ZACKARY NEELD

v.

THOMAS COMBS

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ Case No. 5D2023-1803 LT Case No. 2021-CA-000403 _____________________________ ZACKARY NEELD, Appellant, v. THOMAS COMBS, Appellee. _____________________________ Nonfinal appeal from the Circuit Court for Flagler County. Christopher A. France, Judge. Katlin C. Cravatta and Caroline C. Dunkle, of Foley & Lardner LLP, Orlando, for Appellant. Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellee. February 14, 2025

MACIVER, J.

In this automobile negligence action, Zackary Neeld—the defendant below—(“Neeld”) appeals a nonfinal Order that determined that a settlement agreement was unenforceable and allowed Thomas Combs—the plaintiff below—(“Combs”) to withdraw his settlement proposal.

I. A binding settlement agreement was formed.

The Florida settlement statute requires that a proposal for settlement must (a) be in writing and state that it is being made pursuant to the settlement statute; (b) name the party making it and the party to whom it is being made; (c) state with particularity the amount offered to settle a claim for punitive damages, if any; and (d) state its total amount. § 768.79(2), Fla. Stat. (2022); see also Fla. R. Civ. P. 1.442(c). The offer “shall be accepted by filing a written acceptance with the court within 30 days after service.” § 768.79(4), Fla. Stat.; see

II. There was no legal basis to allow withdrawal of

the PFS or set aside the Acceptance. Once timely accepted, a proposal for settlement can be withdrawn or set aside only under certain circumstances, primarily involving statutory rules and procedures. For example, under the settlement statute and rule there is one mechanism for a party to withdraw a PFS—that is, in writing before the written notice of acceptance is filed. § 768.79(5), Fla. Stat.; Fla. R. Civ. P. 1.442(e). Here, Combs did not withdraw his offer in writing in the twenty-nine days between offer and

I.

Appellant (“Neeld”) and Appellee (“Combs”) were involved in a motor vehicle accident in which Combs claimed Neeld was at fault and caused his injuries. At the time of the accident, Neeld was insured under a policy that provided $1,000,000.00 of bodily injury coverage. Combs filed a pre-suit demand for $275,000.00, which was rejected by Neeld. Subsequently, on June 14, 2022, Combs’ legal counsel filed a proposal for settlement (“PFS”) per section 768.79 intending the amount to be for the policy limits of $1,000,000.00. However, counsel inadvertently made a scrivener’s error and tendered a PFS in the amount of $100,000.00. On July

II.

Combs argues on appeal that a valid settlement agreement was not formed because his legal counsel lacked authority to settle his case for $100,000.00, and his counsel’s scrivener’s error in drafting the PFS constituted a unilateral mistake, allowing for recission of the agreement. He further argues that Suarez Trucking is distinguishable from this case, and the arguments Neeld makes on appeal regarding the insufficiency of the evidence to support the trial court’s ruling were not properly preserved. I agree with Combs and therefore would affirm the trial court’s ruling.

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A.

Regarding Combs’ first argument that his counsel lacked legal authority to settle his case, Florida law makes clear that the settlement of a case by legal counsel requires the consent of the client. Dale v. Schaub, 301 So. 3d 1000, 1004 (Fla. 4th DCA 2020). The mere employment of an attorney does not give the attorney the implied or apparent authority to compromise the client’s cause of action or settle the client’s claim. Collado v. Pavlow, 951 So. 2d 69, 71 (Fla. 5th DCA 2007). A client may give his attorney special or express authority to compromise his cause of action, but such authority must be clear and unequivocal. Nehleber v. Anzalone, 345 So. 2d 822, 823 (4th DCA 1977). Further, “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.” Id. Florida courts have applied these rules when an attorney files a proposal for settlement. Schaub, 301 So. 3d at 1004 (holding that it was proper to strike a notice of acceptance and allow a withdrawal of proposal for settlement when the attorney lacked authority to enter the settlement agreement); see also Sosnick v. McManus, 815 So. 2d 759 (Fla. 4th DCA 2002). Finally, “[a] party seeking to enforce a settlement agreement bears the burden of showing that an attorney for the opposing party had the clear and unequivocal authority to settle on the client’s behalf.” U.S. Bank Nat’l Ass’n v. Rios, 166 So. 3d 202 (Fla. 2d DCA 2015).

Combs’ counsel stated at the hearing below that he did not have the authority to settle his client’s case for $100,000.00. This statement alone was sufficient to show that Combs’ counsel lacked the legal authority to settle the matter based on the error in the PFS. Although Combs’ counsel did not give these statements under oath, Neeld’s counsel did not raise any evidentiary objection before the trial court. In fact, Neeld did not challenge that Combs’ counsel lacked the legal authority to settle the case at the amount in dispute. Further, Neeld never presented any evidence to meet his burden of showing that Combs’ counsel had such authority. Because of this, the trial court was correct in granting Combs’ motion.

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B.

In addition, Combs argues that the error in the PFS constituted a unilateral mistake and that the settlement agreement should therefore be rescinded. Florida law permits a party to rescind a contract based on a unilateral mistake. Maryland Cas. Co. v. Krasnek, 174 So. 2d 541 (Fla. 1965); see also Tilden Groves Holding Corp. v. Orlando/Orange Cnty. Expressway, 816 So. 2d 658, 661 (Fla. 5th DCA 2002). However, rescission is improper where the mistake results from an inexcusable lack of due care, or unless the other party has so detrimentally relied on the contract such that it would be inequitable to order rescission. Id.

In this regard, a clerical or scrivener’s error in a settlement offer can constitute a unilateral mistake which will authorize the rescission of the settlement agreement. Florida Ins. Guar. Ass’n, Inc. v. Love, 732 So. 2d 456 (Fla. 2d DCA 1999); see also Schaub, 301 So. 3d at 1004. In Love, counsel for the Loves submitted an offer to settle their auto accident case in the amount of $210,000.00. 732 So. 2d at 456. The insurance company rejected the offer and mistakenly countered at $215,000.00 rather than $115,000.00. The Loves accepted the $215,000.00 offer and the insurance company sought to rescind the agreement based on a unilateral mistake. The appellate court ruled that rescission was an appropriate remedy; and even though the error certainly involved some degree of negligence, it did not support a finding of an inexcusable lack of due care. Id. at 457.

Initially, it should be evident that Neeld’s counsel knew of the mistake before accepting the offer. The pre-suit offer in the case was $275,000.00. When Combs’ counsel contacted Neeld’s counsel, she stated that the proposed amount was closer to getting the case resolved; to which Combs’ counsel replied, “I don’t understand,” and indicated that the “proposed amount was for limits,” which was $1,000,000.00 and not $100,000.00. Immediately after the call, Neeld’s counsel filed her Notice of Acceptance, capitalizing on the mistake of her opposing counsel. Combs’ counsel contacted her the next day about the error, and although he was correct when he stated this error should have been evident to her, she ultimately refused to withdraw the Notice of Acceptance.

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Although the issue of mutual mistake is briefly mentioned on appeal, the focus of Combs’ argument below and in his answer brief is that a unilateral mistake occurred and thus, rescission of the agreement is appropriate. I agree with Combs. Combs articulated to the trial court that a drafting error had occurred. Clearly there was some degree of negligence involved on behalf of Combs’ legal counsel. However, it does not appear to rise to the level of inexcusable lack of due care and is closely on point with the Love case. Nor was there any evidence that Neeld so detrimentally relied on the contract that it would be inequitable to order rescission. Once again, Neeld’s counsel never challenged Combs on this point or argued that there was not a unilateral mistake. As such, the trial court was correct in its ruling.

C.

The crux of Neeld’s argument below and on appeal is that a settlement agreement established under section 768.79 is formed solely on the statutory elements found in section 768.79, and the common law rules to form a contract or set aside a contract are inapplicable. Neeld relies on the principles set forth in the Florida Supreme Court’s opinion in Suarez Trucking to support his argument. The majority opinion adopts Neeld’s position. I disagree with Neeld’s argument, as the decision in Suarez Trucking is premised upon facts and arguments that are distinguishable from those here. In addition, the Court in Suarez Trucking did not rely only on the statutory requirements of section 768.79 but also relied on common law rules of contract formation in reaching its decision. As result, I would not expand Suarez Trucking to encompass the facts of this case.

Suarez Trucking involved a suit against a trucking company (Suarez Trucking) for injuries to the plaintiff (Souders) arising from an automobile accident involving one of Suarez Trucking’s dump trucks. Suarez Trucking v. Souders, 311 So. 3d 263, 265 (Fla.

14 2d DCA 2020)3. Once the complaint was filed, Souders’ workers’ compensation carrier filed a notice of lien against any settlement, judgment, or verdict obtained by Souders so as to recover any benefits previously paid to him. Id. at 266. Subsequently, Souders sent a PFS in the amount of $500,000.00 to Suarez Trucking. Id. Upon receipt of the offer, counsel for Suarez Trucking contacted Souders’ attorney to request that the settlement include the satisfaction of the worker’s compensation carrier lien from the proceeds of the $500,000.00. Souders’ attorney refused the request. Id. At that point, rather than rejecting the proposal, Suarez Trucking filed a notice of acceptance of the PFS. Id.

Nevertheless, Suarez Trucking, intent upon addressing the lien, issued a $500,000.00 settlement check but made it payable to Souders, his attorneys, and the workers’ compensation carrier. Id. Counsel for Souders then advised Suarez Trucking that inclusion of the workers’ compensation carrier was not contemplated by the essential terms of the PFS and that a valid settlement agreement had not been reached. Id. Suarez Trucking subsequently sought to reissue the check payable to Souders only. However, Souders responded that he was no longer interested in resolving the case as he considered the issuance of the check payable to the workers’ compensation carrier a rejection of the proposal for settlement. Suarez filed a motion to enforce the settlement agreement, and the trial court denied the motion finding that there was not a meeting of minds as to the essential terms of the contract. Id. The Second District affirmed on that basis. Id. at 272.

On review, the Florida Supreme Court held that a valid settlement agreement had been formed based on the framework of an offer and acceptance that was established by section 768.79 as well as basic contract principles. Suarez Trucking, 350 So. 3d at 38. The Court noted that section 768.79 sets forth a framework that recognizes “a simple and straightforward process in which after a written offer is made under the statute, if an acceptance of that offer is timely filed, an enforceable settlement agreement is

3 The Second District’s opinion (311 So. 3d 263) more fully explains the underlying facts that became the basis of the Florida Supreme Court’s opinion and thus, they are referenced here.

15 thereby created.” Id. at 42. The statute also provides a similar method for withdrawing an offer, which must be done in writing and served before a written acceptance is filed. Id. Further, the court explained that the written offer and acceptance under section 768.79 are not affected by other communications between the litigants per Florida Rule of Civil Procedure 1.442(f)(1), which provides that “[n]o oral communications shall constitute an acceptance, rejection, or counteroffer.” Id.

In determining whether a settlement had been formed, the Court analyzed these statutory principles in accordance with the basic rules of contract law. Id. The Court stated it has long been established that “[i]n order to create a contract, it is essential that there should be a reciprocal assent” to the contract terms. Further, the Court noted that the “general rule at common law” is simply “that [an] acceptance must comply with [the] terms of [the] offer.” Id. at 43.

Based on these principles, the Court correctly held that once Suarez Trucking accepted the terms of the PFS, by filing the notice of acceptance agreeing to the settle for the amount of $500,000.00 (without the added condition of settling the workers’ compensation carrier’s lien), a valid settlement agreement was formed, as the parties had mutually assented to the terms of the agreement. Suarez Trucking is different from the case on appeal, as the plaintiff in Suarez Trucking claimed that when he received the check it was not in accord with the agreement, and therefore, the agreement was void. The Court noted that the Second District's decision was in express and direct conflict with the decision of the Fourth District in Cirrus Design Corp. v. Sasso, in which the Fourth District held that the filed acceptance of an offer under section 768.79 resulted in the formation of a substituted agreement and performance thus was not necessary to the formation of the settlement contract. 95 So. 3d 308, 312 (Fla. 4th DCA 2012). As the Florida Supreme Court aptly emphasized, the trial court and Second District conflated acceptance of the PFS with performance. Suarez Trucking, 350 So. 3d at 41. The fact that Suarez Trucking issued the check with different terms than those which were agreed upon was immaterial to whether there was a valid contract formed based on mutual assent to the terms; and instead was relevant to whether there had been a breach of those

16 terms. As a result, the Court properly held there was a valid agreement—and approved the conflict decision in Cirrus—but remanded the case for a review of the issue regarding a potential breach of the agreement. Id. at 44.

The situation in the underlying case is entirely different. This case is about whether there was a valid offer made by Combs. His claim was that there was not a valid offer based on a lack of authority and/or a unilateral mistake. As Suarez Trucking emphasizes, there is still a requirement of a “valid offer and acceptance” to form a settlement agreement. Id. at 43 (emphasis supplied).

Although the majority opinion in the underlying case states that Suarez Trucking does away with any common law method to attack the formation of a contract or remedy to set aside a settlement agreement under section 768.79, I find no discussion of this anywhere in Suarez Trucking. In fact, as mentioned supra, the Court analyzed the case not only in light of section 768.79, but additionally under “general rules of contract law.” The Court spent a substantial portion of its opinion addressing contract formation under the common law and not just in relation to section 768.79; and, notably, it approved the Fourth District’s opinion that settlement agreements in this context are “governed by the same legal principles applied to other contracts.” Cirrus, 95 So. 3d at 312. As a result, it does not appear that Suarez Trucking dispenses with common law principles of contract formation in the context of section 768.79 or the ability to set aside a settlement agreement based on the procedural mechanism utilized in this case.

D.

Finally, Neeld argues for the first time on appeal that notwithstanding his argument under Suarez Trucking that a settlement agreement was formed, there were no affidavits or properly sworn evidence to support the trial court’s ruling setting aside the PFS and Notice of Acceptance based on Combs’ argument of lack of authority and unilateral mistake. The majority adopts this position. However, this argument was never raised below, either in Neeld’s pleadings or at the hearing regarding this matter; nor did Neeld file a motion for rehearing raising these issues.

17 Further, though Combs’ counsel gave unsworn testimony at the hearing, Neeld’s counsel did not object to this testimony. In fact, at the hearing below, Neeld’s counsel never challenged Combs’ counsel’s arguments that there was a unilateral mistake and that Combs’ counsel lacked authority to enter the settlement. Neeld solely argued in his pleadings and at the hearing below that once the PFS was made and accepted under section 768.79, a valid settlement agreement had been formed under the principles of Suarez Trucking. Whether there was a unilateral mistake or Combs’ counsel lacked authority to enter the settlement agreement was irrelevant to the analysis based on Neeld’s arguments.

Florida courts have consistently held that it is impermissible to take a position on appeal that is inconsistent with that taken below. Held v. Held, 617 So. 2d 358, 360 (Fla. 4th DCA 1993). “The rule of preservation, which is a keystone in our appellate process, dictates that ‘[i]n the absence of fundamental error, an appellate court will not consider an issue that has been raised for the first time on appeal.’” Vorbeck v. Betancourt, 107 So. 3d 1142, 1147 (Fla. 3d DCA 2012) (quoting Keech v. Yousef, 815 So. 2d 718, 719 (Fla. 5th DCA 2002)). To preserve an issue for appeal, “a party must make a timely, contemporaneous objection.” Cabrera v. Outdoor Empire, Inc., 134 So. 3d 573, 576 (Fla. 1st DCA 2014) (citing Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010)). “For an issue to be preserved for appeal, it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation.” Id. (citing Anderson v. Wagner, DPM, 955 So. 2d 586, 590 (Fla. 5th DCA 2006)). Finally, another preservation principle applies where a final order addresses substantive issues or reaches legal conclusions that have not been previously raised or challenged, and if this occurs, a party must file a motion for rehearing to preserve the alleged errors for appellate review. State v. Clark, 373 So. 3d 1128, 1131 (Fla. 2023).

The arguments regarding unilateral mistake, Combs’ counsel’s lack of authority to enter into the PFS, and the fact that Combs’ counsel’s testimony at the hearing was unsworn, are raised solely for the first time on appeal and are thus unpreserved. Neeld could have filed a motion for rehearing to address these issues but failed to do so.

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III.

I would affirm the trial court’s decision. Combs’ legal counsel lacked the authority to enter the settlement agreement at issue and thus, a valid offer was not made. In addition, the offer accepted by Neeld was born of a scrivener’s error which constituted a unilateral mistake and should void the settlement agreement. The majority noted a concern that accepting the position that a “valid” offer and acceptance under the section 768.79 does not constitute an enforceable settlement agreement would “unnecessarily inject incoherence into the law.” I agree with the majority. However, for the reasons outlined above, I do not believe the offer was “valid” in this case, and thus, this should not be the concern. The concern should be subjecting Combs to an agreement where he did not authorize the specific terms at issue. This, too, would “unnecessarily inject incoherence into the law.” Further, this would allow a party or counsel to capitalize on an obvious mistake by the other party and could potentially encourage “gotcha tactics.” As our court has stated, “gotcha! maneuvers” will not be permitted to allow one to succeed in litigation. State v. Zachary, 181 So. 3d 1204, 1206 (Fla. 5th DCA 2015); see also Andreaus v. Impact Pest Mgmt., 157 So. 3d 442, 445 (Fla. 2d DCA 2015) (trial courts should not reward gotcha tactics in litigation); Salcedo v. Asociacion Cubana, Inc., 368 So. 2d 1337, 1339 (Fla. 3d DCA 1979) (courts will not allow the practice of the ‘gotcha!’ school of litigation to succeed); Harley v. Lopez, 784 So. 2d 447, 448 (Fla. 3d DCA 1999) (refusing to reward “gotcha” tactics, which have been “long abhorred by this court”).

Finally, I do not read Suarez Trucking as barring the arguments made by Combs. It seems untenable that Combs should be held accountable for his legal counsel’s mistake when he did not authorize the settlement at issue. As the trial court ruled, this is a matter of “due process.” As a result, I would affirm the trial court’s decision and therefore, I respectfully dissent.