       Third District Court of Appeal
                               State of Florida

                          Opinion filed March 11, 2015.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D14-2
                         Lower Tribunal No. 10-239-P
                            ________________


                    Russell Post Properties, Inc., etc.,
                           Appellant/Cross-Appellee,

                                        vs.

                                Leaders Bank,
                           Appellee/Cross-Appellant.



      An Appeal from the Circuit Court for Monroe County, Luis M. Garcia,
Judge.

     Buchanan Ingersoll & Rooney, and Jennifer Olmedo-Rodriguez and Mark S.
Auerbacher, for appellant/cross-appellee.

    Gunster, Yoakley & Stewart, and Amy Brigham Boulris, Timothy Nicholas
Thomes and Michael B. Green (Key Largo), for appellee/cross-appellant.


Before SHEPHERD, C.J., and LAGOA and SALTER, JJ.

     SHEPHERD, C.J.
      This appeal arises out of a dispute over the amount of a real estate

commission payable to Russell Post Properties, Inc. upon the transfer of Leaders

Bank’s substantially encumbered interest in the property to a third party. We

affirm the trial court’s determination that the amount owed by Leaders Bank to

Russell Post under the listing agreement is $1,250.00. However, we reverse the

court’s decision, denying Leaders Bank attorney fees and costs on its offer of

settlement.

      In the midst of litigation over the amount of the commission earned by

Russell Post as a result of the transfer of Leaders Bank’s interest in certain

property, Leaders Bank made an offer to Russell Post to settle the litigation for

$50,000, pursuant to section 768.79(6)(a) of the Florida Statutes. The offer stated

in pertinent part:

             Comes Now, Defendant, LEADERS BANK (“Leaders”), and
      … hereby tenders to Plaintiff, RUSSELL POST PROPERTIES, INC.
      … (“Post”), this final and binding Offer of Settlement in this action
      and states:
      ….
      2. The claims which this Offer of Settlement are attempting to resolve
      are any and all claims made by or which may have been made by
      Post against Leaders, including any and all claims for cost, interest
      and attorney fees.
      3. The particular and relevant conditions of the Offer of Settlement
      are that, if accepted by Post in the time allotted by law, upon receipt
      of $50,000 from Leaders, Post shall dismiss with prejudice any and
      all claims it may have against Leaders, and shall execute a general
      release in favor of Leaders. The terms and details of this Offer of
      Settlement shall, if accepted by Post, remain strictly confidential and



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      shall not be disclosed to any third party except with the express,
      written agreement of all parties hereto.
      ….
      7. This Offer of Settlement shall remain open for thirty (30) days at
      which time it is automatically withdrawn without further notice.

(emphasis added). Russell Post made no response to the offer and Leaders Bank

sought enforcement.     Russell Post argued below and maintains here that the

settlement offer was void for vagueness because: (1) Leaders Bank failed to either

attach a copy of its proposed general release or provide a summary describing with

particularity all of the relevant terms of the proposed release; (2) the mere

reference to confidentiality was insufficiently definite; and (3) the offer was

withdrawn before the end of the period in which it could be accepted. The trial

court summarily denied Leaders Bank’s motion for attorney fees.

      Florida Rule of Civil Procedure 1.442(c)(2)(C) and (D) respectively require

that “any relevant conditions” and “all nonmonetary terms” of a proposal for

settlement be stated “with particularity.” A requirement in an offer of settlement

that the offeree provide the offeror a general release as a condition of settlement is

considered a “non-monetary term” of the offer. State Farm Mut. Auto. Ins. Co. v.

Nichols, 932 So. 2d 1067, 1078 (Fla. 2006). As the law relating to offers of

settlement has developed, best practice has come to dictate that a party who

conditions an offer of settlement on receipt of a release, even the well understood

and usually non-controversial general release, should attach the proposed release to



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the offer lest the offer be deemed “ambiguous” under the “nonmonetary terms”

particularity requirement of Rule 1.442(c)(2)(D). However, failure to attach the

release is not necessarily fatal.

      In Nichols, the Florida Supreme Court stated the Rule 1.442(c)(2)(D)

particularity requirement as it relates to releases can also be satisfied by including a

summary of the release, “as long as [the offer] eliminates any reasonable ambiguity

about its scope.” Id. at 1079; see also Lyons v. Chamoun, 96 So. 3d 456, 457 (Fla.

4th DCA 2012) (“Our supreme court has held that, if the release is not attached,

then the [proposal for settlement] must satisfy the requirements of Rule 1.442 and

eliminate any reasonable ambiguity about its scope.”). The offeror is not by this

rule required to exhaustively account for every term of the proposed release in

detail. “[The Rule] merely requires that the settlement proposal be sufficiently

clear and definite to allow the offeree to make an informed decision without

needing clarification.” Nichols, 932 So. 2d at 1079.

      The offer of settlement in this case meets the requirements of the Rule. The

offer opens by stating that it is a “final and binding Offer of Settlement in this

action” relating to “any and all claims made by or which may have been made

by Post against Leaders, including any and all claims for cost, interest and

attorney fees.” (emphasis added). The offer continues in the next paragraph to

state, “[U]pon receipt of $50,000 from Leaders, Post shall dismiss with prejudice



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any and all claims it may have against Leaders, and shall execute a general

release in favor of Leaders.” (emphasis added). Unlike the offer in Nichols,

which more broadly required Nichols to “execute a General Release in favor of

State Farm, which will be expressly limited to all claims, causes of action, etc., that

have accrued [anywhere] through the date of Nichols’s acceptance of th[e]

Proposal,” id. at 1071, the offer in this case not only names the parties who will

execute the release but also precisely identifies the claims which will be released as

those “made” or “which may have been made” “in this action.” See Land & Sea

Petroleum, Inc., v. Business Specialists, Inc., 53 So. 3d 348, 353 (“Here, the

proposals for settlement clarified that they were ‘made for the purpose of resolving

all claims as well as any and all claims that could have been or should have been

brought by [the brokers] against [the seller].’ That language complied with rule

1.442(c)(2)(B) by ‘identify[ing] the claim or claims the proposal is attempting to

resolve.’”).

       We are unable to divine what “clarification” Russell Post might have

needed to decide whether to accept the offer of settlement made to it in this case.

However, any possible confusion as to the parties and claims to be released is fully

and finally dispatched by the offer’s requirement that “Post shall dismiss with

prejudice any and all claims it may have against Leaders.” See Ellis v. Weisbrot,

550 So. 2d 15, 16 (Fla. 3d DCA 1989) (“A dismissal with prejudice is tantamount



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to a release.”); Eason v. Lau, 369 So. 2d 600, 601 (Fla. 1st DCA 1978) (“[A]

dismissal with prejudice under [Rule 1.420(a)] is equivalent to or tantamount to a

release.”).

      The case before us is legally indistinguishable from Jones v. Publix

Supermarkets, Inc.. 68 So. 3d 422 (Fla. 4th DCA 2011). In that case, the plaintiff,

Jones, served a proposal for settlement “encompass[ing] all damages and expenses

associated with this claim,” in which he would “execute a full release of liability in

favor of Publix Supermarkets, Inc., a Florida Corporation and it’s [sic] affiliated

insurance company.” Jones, 68 So. 3d at 422. No further summary of the release

terms was included, nor was a copy of the proposed release attached to the

proposal for settlement. Id.      Although a jury awarded Jones damages well in

excess of the statutory amount necessary to trigger recovery under the offer of

judgment statute and “everybody underst[ood] who is being released and who

isn’t,” the trial court denied Jones recovery on the offer of judgment. Id. at 423.

The Fourth District reversed the decision of the trial court, stating:

      In this case there are no other claims and no other potentially liable
      related parties. Therefore, under these facts and circumstances, the
      release provisions of Jones’ proposal were sufficiently clear, “leaving
      no ambiguities so that the recipient can fully evaluate its terms and
      conditions.”

Id.




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      The only distinguishing fact in our case is that the proposal of settlement

was made by a defendant, not a plaintiff. However, like Jones, the present case

involves litigation between two parties over a single claim – the amount of

commission owed to Russell Post by Leaders Bank. The language of the proposed

settlement expressly discusses the only two parties involved, the fact that the suit

between those parties will be concluded, and that the parties will keep confidential

the terms of the settlement from third parties. Under the facts of this case, Russell

Post cannot reasonably claim confusion over the release and confidentiality terms

of the proposed settlement, since no other possibilities existed to create reasonable

ambiguity. See Eastern Atlantic Realty and Inv., Inc., v. GSOMR, LLC, 14 So. 3d

1215, 1221 (3d DCA 2009) (finding no ambiguity where “[n]o other actions were

pending between the parties [and] the proposal clearly identified the parties to be

released and the scope of that release”).

      Finally, the time limitation proposed for the acceptance of the settlement

offer tracks the thirty-day requirement of both section 768.79(4) and Rule

1.442(f)(1). Russell Post cannot reasonably claim confusion over the offer’s time

limitation, especially where notice is provided both by the offer and by law. We

therefore, reverse the trial court’s denial of attorney fees under section 768.79(6)(a)

and remand for a determination of the amount to be awarded.

      Affirmed in part, and reversed in part with directions.



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