46 Fla. L. Weekly D547a

KAREN KETTERLING and PARKER KETTERLING, Appellants, v. VIRGINIA M. MORRIS, Appellee. 1st District. Case No. 1D20-37. March 10, 2021. On appeal from the Circuit Court for Okaloosa County. John Jay Gontarek, Judge. Counsel: Mark J. Upton of Daniell, Upton & Perry, P.C., Spanish Fort, AL; Isaac R. Ruiz-Carus and Katherine A. Gannon of Rissman, Barrett, Hurt, Donahue, McLain & Mangan, Tampa, for Appellants. Charles F. Beall and Haley J. Vanfleteren of Moore, Hill & Westmoreland, P.A., Pensacola; Jonathan D. Simpson of Simpson Law Firm, Fort Walton Beach, for Appellee.

(PER CURIAM.) Karen and Parker Ketterling appeal the final judgment entered against them after the trial court granted Virginia Morris’s motion to enforce a settlement agreement. On appeal, the Ketterlings argue that the trial court misconstrued the law when it determined that the offer made by the Ketterlings to settle the claims against them pursuant to section 768.79, Florida Statutes (2019), and Florida Rule of Civil Procedure 1.442 was enforceable. Based on the facts of this case, we agree and reverse.

This cause of action arose out of a motor vehicle accident. Ms. Morris was a passenger in a vehicle that collided with another vehicle driven by Parker Ketterling and owned by Karen Kettering. Shortly before the scheduled jury trial, the Ketterlings served a joint proposal on Ms. Morris for $20,000 to settle all claims arising out of the motor vehicle accident. On the same day the Ketterlings served the offer on Ms. Morris, Ms. Morris served an offer on each of the Ketterlings individually. Shortly before the offers were set to expire, Karen Ketterling filed a notice of accepting Ms. Morris’s offer to settle all of Ms. Morris’s claims against her. A day later, Ms. Morris filed a notice of accepting the offer the Ketterlings made to her. The Ketterlings objected to Ms. Morris’s acceptance. At the hearing, Ms. Morris argued that because the Ketterlings did not withdraw the offer, it remained open. Ms. Morris also argued that because the Ketterlings did not differentiate the amount owed by each defendant toward the damages owed to Ms. Morris, Ms. Morris could assign Parker Ketterling the entire amount offered. The trial court agreed, granted Ms. Morris’s motion to enforce the settlement, and entered a final judgment in favor of Ms. Morris.

The issue before this Court is whether the intervening proposal for settlement and acceptance of that intervening offer rendered the initial proposal for acceptance invalid. Because this involves a question of law, this Court’s review is de novo. Frosti v. Creel, 979 So. 2d 912, 915 (Fla. 2008). Section 768.79 and rule 1.442 explicitly state that there are only two ways to withdraw an offer. One is by the expiration of time. Fla. R. Civ. P. 1.442(f)(1). The second is by withdrawing the offer in writing and serving the withdrawal on the offeree prior to the offeree filing an acceptance. § 768.79(5), Fla. Stat. (2019); Fla. R. Civ. P. 1.442(e).

The record shows that the Ketterlings did not withdraw their offer in writing and the time did not expire. However, the Ketterlings argue that their joint offer could not have remained valid because Ms. Morris could not have released Karen Ketterling from liability twice. One of the conditions in the Ketterlings offer was for Ms. Morris to “dismiss all claims arising out of the motor vehicle accident by the Plaintiff, VIRGINIA MORRIS, against the Defendants, KAREN KETTERLING and PARKER KETTERLING.” In the offer made by Ms. Morris to Karen Ketterling, Ms. Morris stated that upon the written acceptance of her offer and total payment of $25,000, she would dismiss with prejudice all of her claims against Karen Ketterling in this cause of action.

Since Karen Ketterling accepted Ms. Morris’s offer prior to Ms. Morris accepting the Ketterlings’ offer, Ms. Morris would not have been able to fulfill her obligation under the Ketterlings’ offer. Because Ms. Morris could not fulfill all of her obligations, the Ketterlings’ offer was no longer valid. Accordingly, we reverse and remand for the trial court to vacate the final judgment, vacate the order granting Ms. Morris’s motion to enforce the settlement agreement, and reinstate the claims against Parker Ketterling.

REVERSED and REMANDED. (ROBERTS and KELSEY, JJ., concur; JAY, J., concurs in result only.)* * *