VISION PALM SPRINGS

v.

COSCAN PALM SPRINGS,

Third District Court of Appeal State of Florida

Opinion filed February 27, 2019. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D17-0200 Lower Tribunal No. 09-3544 ________________

Vision Palm Springs, LLLP, Appellant,

vs.

Michael Anthony Company, Michael Paolercio, Anthony Paolercio, Hugo Liberti, Palm Springs Town Homes, LLC, Coscan Palm Springs, LLC, Coscan Homes, LLC, Coscan Corporate Holdings, LLC, Albert C. Piazza, and Michael R. Neal, Appellees.

An Appeal from the Circuit Court for Miami-Dade County, Eric William Hendon, Judge.

Hall, Lamb, Hall & Leto, P.A., and Matthew P. Leto, and Vanessa Palacio, for appellant.

Akerman LLP, and Carrie Ann Wozniak (Orlando), and Jonathan S. Robbins (Ft. Lauderdale), for appellees Coscan Palm Springs, LLC, Coscan Homes, LLC, Coscan Corporate Holdings, LLC, Albert C. Piazza, and Michael R. Neal.

Before SALTER,¹ FERNANDEZ, and LINDSEY, JJ.

LINDSEY, J.

2

Vision Palm Springs, LLLP (“Vision”) appeals the trial court’s December 27, 2016 Order Granting the Coscan Defendants’ Motion to Enforce Settlement Agreement. Because we find, based on the undisputed evidence below, that the Coscan Defendants did not meet their burden to prove that the parties reached an agreement, we reverse and remand for further proceedings.

I.

FACTUAL AND PROCEDURAL HISTORY

Vision originally filed the underlying action in 2009 against Coscan Palm Springs, LLC; Coscan Homes, LLC; Coscan Corporate Holdings, LLC; Albert C. Piazza; and Michael R. Neal (collectively “Coscan” or the “Coscan Defendants”), following a failed real estate deal.² After several years of litigation, the parties began to discuss settlement. However, these discussions culminated in a disagreement over whether the parties had reached a binding and enforceable settlement agreement. On September 30, 2015, the Coscan Defendants filed their Motion to Enforce Settlement Agreement (“Motion to Enforce”). At the evidentiary hearing, the only evidence presented consisted of emails between counsel for the parties as well as the deposition of Meryl Sidikman (“the adjuster”), the representative of Coscan’s insurance carrier, Chubb Insurance Group (“Chubb” or “the carrier”). Although Chubb was not a party to the settlement, it was going to fund $275,000.00 of the settlement proceeds. On December 27, 2016, the trial court entered an order granting

II.

JURISDICTION

This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A). See Travelers Indem. Co. v. Walker, 401 So. 2d 1147, 1149 (Fla. 3d DCA 1981) (holding that a trial court’s order enforcing a settlement is a final, appealable order when there is nothing left for the court to do, other than to enforce what the order required of the parties).

III.

STANDARD OF REVIEW

“Settlements . . . are governed by the rules for interpretation of contracts.” Robbie v. City of Miami, 469 So. 2d 1384, 1385 (Fla. 1985) (citing Dorson v. Dorson, 393 So. 2d 632 (Fla. 4th DCA 1981)). Contract formation requires a manifestation of mutual assent,³ the existence of which is determined by an objective test. Id. A trial court’s finding of mutual assent “must be supported by competent substantial evidence.” Cheverie v. Geisser, 783 So. 2d 1115, 1119 (Fla. 4th DCA 2001) (citing Roggio-Wilgus v. Marlin, 699 So. 2d 1050, 1050 (Fla. 4th DCA 1997)). Moreover, the party seeking to enforce a settlement bears the burden of

3 This element of agreement is also sometimes referred to as a “meeting of the minds.” See Restatement (Second) of Contracts § 17 (Am. Law. Inst. 1981) (explaining that although “parties to most contracts give actual as well as apparent assent, . . . it is clear that a mental reservation of a party to a bargain does not impair the obligation he purports to undertake”).

III.

ANALYSIS

The sole issue on appeal is whether the Coscan Defendants met their burden in the trial court to prove that the parties had reached a valid and binding settlement agreement. Based on the undisputed record evidence before us, we find that they did not. Preliminary negotiations do not establish a sufficient manifestation of mutual assent to create an enforceable settlement agreement. Jaffe v. Jaffe, 147 So. 3d 578 (Fla. 3d DCA 2014) (citing Cheverie, 783 So. 2d at 1118). “To be judicially enforceable, a settlement ‘must be sufficiently specific and mutually agreeable as to every essential element.’” Id. (quoting Grimsley v. Inverrary Resort Hotel, Ltd., 748 So. 2d 299, 301 (Fla. 4th DCA 1999)). It is axiomatic under Florida contract law “that the acceptance of an offer that results in an enforceable agreement must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer.” Trout v. Apicella, 78 So. 3d 681, 684 (Fla. 5th DCA 2012); see also Hanson v. Maxfield, 23 So. 3d 736, 739 (Fla. 1st DCA 2009) (“An acceptance of a settlement offer will be effective to create a binding settlement only if it is absolute, unconditional, and identical with the terms of the offer.”); Sorocka v. Severe, 858 So. 2d 388, 389 (Fla. 3d DCA 2003) (“An

• June 17, 2015 – Vision’s counsel emailed Coscan’s counsel accepting the $275,000.00 pending “confirmation of the overall deal” by a third party who would be sharing in the proceeds of the insurance funds and other funds that were subject to a supersedeas bond in a separate action pending in Palm Beach County.⁴

• June 17, 2015 – Coscan’s counsel emailed the insurance adjuster, Meryl Sidikman, to inform her that Vision had accepted the $275,000.00 offer subject to the approval by the third party and his clients. In response, Ms. Sidikman acknowledged the email and thanked him for his “hard work.”⁵

4 See infra note 7.

5 Significantly, this was the last communication between the insurance adjuster and Coscan’s lawyer until September, 2015. Ms. Sidikman deposition testimony was as follows:

Q: After the email which is dated June 17, 2015 where you thanked Mr. Robbins for getting the settlement done, when was the next conversation that took place in regards to the settlement with Mr. Robbins? A: I believe the last time I spoke to Mr. Robbins about this case was on June 15th.

6

• June 23, 2015 to September⁸, 2015 – Ms. Sidikman took a leave of absence from her position with Chubb.

• June 26, 2015 at 11:38 a.m. – Counsel for co-defendant, Palm Springs Town Homes, emailed counsel for all parties asking that they “hold off getting signatures just yet” and identified several revisions to the settlement agreement requested by the parties, including (1) a change to when a satisfaction of judgment must be filed; (2) a modification to the release to make clear that Vision may continue to sue the sellers who were not parties to the agreement; and (3) clarifications to the language in the release.

• June 26, 2015 at 2:14 p.m. – Coscan’s counsel raised concerns that the proposed releases were insufficient to protect his clients from being brought back into the case by the sellers, who were not parties to the agreement. In

Q: So before the e-mail? A: Either the 15th or the 16th. I think we may have talked on the 16th. Q: That’s prior to the email? A: Correct. Q: So my question was, when was the next time after this e- mail that you spoke to him about the settlement? A: I did not speak to him about the settlement again until September of 2015. Yes, that would still be 2015. . . . Q: Between the date of the June 17th e-mail and September of 2015, your testimony is there were no communications with Mr. Robbins about the settlement agreement at issue? A: I believe it is the June 16th e-mail and that would be correct. Q: I’m looking at June 17th. A: June 17th? Oh, I apologize. You are right. Q: When I use the word communications, that means there were no emails, phone calls or any other mode of communications about this case with Mr. Robbins? A: That’s correct. (Emphasis added).

• June 26, 2015 at 4:54 p.m. – Counsel for co-defendant Palm Springs Town Homes emailed a revised proposed written settlement agreement (“First Revised Agreement”) to all parties for review. Counsel wrote: “Once you all have blessed, I will convert this redline to a final document and re-circulate for signature.”

• June 29, 2015 – Further revisions were made, and a second revised settlement agreement was circulated for approval (“Second Revised Agreement”). Counsel for co-defendant Palm Springs Town stated: “So provided that the revised releases meet with global approval, then I think we are ready to ink this deal. Please review and confirm we all can chase down our clients for signature.”

• June 30, 2015 – In an email to Coscan’s counsel, Vision’s counsel raised an issue as to who would act as the escrow agent for the funds being received by the insurance company.

• July¹, 2015 at 8:08 p.m. – Coscan’s counsel responded that he approves of David Rothstein acting in that capacity but defers to the carrier: “Ok with me if it’s ok with the carrier.”

• July¹, 2015 at 8:29 p.m. – Vision’s counsel emailed Coscan’s counsel and asked when the insurance carrier will confirm the settlement.

6 According to her deposition testimony, Ms. Sidikman reviews the amount of the payment and the terms of the release when analyzing a settlement agreement.

Q: What I want to know, if there is a settlement agreement that is proposed and it is written in final form, does the insurance company have to okay the final form before it can be signed off on by the insured? A: We would have to agree to the amount because we are going to be the entity paying the amount. And generally speaking I want to ensure that my insured is being protected by a release. The terms of the settlement agreement are what my insured has to live with. So they are really in control of the nonmonetary aspect.

• July⁷, 2015 – Vision’s counsel sent another e-mail to follow up on the carrier’s approval of the agreement, asking, “[h]ave you heard from the carrier on this? I would like to get this signed as soon as we can.”

• July⁹, 2015 at 6:59 a.m. – Vision’s counsel emailed Coscan’s counsel the following: “The carrier has not approved or agreed [to] the proposed settlement deal at this point. Given the [F]ourth’s ruling, I have to withdraw [Vision’s] consent to the proposed settlement agreement.”⁷

• July⁹, 2015 at 7:51 a.m. – Coscan’s counsel responded, stating: “We have a settlement.”

• July⁹, 2015 at 7:52 a.m. – Vision’s counsel replied stating: “I disagree at this point. Your last email said the carrier hadn’t approved it.” Here, no settlement was finalized prior to Vision withdrawing its consent. While the parties engaged in preliminary negotiations, there was no enforceable settlement agreement because there was no assent by all of the parties to an agreement that was sufficiently specific and mutually agreeable as to every essential element. Coscan’s counsel maintained throughout the negotiations that the insurance carrier would need to sign off before any agreement could be finalized. Thus, Coscan did not agree to the last of the proposed changes to the Second Revised

7 The proposed settlement agreement contemplated payment to Vision of a portion of a final judgment totaling $2,038,909.00 in favor of Palm Springs Town Homes, LLC in a separate action if affirmed by the Fourth District Court of Appeal. However, in an opinion dated July⁸, 2015, the Fourth District Court of Appeal reversed the trial court. See Michael Anthony Co. v. Palm Springs Townhomes, 174 So. 3d 428 (Fla. 4th DCA 2015).

IV. CONCLUSION

Because we conclude, for the reasons set forth above, that no binding and enforceable settlement agreement existed between the parties, we reverse the trial court’s order granting the Coscan Defendants’ Motion to Enforce Settlement Agreement and remand for proceedings consistent herewith. Reversed and remanded with instructions.