’s motion to enforce the
proposals, finding that the proposals for settlement were sufficiently clear
and unambiguous and, thus, valid and enforceable. Following an evidentiary
hearing, at which each side presented expert witness testimony, the trial court
entered the final judgment now on appeal.
Appellants raise the following arguments on appeal: (1) the
language contained in paragraph five of the proposals for settlement caused the
proposals to be ambiguous and, therefore, unenforceable; (2) alternatively, if
the proposals for settlement were not ambiguous, then the trial court erred in
not considering them in the aggregate, causing Appellee to fail to meet the
monetary threshold for attorney’s fees; (3) if the proposals for settlement are
otherwise enforceable, Appellee should not be awarded attorney’s fees for
representing himself or, at the very least, should not be awarded attorney’s
fees for services he rendered after Appellee’s co-counsel began representing
him; and (4) the amount of the attorney’s fees awarded for this case was
unreasonable and not supported by competent substantial evidence. We find the
first issue dispositive, and therefore we decline to address the merits of the
remaining issues.
language contained in paragraph five of the proposals for settlement caused the
proposals to be ambiguous and, therefore, unenforceable; (2) alternatively, if
the proposals for settlement were not ambiguous, then the trial court erred in
not considering them in the aggregate, causing Appellee to fail to meet the
monetary threshold for attorney’s fees; (3) if the proposals for settlement are
otherwise enforceable, Appellee should not be awarded attorney’s fees for
representing himself or, at the very least, should not be awarded attorney’s
fees for services he rendered after Appellee’s co-counsel began representing
him; and (4) the amount of the attorney’s fees awarded for this case was
unreasonable and not supported by competent substantial evidence. We find the
first issue dispositive, and therefore we decline to address the merits of the
remaining issues.
“The eligibility to receive attorney’s fees and costs
pursuant to section 768.79 and rule 1.442 is reviewed de novo.” Pratt v.
Weiss, 161 So. 3d 1268, 1271 (Fla. 2015) (citing Frosti v. Creel,
979 So. 2d 912, 915 (Fla. 2008)). As we wrote in Hilton Hotels Corp. v.
Anderson, 153 So. 3d 412 (Fla. 5th DCA 2014):
pursuant to section 768.79 and rule 1.442 is reviewed de novo.” Pratt v.
Weiss, 161 So. 3d 1268, 1271 (Fla. 2015) (citing Frosti v. Creel,
979 So. 2d 912, 915 (Fla. 2008)). As we wrote in Hilton Hotels Corp. v.
Anderson, 153 So. 3d 412 (Fla. 5th DCA 2014):
An
award of attorney’s fees under section 768.79 is a sanction against the
rejecting party for the refusal to accept what is presumed to be a reasonable
offer. Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 222 (Fla. 2003).
Because the statute is penal in nature, it must be strictly construed in favor
of the one against whom the penalty is imposed and is never to be extended by
construction. Id. at 223. Strict construction of section 768.79 is also
required because the statute is in derogation of the common law rule that each
party is to pay its own attorney’s fees. Campbell v. Goldman, 959 So. 2d
223, 226 (Fla. 2007). Because the statute must be strictly construed, a
proposal that is ambiguous will be held to be unenforceable. Stasio v.
McManaway, 936 So. 2d 676, 678 (Fla. 5th DCA 2006). Furthermore, the burden
of clarifying the intent or extent of a proposal for settlement cannot be
placed on the party to whom the proposal is made. Dryden v. Pedemonti, 910
So. 2d 854, 855 (Fla. 5th DCA 2005).
award of attorney’s fees under section 768.79 is a sanction against the
rejecting party for the refusal to accept what is presumed to be a reasonable
offer. Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 222 (Fla. 2003).
Because the statute is penal in nature, it must be strictly construed in favor
of the one against whom the penalty is imposed and is never to be extended by
construction. Id. at 223. Strict construction of section 768.79 is also
required because the statute is in derogation of the common law rule that each
party is to pay its own attorney’s fees. Campbell v. Goldman, 959 So. 2d
223, 226 (Fla. 2007). Because the statute must be strictly construed, a
proposal that is ambiguous will be held to be unenforceable. Stasio v.
McManaway, 936 So. 2d 676, 678 (Fla. 5th DCA 2006). Furthermore, the burden
of clarifying the intent or extent of a proposal for settlement cannot be
placed on the party to whom the proposal is made. Dryden v. Pedemonti, 910
So. 2d 854, 855 (Fla. 5th DCA 2005).
153 So. 3d at 415.
In this case, the threshold question is whether the proposal
for settlement is ambiguous. Our supreme court has told us that, “given the
nature of language, it may be impossible to eliminate all ambiguity” from a
rule 1.442 proposal for settlement. State Farm Mut. Auto. Ins. Co. v.
Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). The dispositive question then
is whether ambiguity in a proposal for settlement reasonably affected the
offeree’s decision to accept the proposal. See id. If so, then the
proposal for settlement is not sufficiently clear and is not enforceable. See
id.
for settlement is ambiguous. Our supreme court has told us that, “given the
nature of language, it may be impossible to eliminate all ambiguity” from a
rule 1.442 proposal for settlement. State Farm Mut. Auto. Ins. Co. v.
Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). The dispositive question then
is whether ambiguity in a proposal for settlement reasonably affected the
offeree’s decision to accept the proposal. See id. If so, then the
proposal for settlement is not sufficiently clear and is not enforceable. See
id.
We agree with Appellants that the language in paragraph five
of the proposals for settlement rendered the proposals ambiguous. Initially,
paragraphs two, three, and four in each proposal for settlement make clear that
payment of $20,000 by the Appellant named in the proposal would settle
Appellee’s claims brought in the case against that specific Appellant. However,
paragraph five then stated that the proposal for settlement was inclusive of
“all damages” claimed by Appellee. As “all damages” claimed arguably are those
that could have been (and were) imposed on both Appellants in this case,
paragraph five of Appellee’s proposal for settlement could be reasonably
interpreted to mean that the acceptance of the proposal for settlement by only
one of the Appellants resolved Appellee’s entire claim against both Appellants.
Put differently, if paragraph five had stated that the proposal was inclusive
of all damages claimed by Appellee against the individually named Appellant,
similar to the language in paragraph three of the proposal, there would have
been no ambiguity.
of the proposals for settlement rendered the proposals ambiguous. Initially,
paragraphs two, three, and four in each proposal for settlement make clear that
payment of $20,000 by the Appellant named in the proposal would settle
Appellee’s claims brought in the case against that specific Appellant. However,
paragraph five then stated that the proposal for settlement was inclusive of
“all damages” claimed by Appellee. As “all damages” claimed arguably are those
that could have been (and were) imposed on both Appellants in this case,
paragraph five of Appellee’s proposal for settlement could be reasonably
interpreted to mean that the acceptance of the proposal for settlement by only
one of the Appellants resolved Appellee’s entire claim against both Appellants.
Put differently, if paragraph five had stated that the proposal was inclusive
of all damages claimed by Appellee against the individually named Appellant,
similar to the language in paragraph three of the proposal, there would have
been no ambiguity.
Although not directly on point, we find the reasoning of our
sister court in Tran v. Anvil Iron Works, Inc., 110 So. 3d 923 (Fla. 2d
DCA 2013), persuasive. In Tran, the plaintiff was injured in an
automobile accident and sued the driver of the other vehicle and his corporate
employer, which owned the vehicle. Tran, 110 So. 3d at 924. During the
course of the litigation, plaintiff tendered separate proposals for settlement
on the individual defendant and on the corporate defendant. Id. Each
proposal was specific as to the one defendant named therein and each stated
that, as a condition of the proposal, the plaintiff would voluntarily dismiss,
with prejudice, any and all claims against the specific defendant named in the
proposal for settlement. Id. Plaintiff attached to the proposal for
settlement a copy of the proposed notice of voluntary dismissal with prejudice
to be filed if the proposal was accepted. Id. However, the attached
dismissal notice named both defendants and indicated that the case would be
dismissed against both defendants. Id. at 924-25.
sister court in Tran v. Anvil Iron Works, Inc., 110 So. 3d 923 (Fla. 2d
DCA 2013), persuasive. In Tran, the plaintiff was injured in an
automobile accident and sued the driver of the other vehicle and his corporate
employer, which owned the vehicle. Tran, 110 So. 3d at 924. During the
course of the litigation, plaintiff tendered separate proposals for settlement
on the individual defendant and on the corporate defendant. Id. Each
proposal was specific as to the one defendant named therein and each stated
that, as a condition of the proposal, the plaintiff would voluntarily dismiss,
with prejudice, any and all claims against the specific defendant named in the
proposal for settlement. Id. Plaintiff attached to the proposal for
settlement a copy of the proposed notice of voluntary dismissal with prejudice
to be filed if the proposal was accepted. Id. However, the attached
dismissal notice named both defendants and indicated that the case would be
dismissed against both defendants. Id. at 924-25.
Neither defendant accepted the proposal for settlement. Id.
at 925. Based on the result at trial, plaintiff moved to enforce the
proposals. Id. The trial court denied the motion, finding that the
proposals for settlement were ambiguous because, while the body of the
proposals did not indicate that both defendants would be dismissed, the notices
of dismissal attached to the respective proposals did. Id.
at 925. Based on the result at trial, plaintiff moved to enforce the
proposals. Id. The trial court denied the motion, finding that the
proposals for settlement were ambiguous because, while the body of the
proposals did not indicate that both defendants would be dismissed, the notices
of dismissal attached to the respective proposals did. Id.
The Second District Court of Appeal affirmed on this issue.7 Id. at 926. The court held
that the document was ambiguous because it was unclear whether acceptance of
the proposal by one of the defendants would result in a dismissal only against
that defendant or against both defendants. Id. The court stated that
this discrepancy could reasonably affect the decision to accept the proposal
because:
that the document was ambiguous because it was unclear whether acceptance of
the proposal by one of the defendants would result in a dismissal only against
that defendant or against both defendants. Id. The court stated that
this discrepancy could reasonably affect the decision to accept the proposal
because:
[O]ne
defendant might want to accept the proposal directed to it only if it knows for
certain that its payment would result in the release of both defendants. This
may be especially significant in a case such as this where one defendant is the
employer/owner of the car and the other defendant is the employee who was
driving the car.
defendant might want to accept the proposal directed to it only if it knows for
certain that its payment would result in the release of both defendants. This
may be especially significant in a case such as this where one defendant is the
employer/owner of the car and the other defendant is the employee who was
driving the car.
Id.
Admittedly, in the instant case, there were no specific
nonmonetary terms, such as dismissal of the action, described in the respective
proposals. However, as previously discussed, the language in the proposals
themselves raised the legitimate question as to whether acceptance resolved
Appellee’s claim for “all damages” against just the named offeree or resolved
the entire claim against both Appellants. As recognized in Tran, this
may be significant in a case such as this where one defendant is the permissive
driver of the vehicle and the other defendant is vicariously liable by being
the owner of the vehicle.
nonmonetary terms, such as dismissal of the action, described in the respective
proposals. However, as previously discussed, the language in the proposals
themselves raised the legitimate question as to whether acceptance resolved
Appellee’s claim for “all damages” against just the named offeree or resolved
the entire claim against both Appellants. As recognized in Tran, this
may be significant in a case such as this where one defendant is the permissive
driver of the vehicle and the other defendant is vicariously liable by being
the owner of the vehicle.
Accordingly, because we find that the proposals for
settlement in this case were ambiguous and therefore invalid, we reverse the
final judgment on appeal in its entirety.8
settlement in this case were ambiguous and therefore invalid, we reverse the
final judgment on appeal in its entirety.8
REVERSED. (WALLIS and EDWARDS, JJ., concur.)
__________________
1The final judgment also awarded
Appellee interest in the sum of $10,686.59, plus an $11,380 expert witness fee
to counsel who testified on Appellee’s behalf at the attorney fee hearing.
Appellee interest in the sum of $10,686.59, plus an $11,380 expert witness fee
to counsel who testified on Appellee’s behalf at the attorney fee hearing.
2Appellants were represented by the
same counsel.
same counsel.
3Case No. 2010-CA-25627-0 is the
underlying negligence case between the parties.
underlying negligence case between the parties.
4The damages awarded, post-judgment
interest, and court costs have all been paid and are not part of this appeal.
interest, and court costs have all been paid and are not part of this appeal.
5Section 768.79(1), Florida Statutes
(2011), provides in pertinent part:
(2011), provides in pertinent part:
In
any civil action for damages filed in the courts of this state, . . . [i]f a
plaintiff files a demand for judgment which is not accepted by the defendant
within 30 days and the plaintiff recovers a judgment in an amount at least 25
percent greater than the offer, she or he shall be entitled to recover
reasonable costs and attorney’s fees incurred from the date of the filing of
the demand.
any civil action for damages filed in the courts of this state, . . . [i]f a
plaintiff files a demand for judgment which is not accepted by the defendant
within 30 days and the plaintiff recovers a judgment in an amount at least 25
percent greater than the offer, she or he shall be entitled to recover
reasonable costs and attorney’s fees incurred from the date of the filing of
the demand.
6“Section 768.79 provides the
substantive law concerning offers and demands of judgments, while Florida Rule
of Civil Procedure 1.442 provides for its procedural mechanism.” Winter Park
Imports, Inc. v. JM Family Enters., 66 So. 3d 336, 338 (Fla. 5th DCA 2011)
(citing Saenz v. Campos, 967 So. 2d 1114, 1116 (Fla. 4th DCA 2007)).
substantive law concerning offers and demands of judgments, while Florida Rule
of Civil Procedure 1.442 provides for its procedural mechanism.” Winter Park
Imports, Inc. v. JM Family Enters., 66 So. 3d 336, 338 (Fla. 5th DCA 2011)
(citing Saenz v. Campos, 967 So. 2d 1114, 1116 (Fla. 4th DCA 2007)).
7The court reversed on a separate
issue not relevant to the present proceedings.
issue not relevant to the present proceedings.
8The proposals for settlement also
neglected to include a separate statement as to whether attorney’s fees were
part of the legal claim. The Fourth District Court of Appeal in Deer Valley
Realty, Inc. v. SB Hotel Assocs., LLC, 190 So. 3d 203 (Fla. 4th DCA 2016),
and the First District Court of Appeal in Colvin v. Clements & Ashmore,
P.A., 182 So. 3d 924, 925-26 (Fla. 1st DCA 2016), have recently held that
proposals for settlement lacking this specific language were invalid and
unenforceable. However, this issue was not raised in the instant case and,
therefore, we do not consider it.
neglected to include a separate statement as to whether attorney’s fees were
part of the legal claim. The Fourth District Court of Appeal in Deer Valley
Realty, Inc. v. SB Hotel Assocs., LLC, 190 So. 3d 203 (Fla. 4th DCA 2016),
and the First District Court of Appeal in Colvin v. Clements & Ashmore,
P.A., 182 So. 3d 924, 925-26 (Fla. 1st DCA 2016), have recently held that
proposals for settlement lacking this specific language were invalid and
unenforceable. However, this issue was not raised in the instant case and,
therefore, we do not consider it.
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