Sherman v. Savastano
220 So. 3d 441
Fla. Dist. Ct. App.2017Background
- Paul Savastano sued Stanley Sherman after being struck in a crosswalk; Savastano’s wife briefly asserted a loss-of-consortium claim but dropped it.
- About a year after suit, Sherman served a proposal for settlement offering $200,000 and stating: “The parties will execute a joint stipulation for dismissal with prejudice of the action.”
- Savastano did not accept the offer; at trial the jury awarded $335,000 but found Savastano 75% at fault, yielding a net recovery of $75,014.13 after offsets.
- Sherman moved for attorney’s fees under Fla. Stat. § 768.79 because the judgment was at least 25% less than his offer; Savastano argued the proposal was ambiguous and failed Rule 1.442 particularity requirements.
- The trial court denied Sherman’s motion as unenforceable; Sherman appealed. The appellate court reviewed the denial de novo.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Sherman’s proposal was ambiguous/failed Rule 1.442 particularity because it conditioned settlement on a “joint stipulation for dismissal” and did not attach language of the stipulation | The phrase was ambiguous (only one plaintiff existed), lacked the stipulation language, and thus did not meet Rule 1.442(c)(2)(C),(D) particularity | The dismissal condition tracked Rule 1.420 and expressly stated dismissal “with prejudice,” so it was sufficiently clear for an informed decision without additional language | The proposal satisfied the particularity requirement; the dismissal condition was sufficiently clear and not reasonably ambiguous |
| Whether Sherman was entitled to attorney’s fees under § 768.79 because the judgment was at least 25% less than his offer | Savastano contended the offer was unenforceable due to ambiguity; thus fees should be denied | Sherman contended the offer was enforceable and § 768.79 fees were warranted because plaintiff’s recovery was less than 75% of the offer | Court reversed denial of fees and remanded to enter an order granting attorney’s fees and hold an evidentiary hearing to determine amount |
Key Cases Cited
- Kiefer v. Sunset Beach Invs., LLC, 207 So.3d 1008 (Fla. 4th DCA 2017) (standard of review for enforcement of proposals for settlement)
- State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067 (Fla. 2006) (particularity can be met by proposed release language or a summary that eliminates reasonable ambiguity)
- Saenz v. Campos, 967 So.2d 1114 (Fla. 4th DCA 2007) (ambiguity defined as admitting more than one meaning; particularity requirement prevents ambiguities that could affect acceptance)
- Alamo Fin., L.P. v. Mazoff, 112 So.3d 626 (Fla. 4th DCA 2013) (applying Nichols on particularity and summaries of release language)
- 1 Nation Tech. Corp. v. A1 Teletronics, Inc., 924 So.2d 3 (Fla. 2d DCA 2005) (dismissal is a proper and relevant condition in an offer of judgment)
- Costco Wholesale Corp. v. Llanio-Gonzalez, 213 So.3d 944 (Fla. 4th DCA 2017) (courts should not nitpick offers; only ambiguities that could reasonably affect the decision defeat enforcement)