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Sherman v. Savastano

Florida Court of Appeals, Fourth District

June 21, 2017

STANLEY SHERMAN, Appellant,
v.
PAUL SAVASTANO, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward L. Artau, Judge; L.T. Case No. 502014CA015232XXXXMBAF.

          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 ...

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