DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ANTHONY H. EVANS,
Appellant,
v.
JOSEPH A. DIAZ,
Appellee.
No. 4D22-2733
[July 12, 2023]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Michael A. Robinson, Judge; L.T. Case No.
CACE21020220.
Bradley P. Denniston of The Right Law Firm, P.A., Plantation, and
Robert C. Dominguez of The Founders Law, P.A., Miami Lakes, for
appellant.
Alyssa M. Reiter of Wicker Smith O’Hara McCoy & Ford, P.A., Fort
Lauderdale, for appellee.
WARNER, J.
Appellant challenges an order enforcing settlement of his personal
injury claim. The court found that the parties and their attorneys
approved the settlement. Because the record did not contain any evidence
that appellant approved the settlement, we reverse.
Appellant, the injured party, was represented by an attorney who
engaged in settlement negotiations with the insurer, and the attorney
agreed to settle appellant’s case for $4,000. However, upon receipt of the
settlement draft and release, appellant’s counsel immediately called the
insurer and told them that a mistake had been made, and appellant would
not be accepting the draft or cashing the check. Instead, appellant filed
suit a month later.
The insurer moved to enforce the settlement agreement, claiming that
appellant had agreed to the settlement. In the motion, the insurer recited
the back-and-forth settlement negotiations between appellant’s attorney
and the claims adjuster, and attached to the motion a letter establishing
that appellant’s counsel represented appellant for the claim. The insurer
also submitted an affidavit from its claims adjuster detailing his dealings
with the attorney. The motion included no evidence, nor did the motion
allege, that appellant had given authority to his attorney to settle for the
$4,000 amount, or that the attorney had full authority to settle appellant’s
claim at any amount.
Appellant filed a response in opposition contending no accord and
satisfaction had occurred. Rather, a misunderstanding had occurred as
to the settlement offer. Appellant, who spoke another language, believed
that his attorney had agreed to a $40,000 settlement, not a $4,000
settlement. He pointed out that his medical expenses from the incident
exceeded $17,000 and he had incurred attorney’s fees as well.
After a hearing on the motion, the court, apparently relying on the
claims adjuster’s affidavit and the motion, granted the motion to enforce
the settlement. The order provided: “The Court finds that there was
meeting of the minds. The terms were clear, and unambiguous. The offer
was understood and accepted by both parties and their legal counsel.”
Appellant filed a motion for rehearing, attaching his affidavit in which he
testified that he had not given his consent for his attorney to accept the
$4,000 settlement on his behalf, but the court denied the motion for
rehearing, resulting in this appeal.
Courts review settlement agreements under the principles of contract
law. Choate v. RySurg, LLC, 330 So. 3d 936, 940 (Fla. 4th DCA 2021).
Therefore, issues of contract interpretation and formation are reviewed de
novo, while factual findings are reviewed for competent, substantial
evidence. Id.; see also Hamilton v. Fla. Power & Light Co., 48 So. 3d 170,
172 (Fla. 4th DCA 2010). Accordingly, the issue of whether there was
mutual assent is reviewed for competent, substantial evidence, but the
overall question of whether there was an enforceable settlement agreement
is reviewed de novo.
While the appellant has not provided a transcript of the hearing on the
motion to enforce the settlement, this is not fatal to appellate review when
the error appears on the face of the record. See Garrison v. Garrison, 255
So. 3d 877, 878 (Fla. 4th DCA 2018) (providing that even without a
transcript, “facially apparent errors from the record will result in reversal”);
see also MTGLQ Invs., L.P. v. Merrill, 312 So. 3d 986, 993 (Fla. 1st DCA
2021) (“[Applegate] does not mean that absence of a transcript is always
fatal to an appeal. Instead, the issue is whether the appeal turns on
dispositive questions of fact that were, or could have been, established
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only in the proceedings not transcribed.”) (citing Applegate v. Barnett Bank
of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979)).
Here, the face of the record is clear that at the hearing on the motion
to enforce settlement the court relied on the motion and affidavit of the
claims adjuster in granting the motion. “[W]here a trial court’s ruling is
based entirely on written evidence, the appellate court is in the same
position as the trial court in weighing the evidence.” Holmes v.
Bridgestone/Firestone, Inc., 891 So. 2d 1188, 1191 (Fla. 4th DCA 2005).
While “settlements are highly favored and will be enforced whenever
possible,” Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985), “the
evidence must clearly demonstrate that there was mutual agreement to
the material settlement terms.” Thompson v. Estate of Maurice, 150 So. 3d
1183, 1188 (Fla. 4th DCA 2014) (quoting Cheverie v. Geisser, 783 So. 2d
1115, 1119 (Fla. 4th DCA 2001)).
In Nehleber v. Anzalone, 345 So. 2d 822 (Fla. 4th DCA 1977), this Court
articulated five rules of law to determine the enforceability of a settlement
agreement where attorneys negotiate settlements on behalf of their clients:
(1) A party seeking judgment on the basis of compromise and
settlement has the burden of establishing assent by the
opposing party. . . .
(2) The mere employment of an attorney does not of itself give
the attorney the implied or apparent authority to compromise
his client’s cause of action. . . .
(3) An exception to the general rule is a situation in which the
attorney is confronted with an emergency which requires
prompt action to protect his client’s interest and consultation
with the client is impossible. . . .
(4) A client may give his attorney special or express authority
to compromise or settle his cause of action, but such authority
must be clear and unequivocal. . . .
(5) An unauthorized compromise, executed by an attorney,
unless subsequently ratified by his client, is of no effect and
may be repudiated or ignored and treated as a nullity by the
client.
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Id. at 822–23 (internal citations omitted); see also DeJour v. Coral Springs
KGB, Inc., 293 So. 3d 502, 504 (Fla. 4th DCA 2020) (quoting Spiegel v. H.
Allen Holmes, Inc., 834 So. 2d 295, 297 (Fla. 4th DCA 2002) (“A trial court’s
finding that there was a meeting of the minds must be supported by
competent substantial evidence.”).
Thus, to prove mutual assent to an attorney-negotiated settlement, the
party seeking to enforce the settlement must prove that the opposing
party’s attorney had his or her client’s “clear and unequivocal grant of
authority” to negotiate on the client’s behalf, or that the client
subsequently ratified the unauthorized offer. DeJour, 293 So. 3d at 504
(quoting Ponce v. U-Haul Co. of Fla., 979 So. 2d 380, 383 (Fla. 4th DCA
2008)). Otherwise, the appellate court is “required to reverse” an order
enforcing that settlement. Id. (quoting Ponce, 979 So. 2d at 383). “[C]ourts
have been very stringent in what they find to be a ‘clear and unequivocal’
grant of authority.” Weitzman v. Bergman, 555 So. 2d 448, 449 (Fla. 4th
DCA 1990).
Here, appellee had the burden of establishing “clear and unequivocal
authority” that appellant had authorized his attorney to settle his case for
$4,000. Appellee presented no evidence that appellant had granted his
attorney authority to settle, nor did appellee demonstrate that appellant
had subsequently ratified the settlement. Appellee relies mainly on the
fact that appellant retained his attorney to pursue the claim, and the
attorney presented appellee with a letter of representation. However, “[t]he
mere employment of an attorney does not of itself give the attorney the
implied or apparent authority to compromise his client’s cause of action.”
Nehleber, 345 So. 2d at 823. The letter of representation neither explicitly
nor implicitly asserts authority to settle on appellant’s behalf. While
negotiations occurred between the attorney and the claims representative,
resulting in an agreement between them as to the settlement amount,
without some act constituting ratification, the agreement is only “[a]n
unauthorized compromise, executed by an attorney, . . . [which] is of no
effect and may be repudiated or ignored and treated as a nullity by the
client.” Id.; see also DeJour, 293 So. 3d at 504.
Consequently, we reverse the order approving settlement, as appellee
presented no evidence that appellant authorized or ratified the settlement
to justify its enforcement.
Reversed and remanded for further proceedings.
MAY and GERBER, JJ., concur.
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* * *
Not final until disposition of timely filed motion for rehearing.
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