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June 30, 2017 by admin

Attorney’s fees — Proposal for settlement — Trial court erred in finding that proposal for settlement was ambiguous and unenforceable — Dismissal condition contained in defendant’s proposal was sufficiently clear to allow plaintiff to make informed decision without requiring additional clarification

42
Fla. L. Weekly D1405a
Top of Form

Attorney’s
fees — Proposal for settlement — Trial court erred in finding that proposal
for settlement was ambiguous and unenforceable — Dismissal condition contained
in defendant’s proposal was sufficiently clear to allow plaintiff to make
informed decision without requiring additional clarification

STANLEY SHERMAN, Appellant, v. PAUL
SAVASTANO, Appellee. 4th District. Case No. 4D16-2793. June 21, 2017. Appeal
from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County;
Edward L. Artau, Judge; L.T. Case No. 502014CA015232XXXXMBAF. Counsel:
Jacqueline G. Emanuel and Mark D. Baxter of Knoerr & Emanuel, P.A., Fort
Lauderdale, for appellant. Anthony M. Stella of Lytal, Reiter, Smith, Ivey
& Fronrath, West Palm Beach, for appellee.

(DAMOORGIAN, J.) Defendant, Stanley
Sherman, appeals from the circuit court’s order denying his motion for
attorney’s fees. Defendant argues that the court erred in finding that his
proposal for settlement was ambiguous and unenforceable. We agree and reverse.

Plaintiff, Paul Savastano, sued
defendant for injuries he sustained when defendant’s vehicle struck plaintiff
in a crosswalk. Plaintiff’s wife also filed a loss of consortium claim, but
dropped her claim shortly thereafter. About a year later, defendant served a
proposal for settlement on plaintiff, offering $200,000 to settle. The offer
provided that “[t]he parties will execute a joint stipulation for dismissal
with prejudice of the action.” Plaintiff did not accept the offer within the
statutory time frame and the matter proceeded to trial. There, the jury found
that plaintiff’s damages were $335,000, but also found that plaintiff was 75%
at fault. After accounting for PIP setoffs and plaintiff’s comparative fault,
plaintiff’s total recovery was $75,014.13. As this was less than 75% of the
amount offered by defendant, defendant moved for attorney’s fees pursuant to
his proposal for settlement.

Plaintiff argued that defendant’s
proposal was unenforceable because it was ambiguous and did not strictly comply
with the specifications outlined in Florida Rule of Civil Procedure 1.442.
Specifically, plaintiff argued that defendant’s proposal was ambiguous because
it was contingent on the execution of a “joint stipulation for dismissal” even
though there was only one plaintiff and, at any rate, failed to provide the
language of the stipulation of dismissal.

After hearing argument from both
parties on the validity of defendant’s proposal for settlement, the court
entered an order denying defendant’s motion to enforce his proposal. The court
did not expound on its reasoning in the order. Defendant moved for rehearing,
which the court also denied without comment. This appeal follows.

“We review the circuit court’s order
declining to enforce the proposal for settlement de novo.” Kiefer v.
Sunset Beach Invs., LLC
, 207 So. 3d 1008, 1010 (Fla. 4th DCA 2017).

Section 768.79 of the Florida
Statutes creates a substantive right to attorney’s fees where a plaintiff does
not accept a proposal for settlement (also known as an offer of judgment) from
the defendant and “the judgment is one of no liability or the judgment obtained
by the plaintiff is at least 25 percent less than such offer.” § 768.79(1),
Fla. Stat. (2015). “The purpose of Section 768.79 is to lead litigants to
settle by penalizing those who decline offers that satisfy the statutory
requirements. Encouraging settlement lowers litigation costs for the parties
and reduces the fiscal impact of litigation on the court system.” Allstate
Prop. & Cas. Ins. Co. v. Lewis
, 14 So. 3d 1230, 1235 (Fla. 1st DCA
2009) (citations and internal quotation marks omitted).

Florida Rule of Civil Procedure
1.442 governs the form of such proposals. Rule 1.442 requires that proposals be
in writing and:

(A) name
the party or parties making the proposal and the party or parties to whom the
proposal is being made;

(B) state
that the proposal resolves all damages that would otherwise be awarded in a
final judgment in the action in which the proposal is served, subject to
subdivision (F);

(C) state
with particularity any relevant conditions;

(D) state
the total amount of the proposal and state with particularity all nonmonetary
terms of the proposal;

(E) state
with particularity the amount proposed to settle a claim for punitive damages,
if any;

(F) state
whether the proposal includes attorneys’ fees and whether attorneys’ fees are
part of the legal claim; and

(G)
include a certificate of service in the form required by rule 1.080.

Fla. R. Civ. P. 1.442(c)(2).

A “proposal fails to satisfy the
‘particularity’ requirement if an ambiguity within the proposal could
reasonably affect the offeree’s decision.” Saenz v. Campos, 967 So. 2d
1114, 1116 (Fla. 4th DCA 2007). For the purpose of construing the particularity
requirement of rule 1.442, an “ambiguity” is defined as “ ‘the condition of
admitting more than one meaning.’ ” Id. at 1117 (quoting The Random
House College Dictionary
42 (rev. ed. 1980)). “[T]he dismissal of a lawsuit
is a proper and relevant condition in an offer of judgment.” 1 Nation Tech.
Corp. v. A1 Teletronics, Inc.
, 924 So. 2d 3, 6 (Fla. 2d DCA 2005).
Therefore, as required by Florida Rule of Civil Procedure 1.442(c)(2)(C) and
(D), the condition of a dismissal as outlined in a proposal for settlement must
be stated with particularity.

In State Farm Mutual Automobile
Insurance Co. v. Nichols
, 932 So. 2d 1067, 1078 (Fla. 2006), the Florida
Supreme Court outlined what is necessary to meet the “particularity”
requirement as it pertains to a general release. That decision established that
the “particularity” requirement is met so long as the proposal includes either
“1) the language of the proposed release; or 2) a summary of the proposed
release, as long as the summary “ ‘eliminates any reasonable ambiguity about
its scope.’ ” Alamo Fin., L.P. v. Mazoff, 112 So. 3d 626, 629 (Fla. 4th
DCA 2013) (quoting Nichols, 932 So. 2d at 1078). As the Nichols court
further explained, “[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.”
932 So. 2d at 1079. For this reason, “courts are discouraged from ‘nitpicking’
settlement proposals for ambiguities, unless the asserted ambiguity could
‘reasonably affect the offeree’s decision’ on whether to accept the settlement
proposal.” Costco Wholesale Corp. v. Llanio-Gonzalez, 213 So. 3d 944,
947 (Fla. 4th DCA 2017) (quoting Anderson v. Hilton Hotels Corp., 202
So. 3d 846, 853 (Fla. 2016)). Although a stipulation of dismissal is not the
same as a general release, applying the logic of Nichols and its progeny,
a proposal for settlement subject to the condition of dismissal is enforceable
so long as it contains sufficient language eliminating any “reasonable
ambiguity about [the] scope” of the dismissal. Nichols, 932 So. 2d at
1079.

Here, the dismissal condition
contained in defendant’s proposal was sufficiently clear to allow plaintiff to
make an informed decision without requiring additional clarification. Florida
Rule of Civil Procedure 1.420(a)(1) allows the plaintiff in a lawsuit to
effectuate a voluntary dismissal without order of the court “by filing a
stipulation of dismissal signed by all current parties to the action. Unless
otherwise stated in the notice or stipulation, the dismissal is without
prejudice . . . .” Following the instruction of Rule 1.420(a)(1), the proposal
stated that as a condition of settlement, “[t]he parties will execute a joint
stipulation for dismissal with prejudice of the action.” As this was a one
count, one plaintiff negligence lawsuit, there is no question as to what a dismissal
could or would entail. The only possibility of ambiguity concerned whether the
action would be dismissed with prejudice, and the language in the proposal
clarified that the dismissal would be with prejudice. Simply put, “the
settlement proposal [was] sufficiently clear and definite to allow the
[plaintiff] to make an informed decision without needing clarification.” Nichols,
932 So. 2d at 1079.

Based on the foregoing, we reverse
the court’s order denying defendant’s motion for attorney’s fees, and remand
for the entry of an order granting the defendant’s motion for attorney’s fees
and setting an evidentiary hearing to determine the amount of fees which
defendant is entitled to recover from plaintiff.

Reversed and remanded for
proceedings consistent with this opinion.
(CIKLIN,
C.J., and HANZMAN, MICHAEL A., Associate Judge, concur.)
 

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