DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANDREA EHLERT and PETER EHLERT,
Appellants,
v.
DORIS CASTRO, TEODORO CASTRO and
FLORIDA SUN AND SURF REALTY GROUP. L.L.C.,
Appellees.
No. 4D20-2007
[November 3, 2021]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie County; Barbara W. Bronis, Judge; L.T. Case No.
562016CA001024RL.
Mark Hanson of Gordon & Partners, P.A., Palm Beach Gardens, and
Andrew A. Harris and Grace Mackey Streicher of Harris Appeals, P.A.,
Palm Beach Gardens, for appellant Andrea Ehlert.
Lissette Gonzalez of Cole, Scott & Kissane, P.A., Miami, for appellees
Doris Castro and Teodoro Castro.
WARNER, J.
After a judgment in appellant Andrea Ehlert’s favor in a personal injury
case, appellant moved to assess attorney’s fees based upon a Proposal for
Settlement (PFS). The trial court denied the motion, finding the PFS was
ambiguous with regard to the claims included in the proposal. Because
the proposal was limited to claims made in the lawsuit, there was no
ambiguity. We thus reverse.
Appellant, a tenant of the appellees, was injured on their property. She
filed suit for damages. During the pendency of the litigation, appellant
served the following proposal for settlement on the appellees:
COMES NOW, [Appellant], individually, by and through
undersigned attorney, and pursuant to Florida Statutes §
768.79 and Florida Rules of Civil Procedure 1.442, and hereby
makes the following Proposal for Settlement in the above
styled cause upon [Appellees]:
The party making the Proposal for Settlement is [Appellant].
The party to whom the Proposal for Settlement is made is to
[Appellees].
This Proposal for Settlement is made to resolve any and all
claims and counts pled by [Appellant] against [Appellees], as
a result of the subject accident which occurred on or about
September 17, 2015, in Port Saint Lucie, Florida, as described
in [Appellant’s] Complaint.
A. This proposed settlement amount includes all claims by
and between [Appellant] and [Appellees], which could be
included in a Final Judgment, including taxable costs and
prejudgment interest.
B. The total amount of the Proposal for Settlement to
[Appellees], is One Hundred Thousand Dollars and no
cents ($100,000.00).
C. Relevant conditions: If accepted by [Appellees], then a
final judgment will be entered against it and upon payment
of the amount due, a satisfaction of the judgment will be
filed. If, however, [Appellees], accepts [sic] this proposal by
making payment of the amount due within 30 days of
acceptance, then no judgment will be entered against
[Appellees]. Regardless of the method of acceptance,
whether by either entry of judgment or payment of the
amount due, [Appellant], will file a voluntary dismissal
with prejudice in this matter as to [Appellees].
(provisions not relevant to this appeal omitted).
Appellees did not accept the PFS and ultimately a jury found that
appellant suffered damages. After reduction for comparative negligence,
the trial court entered judgment for appellant in the amount of
$307,049.19, plus costs.
Appellant moved for entitlement to fees pursuant to the PFS, because
the amount of the judgment exceeded the amount of the proposal by
greater than twenty-five percent, entitling plaintiffs to fees pursuant to
Florida Rule of Civil Procedure 1.442 and section 768.79, Florida Statutes.
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Appellees responded, arguing that the PFS contained language that was
vague, ambiguous, and contradictory when read together, as it contained
invalid conditions which encompassed claims beyond the scope of the
claim at issue.
At the hearing on the motion, appellees pointed to paragraph A’s
language that the proposal covered claims “which could be included in a
Final Judgment.” They contended that the PFS required them to release
any unknown, future claims, noting that appellant was a tenant of
appellees at the time of the PFS and appellees might have had a future
cause of action against appellant for unpaid rent. Appellant maintained
that the paragraph stating the PFS was made “to resolve any and all claims
and counts pled by [Appellant] . . . against [Appellees] . . . as a result of
the subject accident which occurred on September 17, 2015”, limited the
scope of the PFS.
After the final judgment awarding damages was affirmed, 1 the trial
court entered an order denying appellant’s motion to assess attorney’s fees
under the PFS. It found an inconsistency in the settlement proposal. The
court concluded that paragraph A expanded the scope of the release to
include any claims between the parties in the future, noting at the time
the parties had a landlord/tenant relationship. Thus, because the court
construed the language as including future claims, the PFS was
ambiguous. Appellant then filed this appeal.
We review de novo a court’s order on the eligibility to receive attorney’s
fees based on a proposal for settlement pursuant to section 768.79 and
rule 1.442. Kuhajda v. Borden Dairy Co. of Ala., LLC,
202 So. 3d 391, 393–
94 (Fla. 2016); Kiefer v. Sunset Beach Inv., LLC,
207 So. 3d 1008, 1010
(Fla. 4th DCA 2017); see also Alamo Fin., L.P. v. Mazoff,
112 So. 3d 626,
628 (Fla. 4th DCA 2013).
Section 768.79, Florida Statutes, and Florida Rule of Civil Procedure
1.442 govern proposals for settlement. The statute and rule “must be
strictly construed because they are in derogation of the common law rule
that each party should pay its own fees.” Kuhajda, 202 So. 3d at 394.
“The purpose of section 768.79 is to ‘reduce litigation costs and conserve
judicial resources by encouraging the settlement of legal actions.’” Id. at
395 (quoting Attorneys’ Title Ins. Fund, Inc. v. Gorka,
36 So. 3d 646, 650
(Fla. 2010)).
1 See Castro v. Ehlert,
298 So. 3d 1148 (Fla. 4th DCA 2020) (table decision).
3
Rule 1.442 provides a procedural framework to implement the
substantive requirements of section 768.79 regarding settlement
proposals.
Id. (citation omitted.) The rule “requires that settlement
proposals ‘state with particularity any relevant conditions’ and also ‘state
with particularity all nonmonetary terms.’” State Farm Mut. Auto. Ins. Co.
v. Nichols,
932 So. 2d 1067, 1078 (Fla. 2006) (citing Fla. R. Civ. P.
1.442(c)(2)(C)-(D)). The settlement proposal must “be sufficiently clear and
definite to allow the offeree to make an informed decision without needing
clarification” to meet the requirements of the rule. Am. Home Assurance
Co. v. D’Agostino,
211 So. 3d 63, 65–66 (Fla. 4th DCA 2017) (quoting
Nichols,
932 So. 2d at 1079); see also Nationwide Mut. Fire Ins. Co. v.
Pollinger,
42 So. 3d 890, 891 (Fla. 4th DCA 2010). 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) (citation omitted).
A PFS “must be sufficiently clear and free of ambiguity to allow the
offeree the opportunity to fully consider the proposal.” Allen v. Nunez,
258
So. 3d 1207, 1211 (Fla. 2018) (citing Nichols,
932 So. 2d at 1079). Florida
law does not require the elimination of every ambiguity, “only reasonable
ambiguities,” as the supreme court explained:
We recognize that, given the nature of language, it may be
impossible to eliminate all ambiguity. The rule 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. If
ambiguity within the proposal could reasonably affect the
offeree’s decision, the proposal will not satisfy the particularity
requirement [of rule 1.442(c)(2)(C)-(D)].
Id. (quoting Nichols,
932 So. 2d at 1079). “[C]ourts are discouraged from
‘nitpicking’ proposals for settlement to search for ambiguity” because
“[p]roposals for settlement are intended to end judicial labor, not create
more.”
Id. (citations omitted); accord Am. Integrity Ins. Co. of Fla. v.
Branford,
312 So. 3d 91, 95 (Fla. 4th DCA 2021); Costco Wholesale Corp.
v. Llanio-Gonzalez,
213 So. 3d 944, 947 (Fla. 4th DCA 2017).
Applying these principles to the PFS in this case, there was no
ambiguity. The PFS stated with particularity the claims to be settled. The
third paragraph of the PFS stated that it was “made to resolve any and all
claims and counts pled by [Appellant] against [Appellees] as a result of the
subject accident which occurred on or about September 17, 2015 . . . as
described in [Appellant’s] Complaint.” This clearly referred to appellant’s
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premises liability claim for injuries that appellant alleged she sustained at
appellees’ residence. The next paragraph, paragraph A, provided that the
proposed settlement amount included “all claims by and between
[Appellant] and [Appellees] which could be included in a final judgment[.]”
If appellees accepted the proposal, a final judgment in the action would be
entered, which would be satisfied upon payment of the amount of the
judgment. Alternatively, appellant would file a notice of voluntary
dismissal of the case. No general release was required. Thus, it is clear
that the PFS addressed only claims made in the case which could be
satisfied in a final judgment.
Paragraph A of the proposal “mirrors” the provision in rule 1.442 that
requires the parties to 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[.]” See Fla. R. Civ. P. 1.442(c)(2)(B). Although
appellant’s proposal used the word “claims” instead of “damages,” we have
held that the use of the word “claims” instead of “damages” in a PFS was
“sufficiently clear and definite to have allowed the plaintiff ‘to make an
informed decision without needing clarification.’” D’Agostino,
211 So. 3d
at 66 (Fla. 4th DCA 2017) (quoting Nichols,
932 So. 2d at 1079).
The trial court found the PFS ambiguous because it believed that future
landlord/tenant claims between the parties could be included in the scope
of paragraph A, as the parties had a landlord/tenant relationship. We
disagree. Paragraph A released only claims which “could be included in a
Final Judgment.” Viewing the agreement as a whole, its proposal to settle
any claims “which could be included in a final judgment” clearly referred
to claims made in the underlying action and does not include future
claims. See Ambeca, Inc. v. Marina Cove Vill. Townhome Ass’n, Inc,
880
So. 2d 811 (Fla. 1st DCA 2004) (emphasis omitted) (language in a PFS
which sought to release “any other claims which the [plaintiff] might
otherwise have or assert against [defendant]” did not encompass future
claims). In this case, future claims were not included, and no general
release was required.
At the hearing on the motion appellees, suggested that because of the
landlord/tenant relationship, appellees may in the future have a claim for
unpaid rent. However, nothing in the record shows that at the time the
proposal was made the appellees had any other claims against the
appellant.
The existence of a different claim at the time the proposal is made
appears to be a critical factor in determining whether a PFS which releases
“all claims” between the parties includes other claims. For instance, in
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Saenz v. Campos,
967 So. 2d 1114 (Fla. 4th DCA 2007), we held that a
PFS failed to satisfy the particularity requirement of rule 1.442 because of
ambiguity, when it included “all claims” by the insured against the insurer,
but stated that it was in full settlement of claims raised in the suit. The
insured’s complaint involved an uninsured motorist claim, but before the
PFS was served, the insured gave notice of a bad faith claim. Thus, there
were two claims involved, and the PFS was not clear as to whether both
were included in the PFS. We found a patent ambiguity in the PFS:
Ambiguities can be either patent or latent. A patent ambiguity
is one that appears on its face. “A latent ambiguity—as
distinct from a patent ambiguity—arises ‘where the language
employed is clear and intelligible and suggests but a single
meaning, but some extrinsic fact or extraneous evidence
creates a necessity for interpretation or a choice among two or
more possible meanings.’ ” Mac–Gray Servs., Inc. v. Savannah
Assocs. of Sarasota, LLC.,
915 So. 2d 657, 659 (Fla. 2d DCA
2005) (quoting Ace Elec. Supply Co. v. Terra Nova Elec., Inc.,
288 So. 2d 544, 547 (Fla. 1st DCA 1974)).
Id. at 1117.
In Nationwide Mutual Fire Insurance Co. v. Pollinger,
42 So. 3d 890 (Fla.
4th DCA 2010), we found that the PFS contained a latent ambiguity as to
the scope of the offer. The insured brought a UM claim and a PIP claim in
a two-count complaint, and the insurer retained two different law firms to
defend the two different claims. A PFS was presented by the UM insurer’s
attorney which stated that the insured “will dismiss [defendant insurer]
from all claims, causes of action, and damages arising from the incident
or accident giving rise to this lawsuit and will dismiss this lawsuit with
prejudice.”
Id. at 891. The insurer prevailed in the case and then sought
attorney’s fees pursuant to the PFS. The trial court granted the insured’s
motion to strike the PFS as ambiguous.
On appeal, we agreed that there was a latent ambiguity because a
“reasonable ambiguity” existed as to whether the offer covered just the UM
claim filed only by the insurer’s attorney on the UM case or whether it
included the PIP claim too. “This ambiguity made it difficult for [the
insured] to make an informed decision without clarification of the terms of
the offer.”
Id. at 892. Like Saenz, this ambiguity was caused by the fact
that the insured had two claims existing when the PFS was served. See
also Palm Beach Polo Holdings, Inc. v. Vill. of Wellington,
904 So. 2d 652,
653 (Fla. 4th DCA 2005) (PFS which included general release of all
damages “brought or not brought” in the lawsuit was ambiguous where
6
other claims and lawsuits were pending between the parties); Nichols,
932
So. 2d at 1079–80 (PFS served by insurer to insured was ambiguous when
it sought to release all claims “arising out of” a PIP claim, where insured
also had a UM claim pending against the insurer); Matrisciani v. Garrison
Prop. & Cas. Ins. Co.,
298 So. 3d 53, 60 (Fla. 4th DCA 2020) (PFS which
required the plaintiff “satisfy all relevant liens” in a personal injury suit
was not ambiguous where there was only one lien to be satisfied and no
other claims pending). Thus, without any other pending claims between
appellant and appellees, it should have been clear to appellees that the
PFS was meant only to resolve the personal injury claim in the suit.
In Branford, we reaffirmed that a settlement proposal should be
sufficiently clear and definite to allow the offeree to make an informed
decision without needing clarification, but trial courts should not nitpick
proposals for ambiguities. 312 So. 3d at 95–96. Considering that there
were no other pending claims between the parties, the condition of
settlement was simply the entry and satisfaction of a final judgment or a
notice of voluntary dismissal of the suit, and it required no general release,
the PFS as a whole contained no ambiguity that could reasonably have
affected defendant’s decision to accept or reject it. We thus reverse the
order denying entitlement to fees pursuant to the PFS and remand for the
court to determine the amount of the fee.
Reversed and remanded for further proceedings.
LEVINE and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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