DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
GLORIA PATRICIA SANCHEZ and BODY & SOUL RETREAT, LLC, a
Florida Limited Liability Company,
Appellants,
v.
JOHANA CINQUE and VINCENT CINQUE,
Appellees.
No. 4D16-2530
[ February 14, 2018 ]
Appeal and cross-appeal from the Circuit Court for the Seventeenth
Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No.
CACE-14-6027-12.
Nancy S. Paikoff of MacFarlane Ferguson & McMullen, Clearwater;
Philip J. Crowley of MacFarlane Ferguson & McMullen, Tampa; and
Michael B. Kadish of The Kadish Law Group, P.C., Santa Monica,
California, for appellants.
Kelly B. Stewart, Walter G. Campbell Jr., and Brent M. Reitman of
Krupnick Campbell Malone Buser Slama Hancock Liberman, P.A., Fort
Lauderdale, for appellees.
TAYLOR, J.
A day spa and aesthetician appeal a final judgment entered against
them for $814,694, after a jury found they were negligent in performing a
chemical peel on the plaintiff. The plaintiff alleged that the chemical peel
resulted in severe and permanent aggravation to her pre-existing skin
condition, rosacea. Appellants, the defendants below, argue that the trial
court abused its discretion in excluding the testimony of their expert
witness. They also argue that the trial court erred in granting the plaintiffs
a directed verdict on comparative negligence and denying the defendants’
motion for remittitur. Plaintiff cross-appeals, arguing that the trial court
erred in denying her motion for attorney’s fees after finding a proposal for
settlement ambiguous. We affirm the final judgment, but reverse the
denial of attorney’s fees.
Plaintiff Johana Cinque and her husband, Vincent Cinque, sued an
aesthetician, Gloria Sanchez, and a day spa, Body & Soul Retreat, LLC, for
injuries the plaintiff sustained as a result of a chemical peel. The plaintiff
alleged that the peel permanently aggravated her rosacea, a pre-existing
skin condition. The defendants alleged the plaintiff was comparatively
negligent by failing to follow medical advice.
Testimony during trial revealed that on March 19, 2013, the plaintiff
went to Body & Soul for a facial. Before the procedure, the plaintiff
completed a form stating that she had rosacea. Rosacea is a chronic
inflammatory skin condition of the face. The plaintiff’s condition was mild,
causing only a rosy flushing of her checks.
Sanchez performed a chemical peel on the plaintiff. Sanchez admitted
she did not read the form before she performed the procedure. Had she
known the plaintiff had rosacea, she would have used a different product
or done a test sample.
During the procedure, the plaintiff felt like her face was burning.
Immediately after the procedure, her face continued to burn and turned
bright red. Her face became blistered, bruised, scabbed, and crusted, and
it oozed.
At the time of the April 2016 trial, the plaintiff’s face was bumpy and
turned red easily from various triggers, such as the sun and increase in
temperatures. The plaintiff is a firefighter paramedic, and wearing her
bunker gear also causes her face to turn red. The bumps and redness are
in the exact shape of the burn to her face. She gets flare-ups anywhere
from two times a week to every day. People often ask if she is okay because
her face is red and ask what is wrong with her face.
The plaintiff testified that before the incident, her rosacea merely gave
her cheeks a rosy appearance. She had smooth skin, received
compliments all the time, and wore makeup only on special occasions.
Two coworker friends confirmed that before the procedure, the plaintiff
had a beautiful complexion and never wore makeup. They further testified
that as a result of the procedure, the plaintiff is no longer confident and
outgoing; she has become shy and antisocial.
Dr. Peter Wallach, a dermatologist, began treating the plaintiff for
rosacea in October 2009. Her condition was mild, and after a visit the
following month, Dr. Wallach noted her condition was improving. Dr.
Wallach did not see the plaintiff again for rosacea until the day after the
chemical peel, when he examined her for facial burns. Dr. Wallach
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diagnosed the plaintiff with severe irritant contact dermatitis, which is a
condition resulting from something that contacted and irritated the skin.
A chemical peel could irritate the skin. Dr. Wallach prescribed an
antibiotic cream. During follow-up visits, the plaintiff’s face was red and
hyperpigmented, so he gave her medication to reduce the inflammation.
In May 2013, Dr. Wallach noted that the rosacea had decreased but that
some hyperpigmentation remained. Dr. Wallach wrote prescriptions for
medication and directed her to return in four weeks, but she did not.
Dr. Thomas Zaydon, a plastic surgeon, examined the plaintiff in May
2014. Dr. Zaydon observed a mixed pattern of rosacea and scarring. The
chemical peel had taken away the skin’s protective barrier, permanently
damaging and injuring the plaintiff’s face. He testified that a chemical peel
is improper for a person with rosacea because it penetrates the protective
barrier of the skin and worsens the inflammatory process. In his opinion,
the plaintiff’s injuries, scarring, and disfigurement were permanent and
she would need a lifetime of dermatological care to control the outbursts;
she could never be returned to her pre-peel clinical appearance.
Dr. Zaydon suggested that the plaintiff might benefit from laser
treatment, which would cost $4,000 to $6,000 to as much as $100,000.
She also might benefit from stem cell treatment. Such treatments cost
$5,000 each, totaling $10,000 to $15,000. A deep tissue facioplasty could
also be performed. Dr. Zaydon estimated the plaintiff’s future medical bills
would be around $20,000.
Dr. Quang Le, a dermatologist, treated the plaintiff on five occasions
from June 2013 to April 2014. Dr. Le gave her various medications to try
to reduce the redness and control her condition, but she continued to
experience redness and hyperpigmentation. Dr. Le suggested that her
condition could be improved with laser treatment.
Dr. Le opined that the exacerbation of the plaintiff’s rosacea was caused
by the chemical peel. He explained that a chemical peel on someone with
rosacea causes significant damage. The peel damaged the top and mid-
dermal area of the plaintiff’s skin and her condition went from very mild
to very difficult to control. According to Dr. Le, the redness will likely be
persistent, and it will take a lifetime of treatment for the plaintiff to
adequately manage and control her condition. Medical bills showed that
the plaintiff paid $80 or $95 for each office visit with Dr. Le. A mortality
table showed the plaintiff had a life expectancy of forty-eight more years.
On cross-examination, the plaintiff admitted she had not seen a
dermatologist in two years. She had not filled a prescription for her
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rosacea in two-and-a-half years and was not using any prescribed
medication at the time of trial. She last paid for medication in 2013 and
stopped using it in the middle of 2014, despite not having been advised by
any dermatologist to discontinue the use of medication for her rosacea.
She explained that she stopped taking her prescription medications
because they did not work and stopped regularly seeing Dr. Wallach and
Dr. Le because they only prescribed medication that did not work.
Before trial, the parties took the deposition of the defendants’ expert
dermatologist, Dr. Evan Schlam. In his deposition, Dr. Schlam testified
that he conducted an independent medical examination on the plaintiff in
January 2015, twenty-two months after the chemical peel. Dr. Schlam
also reviewed her medical records, including the records of dermatologists
Drs. Wallach and Le and the records of the plastic surgeon, Dr. Zaydon.
Dr. Schlam’s examination of the plaintiff lasted twenty minutes. The
plaintiff was on medication at the time of his examination. Dr. Schlam
noted mild red patches and mild dilation of the vessels. He diagnosed her
with mild rosacea because “there wasn’t anything pronounced” when he
performed his examination. Dr. Schlam opined that the rosacea he saw
was not caused by the chemical peel.
On cross-examination, Dr. Schlam admitted that he had not reviewed
any photos of the plaintiff before the peel. He conceded it would have been
helpful to review a photo of what she looked like before, but maintained it
was not necessary. Dr. Schlam said did not observe any scarring or
anything else that would be a concern as a long-term consequence of the
peel. He felt it was not important to review photos taken before the
procedure because the findings at the exam were so minimal that her prior
appearance did not affect his opinion.
Dr. Schlam further testified on cross-examination that he assumed the
plaintiff had a classic distribution of mild rosacea before the procedure
based on her medical records. Dr. Schlam assumed her rosacea
distribution was normal because Dr. Wallach’s records did not mention
otherwise. Dr. Schlam also assumed that a May 2010 visit to Dr. Wallach
for a cystic nodule or spot was for rosacea, even though the records for
that visit did not mention rosacea.
Before trial, the plaintiff moved in limine to exclude Dr. Schlam’s
testimony on the ground that his opinions failed to meet the admissibility
requirements under Daubert. In her motion and during the hearing, the
plaintiff argued that Dr. Schlam’s opinion as to causation lacked reliability
and an evidentiary foundation because he had no knowledge about her
appearance before the peel. She contended that Dr. Schlam relied on facts
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that lacked any evidentiary basis in forming his opinions; during his
deposition he made assumptions and guesses and stated things that were
not in the medical records. The defendants responded that the plaintiff’s
argument went to the weight of Dr. Schlam’s testimony, not to its
admissibility.
The trial court entered an order granting the motion to exclude Dr.
Schlam’s testimony. The court found that Dr. Schlam did not apply a
reliable methodology and used speculation and assumptions to arrive at
his conclusions. Specifically, Dr. Schlam claimed he was familiar with the
plaintiff’s condition before the procedure from reviewing her medical
records, but Dr. Wallach’s records did not state anything about the
distribution of plaintiff’s rosacea before the peel. Dr. Schlam assumed her
rosacea distribution was normal because Dr. Wallach’s records did not
mention otherwise. Dr. Schlam also assumed that a May 2010 visit to Dr.
Wallach for a cystic nodule or spot was for rosacea, even though the
records for that visit did not mention rosacea.
The trial court further found that Dr. Schlam failed to consider the
plaintiff’s appearance before the peel, which was necessary to determine if
the peel permanently aggravated her rosacea. Additionally, the trial court
reasoned that “[i]t is unreliable to base an entire causation analysis on a
one time examination while the patient was medicated for the subject
condition.” In sum, the trial court determined that Dr. Schlam’s opinions
were based on speculation and assumptions lacking any factual support
in the medical records and excluded his testimony. At trial, the defendants
did not call any witnesses.
Plaintiff moved for a directed verdict on liability and the affirmative
defense of comparative negligence. Sanchez admitted that she was
negligent and that she should not have done the procedure. As to the
defendants’ claim that the plaintiff was comparatively negligent because
she failed to follow her doctors’ instructions to return for future visits, the
plaintiff argued there was no testimony that this had anything to do with
causing her damages and that her alleged failure to follow her doctors’
instructions went to the issue of mitigation of damages rather than actual
liability.
The trial court granted plaintiff’s motions. Thus, the jury considered
only the issue of damages.
In closing arguments, the plaintiff requested $2,684.22 for past medical
expenses and $82,049 for future medical expenses. As to future medical
expenses, she argued (as she testified) that her foundation and soap each
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cost $30 a month; laser treatments, stem cell treatments, and facioplasty
would cost $20,000; and that she would need a lifetime of dermatological
care every two months at $95 a visit. The plaintiff also requested $30 a
day for pain and suffering, which equaled $34,110 for past pain and
suffering and $526,805 for future pain and suffering. The defendants
argued that damages for pain and suffering should be awarded only until
the plaintiff stopped seeking treatment.
The jury returned a verdict of $2,684.22 for past medical expenses,
$29,000 for future medical expenses, $23,000 for past pain and suffering,
and $760,000 for future pain and suffering, for a total damage award of
$814,694.22. The jury also awarded the plaintiff’s husband $10,000 for
past loss of consortium.
The trial court denied the defendants’ motion for new trial, or
alternatively, a motion for remittitur.
Exclusion of the Defendants’ Expert Witness
The defendants argue that the trial court misapplied Daubert and
wrongfully excluded their expert witness, Dr. Schlam. Plaintiff responds
that the trial court properly excluded Dr. Schlam’s testimony because his
opinion was not based upon reliable data and methodology. Dr. Schlam
lacked sufficient knowledge of the plaintiff’s pre-existing rosacea condition
from which he could form an opinion regarding aggravation of her
condition.
The standard of review of a trial court’s ruling on a motion in limine is
abuse of discretion. Dessaure v. State, 891 So. 2d 455, 466 (Fla. 2004).
“Such discretion is limited by the rules of evidence, and a trial court
abuses its discretion if its ruling is based on an ‘erroneous view of the law
or on a clearly erroneous assessment of the evidence.’” Patrick v. State,
104 So. 3d 1046, 1056 (Fla. 2012) (quoting McDuffie v. State, 970 So. 2d
312, 326 (Fla. 2007)).
Under Daubert, the trial court has “the task of ensuring that an expert’s
testimony both rests on a reliable foundation and is relevant to the task at
hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). The
trial court must consider “whether the reasoning or methodology
underlying the testimony is scientifically valid and of whether that
reasoning or methodology properly can be applied to the facts in issue.”
Id. at 592-93. The Daubert test, as codified in section 90.702, requires
that “[t]he testimony is based upon sufficient facts or data”; “[t]he
testimony is the product of reliable principles and methods”; and “[t]he
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witness has applied the principles and methods reliably to the facts of the
case.” “The proponent of expert testimony must, when properly
challenged, establish the basis for its admissibility by a preponderance of
the evidence.” Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. 1st
DCA 2015).
Under section 90.791 and Daubert, the trial courts must “act as
gatekeepers, excluding evidence unless it is reliable and relevant.” Crane
Co. v. DeLisle, 206 So. 3d 94, 101 (Fla. 4th DCA 2016). “The court’s
gatekeeping function requires more than simply ‘taking the expert’s word
for it.’” Id. at 101 (quoting United States v. Frazier, 387 F.3d 1244, 1265
(11th Cir. 2004) (en banc)).
In this case, the trial court conducted a thorough Daubert analysis
before excluding the testimony of Dr. Schlam. The trial court found that
Dr. Schlam failed to apply reliable methodology and that his opinions were
based upon unfounded assumptions and thus lacked evidentiary value.
Dr. Schlam rendered an opinion that the chemical peel the defendants
applied to the plaintiff’s face did not cause any permanent exacerbation of
the plaintiff’s rosacea. His opinion was based upon a brief medical
examination of the plaintiff, a review of the plaintiff’s medical records, and
photographs of the plaintiff taken after the chemical peel. As the trial
court pointed out, Dr. Schlam never reviewed any photographs of the
plaintiff taken before the chemical peel to determine her pre-incident
condition. Further, he relied on Dr. Wallach’s medical records to form his
opinion regarding the severity of the plaintiff’s rosacea before the subject
chemical peel. In doing so, he made unwarranted inferences and
assumptions as to her pre-existing condition because Dr. Wallach’s
records did not provide sufficient information as to the pre-incident
intensity and distribution of her rosacea and other conditions related to
her rosacea. The trial court found that Dr. Schlam’s conclusions were
based on speculation and assumptions.
Although courts have recognized that a physical examination and
review of medical records may qualify as an acceptable and reliable
methodology, see, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 762
(3d Cir. 1994), an expert’s opinion should not, as here, be based on
assumptions not rooted in any facts actually contained in the medical
records relied upon. We conclude that the trial court properly excluded
the testimony of the defendants’ expert, Dr. Schlam.
Directed Verdict on Comparative Negligence
The defendants also argue the trial court erred in directing a verdict in
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the plaintiff’s favor on the issue of comparative negligence, because
evidence that the plaintiff’s own behavior in ignoring medical advice to
continue treatment and take medication created a jury question as to
whether the plaintiff contributed to her condition. We disagree. The trial
court properly granted plaintiff’s motion for directed verdict on the issue
of comparative negligence because the defendants offered no evidence to
support this defense. The defendants did not present any evidence that
the plaintiff’s failure to follow her doctors’ advice contributed to the
permanent aggravation of her rosacea. No medical expert testified that the
plaintiff’s alleged failure to seek medical treatment caused or contributed
to her injury. See Norman v. Mandarin Emergency Care Ctr., Inc., 490 So.
2d 76, 79 (Fla. 1st DCA 1986) (stating that mere speculation by the
defendants, without supporting evidence, is insufficient to establish
comparative negligence).
Denial of Motion for Remittitur
Next, the defendants contend the trial court abused its discretion in
denying their motion for remittitur. We reject this claim because the jury’s
award for future medical expenses and pain and suffering was not clearly
excessive and was supported by the record.
“The circuit court’s determination on an issue of remittitur is reviewed
using an abuse of discretion standard.” Sch. Bd. of Broward Cnty. v. Pierce
Goodwin Alexander & Linville, 137 So. 3d 1059, 1072 (Fla. 4th DCA 2014);
see also Lassitter v. Int’l Union of Operating Eng’rs, 349 So. 2d 622, 627
(Fla. 1976).
“A jury is accorded wide latitude in determining the amount of non-
economic damages.” Hendry v. Zelaya, 841 So. 2d 572, 575 (Fla. 3d DCA
2003). “The fact that a damage award is large does not in itself render it
excessive nor does it indicate that the jury was motivated by improper
consideration in arriving at the award.” Allred v. Chittenden Pool Supply,
Inc., 298 So. 2d 361, 365 (Fla. 1974). A verdict should not be declared
excessive “merely because it is above the amount which the court itself
considers the jury should have allowed.” Bould v. Touchette, 349 So. 2d
1181, 1184 (Fla. 1977). The verdict should be disturbed only when “it is
so inordinately large as obviously to exceed the maximum limit of a
reasonable range within which the jury may properly operate.” Id. at 1184-
85.
In determining whether to grant a remittitur, a court considers the
following criteria:
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(a) Whether the amount awarded is indicative of prejudice,
passion, or corruption on the part of the trier of fact;
(b) Whether it appears that the trier of fact ignored the
evidence in reaching a verdict or misconceived the merits of
the case relating to the amounts of damages recoverable;
(c) Whether the trier of fact took improper elements of
damages into account or arrived at the amount of damages by
speculation and conjecture;
(d) Whether the amount awarded bears a reasonable
relation to the amount of damages proved and the injury
suffered; and
(e) Whether the amount awarded is supported by the
evidence and is such that it could be adduced in a logical
manner by reasonable persons.
§ 768.74(5), Fla. Stat.
The record in this case does not show any impropriety that may have
led to the size of the verdict for the plaintiff’s future pain and suffering,
nor is there any evidence that the jury was influenced by considerations
outside of the record. The plaintiff introduced ample evidence of how the
effects of the procedure caused physical impairment, disfigurement,
mental anguish, inconvenience, aggravation of her rosacea, and loss of
capacity for the enjoyment of life. Her skin is no longer smooth and her
rosacea is no longer mild. She has permanent scarring, bumpy skin, and
regular flare ups in the shape of the burn. Before the procedure the
plaintiff was outgoing and social, but now she is shy and anti-social.
In short, as to the award of future pain and suffering, the defendants
have not shown that the award “is so inordinately large as obviously to
exceed the maximum limit of a reasonable range within which the jury
may properly operate.” Bould, 349 So. 2d at 1184-85.
The award for future medical expenses and makeup was also supported
by the record. The plaintiff introduced evidence that her foundation and
soap to reduce redness each cost $30 a month. Additionally, Dr. Le
testified that the cost of laser treatment, stem cell treatment, and
facioplasty would be $20,000. Further, both Drs. Le and Zaydon testified
that her condition would require a lifetime of treatment, and past medical
bills showed office visits in the amount of $80 and $95 per visit. Although
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the plaintiff had not sought medical treatment in the two years preceding
trial, she presented expert medical evidence that her injury was
permanent, requiring a lifetime of treatment.
In sum, because the defendants did not show the trial court abused its
discretion in denying the motion for remittitur, we affirm on this issue.
Cross-appeal on denial of the plaintiff’s attorney’s fees
After the jury verdict, the plaintiff moved for fees and costs pursuant to
a proposal for settlement under section 768.79(6)(b) and rule 1.442. She
attached a copy of the proposal for settlement and release in support. The
proposal for settlement, which had a certificate of service dated November
24, 2015, offered to settle the case for $175,000. Paragraph 2 of the
release, however, named individuals who were not parties to the litigation.
Specifically, the second paragraph stated:
The undersigned through their heirs, executors,
administrators, and assigns, further agree to indemnify and
hold harmless GLORIA PATRICIA SANCHEZ from and against
any and all claims resulting from the alleged negligence of
GLORIA PATRICIA SANCHEZ, its heirs, agents, servants or
employees by any and all third parties claiming subrogation
rights (whether they be statutory, contractual or common
law), to recover from GLORIA PATRICIA SANCHEZ any monies
paid or due to be paid by the third party or parties to or on
behalf of JAMES WALLER, as Personal Representative of the
[sic] PAULA FINEN, deceased, and JAMES WALLER, her
husband, individually, for medical expenses or lost wages
whether or not the expenses is considered to be or to have
been paid by a collateral source.
The defendants argued that the proposal for settlement was ambiguous
because of its reference to unknown non-parties, James Waller and Paula
Finen. After a hearing, the trial court denied the motion for fees. The
plaintiff cross-appealed the denial of her motion.
The plaintiff argues the trial court erred in denying her motion for fees
because the proposal for settlement and release were not ambiguous. The
typographical error in the release was not inconsistent with the proposal
for settlement. Any possible ambiguity would be resolved by looking at the
proposal and release as a whole.
An order declining to enforce a proposal for settlement is reviewed de
10
novo. Kiefer v. Sunset Beach Invs., 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) (“The standard of review in determining whether a proposal
for settlement is ambiguous is de novo.”).
A proposal for settlement “must state with particularity any relevant
conditions and all non-monetary terms.” Palm Beach Polo Holdings, Inc. v.
Vill. of Wellington, 904 So. 2d 652, 653 (Fla. 4th DCA 2005). The proposal
should “be as specific as possible, leaving no ambiguities, so that the
recipient can fully evaluate its terms and conditions.” Id. (quoting
Swartsel v. Publix Super Markets, Inc., 882 So. 2d 449, 452 (Fla. 4th DCA
2004)). A proposal for settlement must be “read as a whole” and “is not
ambiguous unless a genuine inconsistency, uncertainty, or ambiguity in
meaning remains after resort to the ordinary rules of construction.”
Alamo, 112 So. 3d at 630.
“[G]iven 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.” State
Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).
“Therefore, parties should not ‘nit-pick’ the validity of a proposal for
settlement based on allegations of ambiguity unless the asserted
ambiguity could ‘reasonably affect the offeree’s decision’ on whether to
accept the proposal for settlement.” Alamo, 112 So. 3d at 629 (quoting
Carey–All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA
2008)).
Although a proposal for settlement should “be as specific as possible,
leaving no ambiguities, so that the recipient can fully evaluate its terms
and conditions,” see Palm Beach Polo Holdings, 904 So. 2d at 653, this
general principle does not make the proposal for settlement invalid in this
case because the proposal and release were not ambiguous. There was no
doubt that the plaintiff was offering to settle the case against Defendant
Sanchez for $175,000 and that the release would prevent Sanchez from
ever being sued again by the plaintiff for injuries relating to the March 19,
2013 procedure. The proposal and release stated with particularity the
relevant conditions and all non-monetary terms. Read as a whole, the
proposal and release did not have any ambiguities that prevented Sanchez
from fully evaluating the terms and conditions. Although the release
contained a reference to non-parties, this was clearly a “cut and paste”
typographical error that did not create an ambiguity that could have
reasonably affected Sanchez’s decision whether to accept the proposal.
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The cases the defendants rely on are distinguishable because those
cases involved a patent ambiguity in the amount of the settlement. See
Stasio v. McManaway, 936 So. 2d 676, 678 (Fla. 5th DCA 2006) (finding
patent ambiguity where the proposal offered to settle for $60,000, but
release that accompanied proposal spelled out $59,000 while also
referencing $60,000 in numerals); Gov’t Emps. Ins. Co. v. Ryan, 165 So.
3d 674 (Fla. 4th DCA 2015) (finding proposal that spelled out $100,000 in
words but also referred to $50,000 in numerals contained patent
ambiguity). The defendant’s reliance on South Florida Pool & Spa Corp. v.
Sharpe Investment Land Trust Number J, 207 So. 3d 301, 304 (Fla. 3d DCA
2016), is also misplaced because in that case an ambiguity between the
proposal and the release made it unclear what claims the offer was meant
to include. Here, in contrast, the proposal and release made clear which
claims the plaintiff was offering to settle and the amount to settle them.
More on point is Kiefer v. Sunset Beach Investments, LLC, 207 So. 3d
1008 (Fla. 4th DCA 2017). In that case, one of the defendants served a
proposal for settlement on the plaintiff offering to settle the case solely
against that defendant. The proposal incorporated a release in which two
paragraphs limited the release to that defendant, while two other
paragraphs did not mention that defendant’s name. In reading the
settlement and release as a whole, however, we found no ambiguity. We
explained that all of the paragraphs related solely to that defendant and
the plaintiff, and the two paragraphs that did not include that defendant’s
name were in between other paragraphs that did include his name. See
also Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., 176 So. 3d 305, 309
(Fla. 3d DCA 2015) (finding that naming attorneys in releases did not
create an ambiguity between proposals and releases). Here, as in Kiefer,
when one reads the proposal and release as a whole, it is clear that the
proposal and release relate only to Sanchez and the plaintiff.
Further, courts have recognized that typographical errors do not
automatically create an ambiguity. In Mathis v. Cook, 140 So. 3d 654,
656-57 (Fla. 5th DCA 2014), the court recognized that there were
typographical errors in the release; however, the errors did not create an
ambiguity. Rather, it was apparent from the release that in order to settle
the matter with one defendant, the plaintiffs would be required to release
all three defendants. Similarly, in Floyd v. Smith, 160 So. 3d 567, 569-70
(Fla. 1st DCA 2015), the court found that a typographical gender error in
the proposal did not result in any ambiguity which could have affected
appellant’s consideration of the proposal. See also Jefferson v. City of Lake
City, 965 So. 2d 174, 175 (Fla. 1st DCA 2007) (typographical error in
proposal for settlement citing to nonexistent statute did not render
proposal invalid where notice of proposal cited to correct statute number).
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In sum, we conclude that the trial court erred in declining to enforce
the proposal for settlement because, taken as a whole, no ambiguity
existed that would have affected Defendant Sanchez’s ability to make a
decision.
Affirmed on direct appeal, and Reversed on cross-appeal.
WARNER, J., and BUCHANAN, LAURIE, E., Associate Judge, concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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