Land & Sea Petroleum, Inc. v. Business Specialists, Inc.
2011 Fla. App. LEXIS 216
| Fla. Dist. Ct. App. | 2011Background
- Land & Sea Petroleum contracted with Specialists to broker sale of its business and land; Specialists co-brokered with Continental.
- Brokers later produced a buyer whose contract with Land & Sea was not closed due to alleged essential term gaps.
- Brokers sued Land & Sea for unpaid commission and sought attorney’s fees and costs under the prevailing party provision in the brokerage contract.
- Land & Sea served proposals for settlement under Fla. Stat. § 768.79 and Fla. R. Civ. P. 1.442, naming the brokers and offering $500 per settling party.
- The magistrate recommended denial; the circuit court denied the fee/costs motion; the appeal followed seeking reversal and fee shift.
- The court ultimately reverses and remands for an evidentiary determination of reasonable attorney’s fees and costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are the § 768.79/1.442 proposals for settlement unambiguous? | Land & Sea argues proposals were unambiguous and properly framed. | Brokers contend ambiguity due to lack of who pays and scope of claims. | Proposals are not ambiguous; clear enough to resolve all claims. |
| Were the proposals for settlement made in good faith? | Land & Sea asserts good faith by obtaining summary judgment. | Brokers argue lack of good faith due to nominal $500 offers after limited discovery. | Proposals made in good faith; not an abuse of discretion. |
| Is Land & Sea entitled to attorney’s fees under § 57.105(7) against Specialists? | Contract allows prevailing party fees to be recoverable by Land & Sea against Specialists. | Contends Continental is not a party beneficiary and hence not liable. | Yes against Specialists; Continental not liable as intended third-party beneficiary. |
| Is Land & Sea entitled to costs under § 57.041(1)? | Prevailing party may recover costs; Land & Sea seeks costs. | Land & Sea entitled to taxable costs against brokers. | |
| May Continental be compelled to pay attorney’s fees under § 57.105(7) as a third-party beneficiary? | Continental should be liable as an intended beneficiary. | Continental was not an intended third-party beneficiary of the contract. | Continental is not an intended third-party beneficiary; not liable for fees. |
Key Cases Cited
- State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067 (Fla. 2006) (settlement proposals must be clear and definite to resolve claims)
- Carey-All Transp., Inc. v. Newby, 989 So.2d 1201 (Fla. 2d DCA 2008) (avoid nit-picking ambiguity in proposals for settlement)
- Sharkey v. State Farm Mut. Auto. Ins. Co., 928 So.2d 1263 (Fla. 4th DCA 2006) (nominal offers can be made in good faith with a reasonable liability assessment)
- Bus. Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So.3d 693 (Fla. 4th DCA 2010) (prior decision on summary judgment on brokers’ claim)
- Esposito v. True Color Enters. Constr., Inc., 45 So.3d 554 (Fla. 4th DCA 2010) (third-party beneficiary principles in contract)
- Gwen Fearing Real Estate, Inc. v. Wilson, 430 So.2d 589 (Fla. 4th DCA 1983) (broker not necessarily a party to the contract; fees from contract not automatically awarded to brokers)