United States District Court, M.D. Florida, Fort Myers Division
OPINION AND ORDER 
POLSTER CHAPPELL UNITED STATES DISTRICT JUDGE.
matter comes before the Court on Plaintiff Patricia
Kennedy's (“Kennedy”) Motion to Enforce
Settlement (Doc. 28) filed on March 8, 2017.
Defendants filed a Response in Opposition (Doc. 34)
to Kennedy's Motion on March 23, 2017. Defendants'
Response was not timely filed and will not be considered.
See M.D. Fla. R. 3.01(b). This matter is
ripe for review.
March 18, 2016, Kennedy filed an Americans with Disabilities
Act (“ADA”) suit against Defendants Three J'S
LLP, T.T. Kwan, Inc., and LJ Ft. Myers LLC. (Doc.
1). Eleven months later, this Court entered an order
directing the parties to jointly notify it as to the status
of mediation. (Doc. 26). Only Kennedy responded,
stating that she was “under the impression that [the]
case. . . resolved.” (Doc. 27). The Court then directed
the parties to file a notice of settlement or notify it as to
the status of settlement. (Doc. 27). Neither party timely
responded to the order.
Kennedy filed her Motion to Enforce Settlement. (Doc.
28). Kennedy also submitted multiple emails outlining
the parties' communications. (Doc. 28-2)
(Doc. 28-3). In those emails, Defense counsel Denise
L. Wheeler represented, “I am willing to revise our
settlement agreement to reflect that we have resolved all
issues except the issue of attorney's fees which we agree
to have the Court decide. Is that acceptable to you?”
(Doc. 28-2). Kennedy's counsel Phil Cullen
responded, in part, “As long as the agreement says. . .
. Plaintiff is the prevailing party and is entitled to
attorney's fees, costs, etc. . . . and the agreement is
explicitly conditioned on the Cour[t] reserving jurisdiction
to enforce and determine the settlement.” (Doc.
28-2). After two follow ups by Kennedy's counsel,
Defense counsel responded, “I will get you a revised
agreement on Monday. Thanks for the follow up.”
(Doc 28-3). It is unclear from the communications if
Defendants agreed to Kennedy's proposed language
regarding attorney's fees.
later status conference, the parties differed as to the
status of settlement. Initially, Kennedy's counsel Thomas
Bacon indicated that the parties “were able to agree on
everything except for the amount of fees.” (Doc. 35
at 4). On the other hand, Defense counsel articulated
that “the only issue remaining in this case is that of
attorney's fees, ” but “[Defendants]
don't agree that [Kennedy it] entitled to attorney's
fees” if Defendants needed to brief the issue to the
Court. (Doc. 35 at 10-11). Defendants were unwilling
“to enter into an agreement that provides that [Kennedy
is] entitled to attorney's fees as a matter of law, [or]
as a matter of agreement.” (Doc. 35 at 10).
Kennedy's Motion to Enforce Settlement, she requests the
Court (1) incorporate and enforce the parties' settlement
agreement; (2) reserve jurisdiction to enforce the
parties' settlement agreement; and (3) determine
Kennedy's counsel is entitled to fees, costs and
general, state contract law governs settlement agreements.
See Reed By & Through Reed v. United States, 717
F.Supp. 1511, 1515 (S.D. Fla. 1988), aff'd, 891 F.2d 878
(11th Cir. 1990) (citing Florida Educ. Assoc., Inc. v.
Atkinson, 481 F.2d 662, 663 (5thCir. 1973));
see also Resnick v. Uccello Immobilien GMBH, Inc.,
227 F.3d 1347, 1350 (11th Cir. 2000) (citations omitted). In
Florida, “an objective test is used to determine
whether a contract is enforceable.” Robbie v. City
of Miami, 469 So.2d 1384, 1385 (Fla. 1985) (citation
omitted). “The making of a contract depends not on the
agreement of two minds in one intention, but on the agreement
of two sets of external signs-not on the parties having meant
the same thing but on their having said the same
thing.” Id. (quoting Blackhawk Heating
& Plumbing Co. v. Data Lease Fin. Corp., 302 So.2d
404, 407 (Fla. 1974)). “It is basic to Florida contract
law that the acceptance of an offer that results in an
enforceable agreement must be (1) absolute and unconditional;
(2) identical with the terms of the offer; and (3) in the
mode, at the place, and within the time expressly or
impliedly stated within the offer.” Trout v.
Apicella, 78 So.3d 681, 684 (Fla. Dist. Ct. App. 2012)
(citations omitted). The party seeking to enforce a
settlement must show that the opposing party agreed to all of
the material terms and had authority to enter into the
agreement. Blunt v. Tripp Scott, P.A., 962 So.2d
987, 989 (Fla. Dist. Ct. App. 2007). Further, state law
principles govern the scope of an attorney's apparent
authority to bind the principal. See Hayes v. Nat'l
Serv. Indus., 196 F.3d 1252, 1254 (11th Cir. 1999)
(citing Glazer v. J.C. Bradford and Co., 616 F.2d
167, 168 (5th Cir. 1980)).
argues that the settlement agreement is unambiguous and
covers all essential terms and the only issue “is the
disinclination of the Defendant's counsel to prepare the
minor revisions to the original draft. . . .” (Doc. 28
at 4). Yet the parties have not agreed on (1) entitlement to
attorney's fees or (2) amount of attorney's fees.
(Doc. 28) (Doc. 35). Because the parties agree on all other
terms, the Court must decide whether entitlement to
attorney's fees or amount of attorney's fees are
material terms to the settlement agreement.
breadth of case law discussing the materiality of a
party's entitlement to or amount of attorney's fees
is scant. Yet a few courts have discussed the issue. In
Access 4 All, Inc. v. AAMJ, LLC, the court entertained
reconsideration of plaintiff's motion for approval and
entry of a consent decree in a ADA case. No. CIV. 04-6059
(JHR), 2007 WL 655491, at *1 (D.N.J. Feb. 27, 2007). In
dicta, the court noted it is “clear that whether
attorney's fees would be paid to plaintiffs, and if so
the amount, was a material settlement term.”
Id. But in a case where “the parties agree to
terms to settle the merits of the case and further agree that
one party is entitled to ‘reasonable'
attorney's fees and costs under the ADA, the proper
course is to settle the merits and, if necessary, submit to
the court for resolution the issue of what constitutes a
‘reasonable' attorney's fee under the
statute.” Goodman v. Tatton Enterprises, Inc.,
No. 10-60624-CIV, 2012 WL 12540024, at *28 (S.D. Fla. June 1,
2012), report and recommendation adopted, No. 10-60624-CIV,
2012 WL 12540103 (S.D. Fla. Aug. 14, 2012) (citation omitted,
internal quotations omitted). Here, the parties have not
agreed that one side is entitled to attorney's fees.
Another potential issue arises if a court incorporates a
settlement agreement in a ADA case.
general rule, a “prevailing party” may recover
reasonable attorney's fees in a ADA suit. See 42 U.S.C.
§ 12205. The prevailing party is the one that receives
some relief on the merits of her claim either through an
enforceable judgment or settlement agreement enforced through
a consent decree. See Buckhannon Bd. & Care Home,
Inc. v. W. Virginia Dep't of Health & Human
Res., 532 U.S. 598, 603 (2001). In other words, there
needs to be a “court-ordered change in the legal
relationship between the plaintiff and defendant.”
Id. at 604. Even absent a consent decree, where a
district court either incorporates the terms of settlement
into its final order or retains jurisdiction to enforce the
settlement, a party can be considered a prevailing one.
See Am. Disability Ass'n, Inc. v. Chmielarz, 289
F.3d 1315, 1320 (11th Cir. 2002). At this point, there is no
“prevailing party” entitled to attorney's
fees under the statute. But if this Court were to incorporate
and enforce the settlement agreement, it could establish
Kennedy as a prevailing party.
light of the nature of ADA cases, case law, and potential for
judicially incorporated settlements impacting a party's
right to attorney's fees, the Court finds that
entitlement to attorney's fees is a material term.
Because the parties failed to agree on all material ...