Proposals for Settlement in Florida Not Easily Set Aside

In Neeld v. Combs, Case No. 5D2023-1803, 2025 Fla. App. LEXIS 1201 (Fla. 5th DCA Feb. 14, 2025), the trial court determined that the parties' settlement agreement was unenforceable, allowing the plaintiff to withdraw his settlement proposal over four months after acceptance based on an alleged mistake the plaintiff had made with regards to settlement amount. However, the appellate court found that a binding settlement agreement was formed where a proposal for settlement was expressly made pursuant to the provisions of section 768.79 and rule 1.442, signed by plaintiff's counsel, e-filed with the court, e-served on defendant's counsel, and timely accepted by defendant in writing. The appellate court found that the settlement agreement could not be set aside based on the fact that proposal for settlement was the product of a unilateral mistake, as an agreement made pursuant to section 768.79 essentially operates as a consent judgment and common law methods for attacking contract formation are not available to unwind those agreements. The appellate court found no legal basis to allow plaintiff to withdraw his proposal for settlement or set aside defendant's acceptance. The argument that plaintiff's counsel lacked authority to settle for stated amount was rejected, because the proposal was signed and served by counsel and notice of service was filed with trial court, showing objective evidence of counsel's authority to make the proposal existed. The appellate court also noted that the plaintiff offered no objective evidence supporting his assertion that counsel lacked authority and whether plaintiff subjectively intended a different settlement amount is irrelevant to the analysis.

This case may seem basic, but our office has seen an increase in parties looking to back out of the settlement agreements they enter into, claiming the exact same defenses. If you submit a Proposal for Settlement to the other side and it is accepted, you are bound by that offer. Conversely, if you make an offer for settlement and this is advised to the trial court, it will be upheld, with the possibility of fees and costs being assessed if the settlement agreement is wrongfully repudiated by the offeror or offeree.

If you are interested in receiving a copy of this decision or wish to discuss this issue further, please feel free to reach out to us at blog@miamimaritimelaw.co or 305.377.3700.

Florida Court Clarifies Personal Jurisdiction Over Non-Residents

In Pianezza v. Mia Collection Servs.. LLC, 2024 Fla. App. LEXIS 1784 (Fla. 3d DCA March 6, 2024), an action against non-resident principal and employee of foreign limited liability company alleging claims of fraud in the inducement, negligent misrepresentation, breach of express warranty, and conspiracy stemming from LLC's provision of counterfeit merchandise was not dismissed for lack of personal jurisdiction and the defendants appealed. The appellate court found that the corporate shield doctrine did not protect defendants from the trial court's exercise of personal jurisdiction where the complaint sufficiently alleged that defendants committed a tortious act within Florida by directing telephonic and electronic communications into Florida in which they allegedly fraudulently misrepresented the authenticity of merchandise sold to the plaintiff. The appellate court explained that the corporate shield doctrine will not operate to bar personal jurisdiction in Florida over an individual defendant that commits a tortious act in Florida, regardless of whether it was on behalf of a corporate employer.

The appellate court also found that defendants' affidavits were insufficient to shift the burden back to the plaintiff to demonstrate why jurisdiction was proper where, although both defendants denied in their declarations that they directed a phone call, text message, or e-mail to anyone in the state of Florida, they qualified these statements by stating they never did so on their own behalf . The qualification by these defendants failed to negate the allegation that they committed tortious acts in Florida by sending and/or directing telephonic and electronic communications into Florida. This, the court explained, leaves open the inference that they did direct phone calls, text messages, and/or emails into Florida in their capacity as employees of the LLC. The appellate court also found that principal's declaration as a corporate representative on behalf of LLC contained nothing more than legal conclusions, which plaintiff was not required to refute.

The appellate court therefore found that the trial court properly concluded that sufficient minimum contacts existed because defendants knew plaintiff was located in Florida and, therefore, knew their alleged misrepresentations would impact a Florida resident and would cause injuries in Florida. Thus, these non-resident defendants are required to defend the case brought against them in Florida.

If you are interested in receiving a copy of this decision or wish to learn more about the impact of this decision, please feel free to reach out to us at admin@miamimaritimelaw.co or blog@miamimaritimelaw.co.

Prevailing-Party: Revisiting the Right to Attorney's Fees Under the Contract in Florida

A little reported decision with big impact has just come down from the Florida Supreme Court. In Levy v. Levy, No. SC20-1195 (Oct. 7, 2021), the Florida Supreme Court ruled in a marital case that Florida Statute section 57.105(7) was not applicable in a prevailing party attorney’s fee provision. In other words, just because there is a prevailing party attorney’s fee provision in a contract does not mean that the other party that becomes the prevailing party automatically get their attorney’s fees.

In Levy, the former husband filed a motion to compel the former wife to comply with a settlement agreement they had previously entered into. That agreement had a prevailing party attorney’s fee provision. Both sides sought attorney’s fees based on the clause and section 57.105(7), a statute which was thought by operation of law, converts unilateral fee provisions into reciprocal provisions. The trial court ruled against the former husband but the wife was not granted her attorney’s fees as “entitlement to attorney’s fees and costs is only contemplated against the party who is found to be in violation of th[e] Agreement.’” Id. at 3 (citation omitted). The appellate court affirmed on all issues except as to the rejection of the former wife’s request for attorney’s fees.

On appeal to the Florida Supreme Court, Justice J Grosshans, citing a conflict between Levy and another case, Sacket v. Sacket, 115 So. 3d 1069 (Fla. 4th DCA 2013), found that by the plain reading of section 57.105(7), it “only applies to a provision that confers on a party the right to attorney’s fees while not affording a comparable right to the other party.” Levy at 6-7. The court found that the provision in question did not confer a right to fees on one identifiable contracting party to the exclusion of the other party but instead “entitles either party to an award of attorney’s fees upon demonstrating that the other party violated the [contract].” Id. at 7. Thus, both parties had a right to attorney’s fees under the clause and thus, as there was no violation of the contract proven, no attorney’s fees were due to be awarded.

As reported in the Daily Business Review, this ruling is causing some lawyers to worry that the decision will spark a rise in frivolous litigation. This view appears correct as many now need to immediately amend their contracts to adjust to this decision. This ruling requires more contract wordsmithing in what should be a pretty straightforward prevailing party clause. You must now write that the prevailing party is either the offensive or defensive party, as failing to do so, a defensive party, like Ms. Levy, does not get her fees if she wins.

This decision is a siren call for contract redrafts, especially those with prevailing attorney’s fees provisions. If you are interested in receiving a copy of this decision or wish to discuss it further, please feel free to reach out to me at blog@miamimaritimelaw.co, lawofficesofmov@gmail.com or at 305.377.3700.

New Summary Judgment Standard in Florida--More Like the Feds

As has been expected as a result of the Florida Supreme Court’s opinion in December 2020 advising its intent to change the summary judgment rule 1.510, the Court has now amended that rule as of May 1, 2021 in IN RE: AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE 1.510, 46 Fla. L. Weekly S95 (Fla. April 29, 2021). The highlights include the following:

• The Florida Supreme Court actually replaced the text of Rule 1.510 with Federal Rule of Civil Procedure 56 with a few “tweaks.”

• 1.510(a) now says that the rule will be construed “in accordance with the federal standard” meaning we need to cite to federal cases for a while.

• Rule 1.510 makes the summary judgment standard like the directed verdict standard: Both focus on “whether evidence presents a sufficient disagreement to require submission to a jury.” Both standards make the burden for showing a genuine issue of fact to be equal with the burden of proof at trial.

• To obtain summary judgment, it is not necessary for the non-movant to “disprove” the other side’s case (if the non-moving party has to prove “x” to win at trial, then the party moving for summary judgment can either (a) produce evidence to show that “x” is not so, or (b) that the non-movant lacks the evidence to prove “x”.

• The test for whether a genuine issue of fact exists asks the trial judge to decide whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

• The trial judge must articulate the reasons on the record for granting or denying a motion for summary judgment (the Federal rule actually makes it permissive, while 1.510(a) makes it mandatory).

• Summary judgment hearings must be set forty (40) days before the hearing (not 20 like the old rule), and responses must be issued within twenty (20) days, not five days, or two days like the old days…