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March 3, 2017 by admin

Attorney’s fees — Proposal for settlement — Trial court erred in denying award of attorney’s fees pursuant to proposal for settlement — Court erroneously found proposal to be ambiguous because it was conditioned on acceptance by both defendants

42
Fla. L. Weekly D516a
Top of Form

Attorney’s
fees — Proposal for settlement — Trial court erred in denying award of
attorney’s fees pursuant to proposal for settlement — Court erroneously found
proposal to be ambiguous because it was conditioned on acceptance by both
defendants — Complete language of proposal for settlement and attached general
release form to be signed by defendants does not require that both defendants
must agree in order to effectuate settlement

ATLANTIC
CIVIL, INC., etc., Appellant, vs. EDWIN O. SWIFT, III, etc., et al., Appellees.
3rd District. Case No. 3D15-1594. L.T. Case No. 09-1214-K. Opinion filed March
1, 2017. An Appeal from the Circuit Court for Monroe County, Timothy J. Koenig,
Judge. Counsel: Shubin & Bass, P.A., and Jeffrey S. Bass and Katherine R.
Maxwell; Hershoff, Lupino & Yagel, LLP and James S. Lupino, for appellant.
Cole Scott & Kissane, P.A. and Kathryn L. Ender, for appellees.

(Before
SUAREZ, C.J., and LAGOA, J., and SHEPHERD, Senior Judge.)

(SHEPHERD,
Senior Judge.) Atlantic Civil, Inc. appeals the denial of its Motion for
Attorney’s Fees filed pursuant to section 768.79 of the Florida Statutes, after
the trial court found Atlantic’s proposal for settlement to Edwin O. Swift, III
and Key Haven Estates, LLC to be ambiguous. We reverse.

Factual
and Procedural Background

This
is the parties’ second appeal related to the lawsuit filed by Atlantic Civil
against Swift and Key Haven for conversion of fill material. See Atlantic
Civil, Inc. v. Swift
, 118 So. 3d 271 (Fla. 3d DCA 2013) (reversing the
judgment entered in favor of Swift and Key Haven and remanding for entry of a
judgment for Atlantic Civil). During litigation in the underlying lawsuit,
Atlantic Civil served an offer of settlement to Swift and Key Haven, which
stated in pertinent part:

Plaintiff Atlantic Civil, Inc. (“ACI”), by and through
undersigned counsel and pursuant to Section 768.79, Florida Statutes and Rule
1.442, Florida Rules of Civil Procedure, makes the following proposal for
settlement to defendants Edwin O. Swift, III (“Swift”) and Key Haven Estates,
LLC (“Key Haven”) (collectively “Defendants”), the terms of which are as
follows:

1. Nature of Resolved
Claims.
ACI proposes to resolve all claims brought by ACI against
Defendants in the above-captioned action, including all claims arising from or
connected to this action which, if not brought herein, would be barred by final
judgment herein, including but not limited to, any claims for punitive damages.

2. Amount of Proposal.
Without admitting or conceding in any way that the value of the property
disputed in the above-captioned action is less than the amount demanded in
ACI’s amended complaint, and in the interest of avoiding the expense and
inconvenience of litigation, ACI proposes that Defendants pay ACI the total
amount of FIFTY THOUSAND DOLLARS ($50,000.00) apportioned as follows: from
Swift to ACI, the amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), and from
Key Haven to ACI, the amount of TWENTY-FIVE THOUSAND DOLLARS ($25,000.00), in
full and complete settlement of the claims identified in paragraph (1) above.

. . . .

5. Nonmonetary or Other
Conditions.
This proposal is conditioned on the mutual exchange of general
releases (attached hereto as Exhibits A and B)[1] as described in this paragraph. ACI
will dismiss this action with prejudice and execute a general release, in favor
of Defendants, of the claims identified in paragraph (1) above. Likewise,
Defendants will execute a general release, in favor of ACI, of all
counterclaims arising from or connected to this action which, if not asserted
herein, would be barred by final judgment in this matter.

6. Acceptance or Rejection
of Proposal.
This proposal shall be deemed rejected unless Defendants
accept it by delivering written notice of acceptance to ACI within thirty (30)
days following the service hereof, calculated according to Rule 1.442, Florida
Rules of Civil Procedure. If Defendants do not timely accept this proposal,
Swift and/or Key Haven may be liable for reasonable attorney’s fees and costs
incurred by ACI from the date of filing this proposal pursuant to Section
768.79, Florida Statutes.

Neither
Swift nor Key Haven responded to the offer. In accordance with this court’s
remand in the prior appeal, the trial court entered final judgment for Atlantic
Civil in the amount of $86,108.51. Atlantic Civil then moved for attorney’s
fees, as the judgment exceeded the statutory threshold applicable to its
Proposal for Settlement pursuant to section 768.79. At the attorney’s fees
hearing, Swift and Key Haven argued the offer of settlement was ambiguous
because it appeared to be conditioned on acceptance by both defendants. The
trial court agreed and denied the motion for fees. Atlantic Civil appeals this
ruling.

Analysis

The
issue in this case is whether the Proposal for Settlement is valid under
section 768.79, which is implemented by Florida Rule of Civil Procedure 1.442.
It should be kept in mind that settlement proposals are interpreted strictly
because they are in derogation of the general rule that each party bears its
own attorney’s fees. Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849
So. 2d 267 (Fla. 2003). The settlement proposal must be sufficiently clear to
allow the offeree the opportunity to fully consider the terms of the proposal. State
Farm Mut. Auto. Ins. Co. v. Nichols
, 932 So. 2d 1067, 1079 (Fla. 2006)
(“[Rule 1.442] merely requires that the settlement proposal be sufficiently
clear and definite to allow the offeree to make an informed decision without
needing clarification.”). However, “given the nature of language, it may be
impossible to eliminate all ambiguity,” and “[t]he rule does not demand the
impossible.” Id. Only [i]f ambiguity within the proposal could reasonably
affect the offeree’s decision, the proposal will not satisfy the particularity
requirement.” Id. (emphasis added). As the Florida Supreme Court
recently warned in Anderson v. Hilton Hotels Corp., 202 So. 3d 846, 852
(Fla. 2016), “courts are discouraged from ‘nitpicking’ proposals for settlement
to search for ambiguity.”

In
interpreting the settlement proposal, “the intention of the parties must be
determined from examination of the whole contract and not from separate phrases
or paragraphs.” Deeb v. Field, 311 So. 2d 736, 737 (Fla. 3d DCA 1975).
Looking at the complete language of the Proposal for Settlement and the
attached general release form to be signed by Swift and Key Haven, we find no
requirement that both defendants must agree in order to effectuate the
settlement.2 While in some instances the Swift and
Key Haven are referred to as defendants, plural, this is simply a matter of
convenience. The settlement amount is apportioned between the two defendants
and the general release form allows for the defendants to sign separately.
Thus, the proposal meets the Nichols requirement that the proposal be
sufficiently clear and definite to allow each offeree to make an informed
decision as to whether to settle. Reading the references to “defendants” to
create an ambiguity would involve the type of ‘nitpicking’ which the Anderson
court expressly warns against.

For
these reasons, we reverse the decision of the trial court and remand for
consideration of attorney’s fees under the Proposal for Settlement.

Reversed
and remanded. (LAGOA, J., concurs.)

__________________

(SUAREZ,
C.J.. dissenting.) I respectfully dissent.

Proposals
for settlement must be sufficiently specific so that there are no ambiguities,
so that the recipient can fully evaluate the terms and conditions, and so that
the proposal can be executed without the need for judicial interpretation. State
Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
The Florida Supreme Court has also recognized that, although it may not be
possible to eliminate all ambiguity, the rule “merely requires that the
settlement proposal be sufficiently clear and definite to allow the offeree to
make an informed decision without needing clarification.” Id.
[e.s.]. That this Court is now split on the issue indicates that the Settlement
Offer was not sufficiently clear after all.

Although
there is no language in the Settlement Offer specifically conditioning
acceptance by both parties, there is sufficient language in the document to
suggest that the proposal was joint in nature, i.e., that neither defendant
could accept separately from the other. Throughout the one, single, document
the “defendants” are jointly referenced in the plural; the proposal was
conditioned on the mutual exchange of releases;3 and Atlantic Civil wanted to recover
a total of $50,000 — nothing less. That Atlantic Civil apportioned the $50,000
equally between the two defendants does not turn the Settlement Offer into an
offer that could be individually accepted by either the individual or corporate
defendant.

In Attorney’s
Title Ins. Fund, Inc. v. Gorka
, 36 So. 3d 646, 647 (Fla. 2010), the Supreme
Court of Florida considered a joint proposal for settlement: “We hold that this
type of joint offer is invalid and unenforceable because it is conditioned such
that neither offeree can independently evaluate or settle his or her respective
claim by accepting the proposal.” This Court has followed Gorka and its
reaffirmance of “longstanding precedent” requiring that either offeree must be
able to evaluate and settle with the offeror by accepting the proposal,
“irrespective of the other parties’ decisions.” Saewitz v. Saewitz, 79
So. 3d 831, 833 n. 1 (Fla. 3d DCA 2012).

The
corporate defendant’s considerations are clearly separate and different from
the individual defendant, despite Mr. Swift’s status as an individual defendant
and his relationship to the company. Among other considerations, one of the
three counts of the amended complaint does not seek relief as against Mr.
Swift.

Because
the Settlement Offer must be read as a whole to give effect to all of its
provisions, and based on binding authority in Gorka, I conclude that the
proposal was an unenforceable joint proposal. I would affirm the trial court’s
order denying Atlantic Civil’s motion for attorney’s fees.

__________________

1Exhibit
B was a three-page general release form which on page one provided in pertinent
part:

KNOW ALL MEN BY THESE
PRESENTS that Edwin O. Swift, III (“Swift”), . . . and Key Haven Estates, LLC
(“Key Haven”), . . . for promises and undertakings and other good and valuable
consideration set forth in [the proposal for settlement] . . . hereby
absolutely, fully and forever release, relieve and discharge ACI . . . of and
from any and all claims, counterclaims, demands, obligations, actions suits,
debts, damages, contracts, bonds, promises, controversies, and causes of
action, in law or equity, brought by Swift and/or Key Haven against ACI in [the
lawsuit at issue] . . . .

. . . .

This release may be executed
in multiple counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument.

. . . .

The
remaining pages separately provided for the notarized signatures of Swift
individually (page two) and Swift, as manager for Key Haven (page three).

2This
fact distinguishes Attorney’s Title Insurance Fund, Inc. v. Gorka, 36
So. 3d 646 (Fla. 2010) because Gorka is limited to proposals expressly
and directly
conditioned on joint acceptance by all offerees. Id. at
648 (“This offer is conditioned upon the offer being accepted by both John W.
Gorka and Laurel Lee Larson. In other words, the offer can only be accepted if
both John W. Gorka and Laurel Lee Larson accept and neither Plaintiff can
independently accept the offer without their co-plaintiff joining in the
settlement.
).

3The
release attached to the joint proposal was to be signed by both defendants, not
by just one of them.

* *
*

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