       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                          E QUALCOM, CORP.,
                              Appellant,

                                     v.

GLOBAL COMMERCE CENTER ASSOCIATION, INC., a Florida not-for-
                   profit corporation,
                        Appellee.

                             No. 4D14-4108

                           [November 18, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy, III, Judge; L.T. Case No. 08-1242 CACE
21.

   Michael R. Bass of Michael R. Bass, P.A., Fort Lauderdale, for appellant.

  Michael R. D’Lugo and Michael A. Holtmann of Wicker, Smith, O’Hara,
McCoy & Ford, P.A., Orlando, for appellee.

SHEPHERD, CAROLINE, Associate Judge.

    E Qualcom Corp. (“Qualcom”) and its commercial landlord, Global
Commerce Center Association, Inc. (“Global”), were engaged in settlement
negotiations when negotiations stalled. Thereafter, Global filed with the
trial court a motion to enforce settlement. The trial court granted the
motion, finding that “the parties reached an agreement on the essential
elements of their settlement as evidenced by the chain of emails between
the parties and memorialized in the settlement stipulation entered into
evidence.” Qualcom appealed. We reverse because there was not
competent, substantial evidence of an agreement between the parties as
to all the essential terms of a settlement.

                       Relevant Procedural History

   Global is the owner of a commercial park located in Weston, Florida, in
which Qualcom is a unit owner.         Global is authorized to impose
assessments against unit owners in the business park for improvements,
maintenance, and payments related to the common areas.
    On January 10, 2008, Global filed a two-count complaint against
Qualcom. Count I was a lien foreclosure action for non-payment of
maintenance assessments; count II was a claim for money damages for the
unpaid assessments. Qualcom contested the allegations and filed a two-
count counterclaim for negligence and breach of contract. On September
3, 2009, the trial court granted Global’s motion for partial summary
judgment of foreclosure and entered final summary judgment against
Qualcom on its counterclaim. Qualcom appealed and this Court reversed,
holding that Global failed to prove the absence of genuine issues of
material fact relating to Qualcom’s allegations of damages from Global’s
failure to provide proper maintenance. E. Qualcom Corp. v. Global
Commerce Ctr. Ass’n, 59 So. 3d 347 (Fla. 4th DCA 2011).

    On March 14, 2012, the trial court granted Qualcom’s motion for partial
summary judgment as to the lien foreclosure count. A jury trial was set
for September 24, 2013, on Global’s claim for damages from unpaid
assessments and Qualcom’s counterclaims for negligence and breach of
contract. A hearing on the pending motions in limine was scheduled for
September 23. The weekend before trial saw a flurry of negotiations in the
form of emails between the lawyers for Qualcom (Samuel B. “Clay” Reiner
II (“Reiner”)) and Global (Leonard Wilder (“Wilder”)). Settlement appeared
imminent; however, several key issues required resolution before the
parties could finalize the agreement.

                      Email Settlement Negotiations

   Beginning September 21, 2013, at 5:59 p.m., an email from Wilder to
Reiner suggested there was an agreement to resolve the case: “Clay, I
think we have a potential settlement per $ terms discussed with you and
Michael.”

    According to Global, these settlement terms included: (1) Qualcom
would pay $26,250 over twelve months; (2) an insurance company would
pay Qualcom $15,000 to be transferred immediately to Global; (3) a
mutual release subject to enforcement of settlement; (4) Global will give
five days notice to cure any default by Qualcom and, if not cured, Global
gets a judgment for the current amount owed (approx. $70,000) plus
accrued assessments, less payments made; and (5) assignment of any rent
upon default to Global.

   Reiner responded by email on September 22: “I think all is well – just
getting confirmation for (sic) the you-know-who . . . .” Later the same day,
Wilder asked: “Clay, it’s been six hours. Do we have a settlement or not?
Please advise.” Reiner responded later that afternoon: “Yes we are settled,

                                     2
but first payment in October – he can’t do sooner – . . . . The rent payments
can’t be assigned – they already are to lender. But don’t worry . . . .”

   The remainder of the emails discussed cancelling the hearing and trial,
forwarding the proposed settlement agreement, and requests from Wilder
to Reiner to confirm that the case was indeed settled and that the parties
could finalize the documents. Reiner responded that he would have his
assistant cancel the trial. Several days later, after promptings from Wilder,
Reiner stated that he was in mediation and that he had an associate
working with the client on some revisions. Significantly, there was no
“smoking gun” email hammering out definitive settlement terms, and
Reiner never responded with any revisions to the settlement agreement.

   On October 15, 2013, frustrated with Reiner’s silence and the length of
time exhausted to cement the agreement, Global filed its Motion to Enforce
Settlement.

            Hearings on Global’s Motion to Enforce Settlement

   On March 7, 2014, the trial court began the hearing on Global’s Motion
to Enforce Settlement. Global introduced fifteen emails in support of its
contention that a binding settlement was reached.

   On August 29, 2014, at a subsequent hearing on the motion, Reiner
and Luis Navia, Qualcom’s principal, testified about five sticking points in
the negotiations that had not been resolved. First, Qualcom opposed
making twelve payments instead of fourteen; the shortened payment
schedule required it to pay $312.50 more per month. Second, Qualcom
opposed the assignment of rents—a factor mentioned in one of Reiner’s
September 22 emails. Third, Qualcom disagreed on the amount it should
pay if it defaulted under the settlement agreement. Fourth, Qualcom
disputed its responsibility for roof assessments—part of the lien
foreclosure count for which it had secured a summary judgment. Fifth,
Qualcom opposed the application of the $30,000 Global was holding
pending the outcome of the case. In addition, during his testimony, Reiner
waffled repeatedly about the scope of his authority to settle the case.

                                Discussion

    “The party seeking to enforce a settlement agreement bears the burden
of showing the opposing party assented to the terms of the agreement.”
Spiegel v. H. Allen Holmes, Inc., 834 So. 2d 295, 297 (Fla. 4th DCA 2002)
(citing Carroll v. Carroll, 532 So. 2d 1109 (Fla. 4th DCA 1988)). Here,
Global bears the burden of showing that the terms are sufficiently specific
and that there was mutual agreement as to every essential element. Don
                                     3
L. Tullis & Assocs., Inc. v. Benge, 473 So. 2d 1384, 1386 (Fla. 1st DCA
1985).

    The emails in this case demonstrate the lawyers’ failure to finalize the
terms of the settlement before cancelling the trial. Although such a
cancellation, without an actual settlement agreement, might have been the
proper subject for sanctions, it does not supply the missing material terms
of a settlement. Both attorneys desired a settlement, but their desire never
bore fruit. In fact, one of Reiner’s September 22 emails clearly refers to a
problem with rent assignment, a material term of the settlement that
Global wanted to enforce. Reiner’s admonition in that email, “don’t worry,”
is nothing more than an expression of optimism that a settlement could
be reached, not an acknowledgement that it had been accomplished.

   The record in this case fails to demonstrate the existence of an
enforceable settlement agreement.            Moreover, the record fails to
conclusively demonstrate whether, in fact, Reiner had the authority to
settle the case. See Ponce v. U-Haul Co. of Fla., 979 So. 2d 380, 383 (Fla.
4th DCA 2008) (reversing where record demonstrated that while attorney
had authority to negotiate settlement terms, “U-Haul failed to meet its
burden to prove that [the attorney] had a clear and unequivocal grant of
authority . . . to file a proposal for settlement”).

   Accordingly, we reverse the trial court’s order enforcing the settlement
agreement and remand for further proceedings. We affirm as to all
remaining issues.

GROSS and TAYLOR, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




                                     4
