42
Fla. L. Weekly D2154eTop of Form

Attorney’s
fees — Proposal for settlement — Trial court erred in denying motion for
attorney’s fees on ground that proposals for settlement failed to apportion
settlement amount to each defendant — Sufficient apportionment was set forth
where plaintiff sent identical proposals for settlement to two defendants
indicating the total settlement amount sought, and each proposal contained a
footnote clarifying the total amount sought and indicating that if each of the
two defendants accepted and tendered the full settlement amount to the
plaintiff, the plaintiff would return half of the amount to each of the
defendants

GOLISTING.COM, INC., d/b/a PALM
BEACH PREMIER REAL ESTATE, a Florida corporation, Appellant, v. JOHN PAPERA,
individually, and CHRISTINE PAPERA, individually, Appellees. 4th District. Case
No. 4D16-378. October 11, 2017. Appeal and cross-appeal from the Circuit Court
for the Fifteenth Judicial Circuit, Palm Beach County; Jaimie Goodman and
Martin Colin, Judges; L.T. Case No. 2013CA004408XXXXMB. Counsel: Stephen J.
Padula and Joshua Widlansky of Padula Bennardo Levine, LLP, Boca Raton, for
appellant. Aaron M. Cohen of Aaron M. Cohen, P.A., Delray Beach, for appellees.

(KLINGENSMITH, J.) In this dispute
involving a real estate sales commission in which appellant GoListing.com, Inc.
d/b/a Palm Beach Premier Real Estate (“PBPRE”) prevailed at trial, PBPRE
appeals the trial court’s refusal to enforce its pretrial settlement proposal.
Concurrently, appellees, John Papera and Christine Papera, ask this Court to
reverse the trial court’s denial of their motion for summary judgment. We
affirm the trial court’s denial of summary judgment without comment, but
reverse the court’s order denying attorney’s fees because PBPRE’s proposal was
not ambiguous.

PBPRE filed a lawsuit against the
Paperas, alleging that the Paperas failed “to tender the required real estate
commission from the sale of the Paperas’ property.” The jury ultimately
returned a verdict in favor of PBPRE for $51,000.

PBPRE moved for attorney’s fees and
costs, arguing that it was entitled to attorney’s fees because the Paperas
rejected PBPRE’s settlement proposals. The proposal sent to Mr. Papera
contained the following provisions:

1. This Proposal for Settlement (the “Proposal”) is being
made by the Plaintiff, PBPRE, to the Defendant, John Papera.

2. This Proposal, if accepted, is intended to terminate the
litigation in its entirety, as it pertains to PBPRE’s claims against
Defendants. Specifically, this Proposal is intended to resolve all claims in
this action asserted by PBPRE against Defendants.

3. The total amount of the Proposal is Forty Thousand
Dollars ($40,000.00) to be paid by Defendant John Papera to PBPRE.

4. The relevant conditions and particular terms of this
Proposal are as follows: John Papera shall pay the amount stated above in
paragraph 3 to PBPRE. Upon PBPRE’s receipt of said payment, PBPRE shall file a
stipulation for voluntary dismissal with prejudice of all counts asserted by
PBPRE against Defendants within ten (10) days.

After the first sentence in
paragraph two, PBPRE provided the following footnote:

An identical Proposal for Settlement has been proposed to
Defendant Christine Papera. Therefore, if either Defendant accepts their
Proposal, PBPRE will terminate the litigation in its entirety, as it pertains
to both Defendants. Put another way, if Defendant John Papera accepts this
Proposal, PBPRE will dismiss its claims against both John and Christine Papera.
Therefore, it should be clear to both Defendants that PBPRE is not seeking
$40,000.00 from each Defendant, but is instead seeking a total of $40,000.00
from both Defendants. In the unlikely event that both Defendants timely accept
and tender the $40,000.00 to Plaintiff, then Plaintiff shall return $20,000.00
to each Defendant.

As indicated, a separate proposal
was sent to Mrs. Papera that was identical to the proposal sent to her husband,
except that it was directed specifically to Mrs. Papera.

The Paperas argued below that the
court should deny PBPRE’s motion for attorney’s fees because PBPRE “failed to
apportion the settlement amount to each Defendant as required by Florida Rule
of Civil Procedure 1.442(c)(3).” They argued that even though PBPRE sent
multiple proposals, the proposals were an improper joint proposal because they
were identical and failed to apportion the amount so that the Paperas could independently
evaluate the offers.

The trial court agreed and denied
the motion for fees, ruling that PBPRE failed to apportion the $40,000
settlement offer between John Papera and Christine Papera. This appeal
followed.

“The standard of review in determining
whether a proposal for settlement is ambiguous is de novo.” Land & Sea
Petroleum, Inc. v. Bus. Specialists, Inc., 53 So. 3d 348, 353 (Fla. 4th DCA
2011).

Florida’s offer of judgment statute,
section 768.79, Florida Statutes (2013), and the rule implementing it, Florida
Rule of Civil Procedure 1.442, are intended to reduce litigation costs by
encouraging settlement. Kuhajda v. Borden Dairy Co. of Alabama, 202 So.
3d 391, 395 (Fla. 2016). They act as a sanction against a party who rejects a
reasonable settlement offer. Diamond Aircraft Indus., Inc. v. Horowitch,
107 So. 3d 362, 372 (Fla. 2013). They are also “in derogation of the common law
rule that parties are responsible for their own attorney’s fees, and thus the
statute and rule must be strictly construed.” Campbell v. Goldman, 959
So. 2d 223, 226 (Fla. 2007).

Settlement proposals must “be as
specific as possible, leaving no ambiguities so that the recipient can fully
evaluate its terms and conditions.” Lucas v. Calhoun, 813 So. 2d 971,
973 (Fla. 2d DCA 2002). Although settlement proposals should be unambiguous,
“[rule 1.442] does not demand the impossible. It merely requires that the
settlement proposal be sufficiently clear and definite to allow the offeree to
make an informed decision without needing clarification.” State Farm Mut.
Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). “Therefore,
parties should not ‘nit-pick’ the validity of a proposal for settlement based
on allegations of ambiguity unless the asserted ambiguity could ‘reasonably
affect the offeree’s decision’ on whether to accept the proposal for
settlement.” Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206
(Fla. 2d DCA 2008) (quoting Nichols, 932 So. 2d at 1079)).

Rule 1.442(c)(3) provides that “[a]
proposal may be made by or to any party or parties and by or to any combination
of parties properly identified in the proposal. A joint proposal shall state
the amount and terms attributable to each party.” “The purpose of the
apportionment requirement in the rule is to allow each offeree to evaluate the
terms and the amount of the offer as it pertains to him or her.” Pratt v.
Weiss, 161 So. 3d 1268, 1272 (Fla. 2015).

Here, there was sufficient
apportionment set forth under the terms of PBPRE’s settlement proposal. The
wording made it clear that the offer to settle was $40,000. Both defendants
were adequately apprised of the amount needed to accept their respective
offers. The conditions became effective only after acceptance. If one defendant
accepted the proposal but the other did not, PBPRE would consider the case
settled and dismiss the action against both defendants. The footnote also
explained that PBPRE would provide a refund if the codefendant accepted the
same offer. However, neither condition made the offer to either party
ambiguous. The provision for a potential refund does not negate that there was
an apportionment of the joint settlement proposal between the parties. In sum,
the Paperas decided, either jointly or separately, to reject PBPRE’s settlement
proposal for $40,000. Therefore, they are liable for attorney’s fees under
section 768.79 and rule 1.442.

Affirmed in part and reversed in
part. (CONNER and FORST, JJ., concur.)

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