Tuesday, June 30, 2009

Proposals for Settlement and Real Estat Commission

In Eastern Atlantic Realty and Investment Inc. v. GSOMR, LLC (3D06-685 & 3D06-1839), the Third District "affirm[ed] the trial court’s final judgment against Eastern, and...reverse[d] the trial court’s denial of attorneys’ fees and costs." The case involved an appeal "from a final judgment determining it was not entitled to a real estate brokerage commission...Biscayne Joint Venture, Ltd. ("BJV") appeals from a final order denying an award of attorneys’ fees and costs."

Where contractual provisions are clear and unambiguous, these terms control and must be given their plain and ordinary meaning. See Idearc Media Corp. v. M.R. Friedman & G.A. Friedman, P.A., 985 So. 2d 1159, 1161 (Fla. 3d DCA 2008). Given that paragraph 19 of the GRO agreement states that the agreement is "the entire agreement between the parties with respect to the transaction contemplated herein, and it supersedes all prior understandings or agreements between the parties," Eastern cannot recover other than as contemplated by the GRO agreement. Indeed, no binding agreement was formed between GRO and BJV as the initial condition precedent – BRI’s waiver – never occurred...Moreover, GRO relinquished its rights under the GRO agreement pursuant to a global settlement agreement. Because the "purchase and sale of the property as contemplated under the [GRO] agreement" did not occur, Eastern is not entitled to a commission.

Cross Appeal

Section 768.79, Florida Statutes (2007), provides for an award of attorneys’ fees and reasonable costs in any civil action for damages where a defendant files an offer of judgment that is not accepted by the plaintiff within thirty days...While Rule 1.442 requires a proposal for settlement to state with particularity any relevant conditions and all non-monetary terms, 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." Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008), review denied, 5 So. 3d 669 (Fla. 2009) (quoting Nichols, 932 So. 2d at 1079). Moreover, a proposal for settlement does not require more than "a summary of the proposed release." Nichols, 932 So. 2d at 1079.

Where "two offerors make a proposal for settlement to one offeree, the offeree is entitled to know the amount and terms of the offer that are attributable to each offeror in order to evaluate the offer as it pertains to that party." Allstate Ins. Co. v. Materiale, 787 So. 2d 173, 175 (Fla. 2d DCA 2001). The plain language of Rule 1.442(c)(3) only requires apportionment if the proposal is made jointly by several parties. Because the proposal at issue here was made solely by BJV, no apportionment between BJV and GSOMR was required.

Accordingly, we affirm the trial court’s finding that Eastern was not the procuring cause of the sale and was not entitled to a broker’s commission. As to the cross-appeal, we reverse and remand for a determination of BJV’s reasonable attorneys’ fees and costs.


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