IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
PUBLIX SUPER MARKETS, INC.,
Appellant,
v. Case No. 5D21-2612 LT Case No. 2019-CA-036338-X
SIERRA ALFORD,
Appellee.
________________________________/
Opinion filed December 30, 2022
Appeal from the Circuit Court for Brevard County, Dale Curtis Jacobus, Judge.
Michael R. D'Lugo, of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellant.
Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellee.
HARRIS, J.
Publix Super Markets, Inc. (“Publix”) timely appeals the trial court’s
denial of its motion for attorneys’ fees, arguing that the trial court erred in finding that its proposal for settlement and release were ambiguous and thus
not enforceable. We agree with Publix that its proposal for settlement was
clear and unambiguous. We therefore reverse the trial court’s order denying
the motion for attorneys’ fees.
The underlying suit involved a cause of action for common law
negligence. Sierra Alford alleged that on December 24, 2017, she sustained
personal injury damages as a result of a slip-and-fall at a Publix located in
Brevard County, Florida. Publix answered the complaint and raised
affirmative defenses. Publix later served its Proposal for Settlement offering
$25,001.00 to settle all claims against it. The proposal also incorporated a
general release form. Alford did not respond. Alford’s claim went to trial and
the jury returned a verdict in favor of Publix on July 20, 2021. The trial court
entered a Final Judgment in favor of Publix on August 4, 2021.
Publix subsequently moved for an award of attorneys’ fees and costs,
arguing that because it complied with the requirements of Florida Rule of Civil
Procedure 1.442 (2017) and was the prevailing party, it was entitled to an
award of attorneys’ fees and costs pursuant to section 768.79, Florida
Statutes (2017).
In response to Publix’s motion, Alford asserted that the language of the
proposal for settlement was internally inconsistent, thereby creating an
2 ambiguity. She argued that the proposal contained conflicting provisions that
would render the offeree unable to discern what was being released, citing
specifically to paragraph 3 and 6 of the proposal:
3. Defendant will pay the total sum of . . . $25,001.00 . . . in full settlement of all of the Plaintiff’s claims of whatever nature which have been or could have been asserted against this Defendant as a result of the matters described in the Plaintiff’s Complaint and any amendments to the Complaint.
....
6. The total amount stated in paragraph three (3) of this Proposal for Settlement is intended to resolve all damages that would otherwise be awarded in a final judgment in this action, including any taxable costs and interests. No additional taxable costs or interest will be paid in addition to this Proposal for Settlement.
Alford also argued that the general release failed to identify who she
would be releasing by its execution, making it likewise ambiguous and
unenforceable. She cited to the following language in the general release:
“Releasor has had the benefit of personal counsel and fully understands the
terms of this General Release and is making full and final settlement of all
claims of every nature and character which Releasor has against *.” She
asserted that the emphasized language did not clearly indicate who was
being released and the use of an asterisk in lieu of any name of any party
seeking to be released caused the proposal to be invalid.
3 Publix responded, arguing that its proposal and general release
satisfied the particularity requirement and that Alford was nitpicking at the
language contained in paragraphs 3 and 6. Publix further argued that the
asterisk in the release was clearly a typographical error where it intended to
replace the asterisk with “Publix Supermarkets, Inc.” Publix asserted that,
when looking at the general release as a whole, it was abundantly clear that
Publix was the only party intended to be released. After a hearing, the court,
without making any findings, denied Publix’s motion for attorneys’ fees.
We review the trial court’s order declining to enforce the proposal for
settlement de novo. See Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015)
(“The eligibility to receive attorney’s fees and costs pursuant to section
768.79 and rule 1.442 is reviewed de novo.”). The offeror must “state with
particularity any relevant conditions” of the proposal and to “state with
particularity all nonmonetary terms of the proposal.” Fla. R. Civ. P.
1.442(c)(2)(C)–(D). “The term ‘particularity’ as used in rule 1.442(c) means
that the offeror must provide ‘specific details’ of any condition or
nonmonetary term.” 1 Nation Tech. Corp. v. A1 Teletronics, Inc., 924 So. 2d
3, 6 (Fla. 2d DCA 2005) (quoting Swartsel v. Publix Super Mkts., Inc., 882
So. 2d 449, 453 (Fla. 4th DCA 2004)). “If ambiguity within the proposal could
reasonably affect the offeree’s decision, the proposal will not satisfy the
4 particularity requirement.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.
2d 1067, 1079 (Fla. 2006). The Florida Supreme Court has instructed that
courts are only to invalidate a proposal for settlement for “reasonable
ambiguities” and has discouraged courts from nitpicking a proposal for
inconsequential ambiguities. Anderson v. Hilton Hotels Corp., 202 So. 3d
846, 852–53 (Fla. 2016). When a general release is incorporated into a
proposal for settlement, it must adhere to the same rules of particularity as
the proposal itself. Nichols v. State Farm Mut., 851 So. 2d 742, 746 (Fla. 5th
DCA 2003).
Publix argues that because it complied with the requirements of rule
1.442 and section 768.79, the trial court erred in denying its motion for
attorneys’ fees. Publix asserts that there is no internal conflict in paragraphs
3 and 6 of the proposal for settlement and therefore, no ambiguity. Publix
further asserts that its placement of the asterisk in the general release did
not prevent Alford from making a reasoned decision as to whether to accept
the proposal. Such a typographical error, Publix asserts, is insufficient to
create an ambiguity in this case. We agree. 1
1 We decide this case under the previous version of rule 1.442, prior to its recent amendment in 2022.
5 Paragraph 3 is clear—Publix will pay $25,001.00 to settle all claims
that have been or could have been asserted from the facts described in
Alford’s complaint. Alford’s complaint alleged one count of negligence—i.e.,
that when she turned to step away from the lottery line of Publix’s premises,
she slipped and fell on water that was on the floor, thereby suffering bodily
injuries resulting in pain and suffering, disability, disfigurement, permanent
and significant scarring, mental anguish, loss of the capacity for the
enjoyment of life, expense of hospitalization, medical and nursing care and
treatment, loss of earning, loss of the ability to earn money, and aggravation
of previously existing condition. A plain reading of paragraph 3 reveals that
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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED
PUBLIX SUPER MARKETS, INC.,
Appellant,
v. Case No. 5D21-2612 LT Case No. 2019-CA-036338-X
SIERRA ALFORD,
Appellee.
________________________________/
Opinion filed December 30, 2022
Appeal from the Circuit Court for Brevard County, Dale Curtis Jacobus, Judge.
Michael R. D'Lugo, of Wicker Smith O'Hara McCoy & Ford, P.A., Orlando, for Appellant.
Brian J. Lee, of Morgan & Morgan, Jacksonville, for Appellee.
HARRIS, J.
Publix Super Markets, Inc. (“Publix”) timely appeals the trial court’s
denial of its motion for attorneys’ fees, arguing that the trial court erred in finding that its proposal for settlement and release were ambiguous and thus
not enforceable. We agree with Publix that its proposal for settlement was
clear and unambiguous. We therefore reverse the trial court’s order denying
the motion for attorneys’ fees.
The underlying suit involved a cause of action for common law
negligence. Sierra Alford alleged that on December 24, 2017, she sustained
personal injury damages as a result of a slip-and-fall at a Publix located in
Brevard County, Florida. Publix answered the complaint and raised
affirmative defenses. Publix later served its Proposal for Settlement offering
$25,001.00 to settle all claims against it. The proposal also incorporated a
general release form. Alford did not respond. Alford’s claim went to trial and
the jury returned a verdict in favor of Publix on July 20, 2021. The trial court
entered a Final Judgment in favor of Publix on August 4, 2021.
Publix subsequently moved for an award of attorneys’ fees and costs,
arguing that because it complied with the requirements of Florida Rule of Civil
Procedure 1.442 (2017) and was the prevailing party, it was entitled to an
award of attorneys’ fees and costs pursuant to section 768.79, Florida
Statutes (2017).
In response to Publix’s motion, Alford asserted that the language of the
proposal for settlement was internally inconsistent, thereby creating an
2 ambiguity. She argued that the proposal contained conflicting provisions that
would render the offeree unable to discern what was being released, citing
specifically to paragraph 3 and 6 of the proposal:
3. Defendant will pay the total sum of . . . $25,001.00 . . . in full settlement of all of the Plaintiff’s claims of whatever nature which have been or could have been asserted against this Defendant as a result of the matters described in the Plaintiff’s Complaint and any amendments to the Complaint.
....
6. The total amount stated in paragraph three (3) of this Proposal for Settlement is intended to resolve all damages that would otherwise be awarded in a final judgment in this action, including any taxable costs and interests. No additional taxable costs or interest will be paid in addition to this Proposal for Settlement.
Alford also argued that the general release failed to identify who she
would be releasing by its execution, making it likewise ambiguous and
unenforceable. She cited to the following language in the general release:
“Releasor has had the benefit of personal counsel and fully understands the
terms of this General Release and is making full and final settlement of all
claims of every nature and character which Releasor has against *.” She
asserted that the emphasized language did not clearly indicate who was
being released and the use of an asterisk in lieu of any name of any party
seeking to be released caused the proposal to be invalid.
3 Publix responded, arguing that its proposal and general release
satisfied the particularity requirement and that Alford was nitpicking at the
language contained in paragraphs 3 and 6. Publix further argued that the
asterisk in the release was clearly a typographical error where it intended to
replace the asterisk with “Publix Supermarkets, Inc.” Publix asserted that,
when looking at the general release as a whole, it was abundantly clear that
Publix was the only party intended to be released. After a hearing, the court,
without making any findings, denied Publix’s motion for attorneys’ fees.
We review the trial court’s order declining to enforce the proposal for
settlement de novo. See Pratt v. Weiss, 161 So. 3d 1268, 1271 (Fla. 2015)
(“The eligibility to receive attorney’s fees and costs pursuant to section
768.79 and rule 1.442 is reviewed de novo.”). The offeror must “state with
particularity any relevant conditions” of the proposal and to “state with
particularity all nonmonetary terms of the proposal.” Fla. R. Civ. P.
1.442(c)(2)(C)–(D). “The term ‘particularity’ as used in rule 1.442(c) means
that the offeror must provide ‘specific details’ of any condition or
nonmonetary term.” 1 Nation Tech. Corp. v. A1 Teletronics, Inc., 924 So. 2d
3, 6 (Fla. 2d DCA 2005) (quoting Swartsel v. Publix Super Mkts., Inc., 882
So. 2d 449, 453 (Fla. 4th DCA 2004)). “If ambiguity within the proposal could
reasonably affect the offeree’s decision, the proposal will not satisfy the
4 particularity requirement.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.
2d 1067, 1079 (Fla. 2006). The Florida Supreme Court has instructed that
courts are only to invalidate a proposal for settlement for “reasonable
ambiguities” and has discouraged courts from nitpicking a proposal for
inconsequential ambiguities. Anderson v. Hilton Hotels Corp., 202 So. 3d
846, 852–53 (Fla. 2016). When a general release is incorporated into a
proposal for settlement, it must adhere to the same rules of particularity as
the proposal itself. Nichols v. State Farm Mut., 851 So. 2d 742, 746 (Fla. 5th
DCA 2003).
Publix argues that because it complied with the requirements of rule
1.442 and section 768.79, the trial court erred in denying its motion for
attorneys’ fees. Publix asserts that there is no internal conflict in paragraphs
3 and 6 of the proposal for settlement and therefore, no ambiguity. Publix
further asserts that its placement of the asterisk in the general release did
not prevent Alford from making a reasoned decision as to whether to accept
the proposal. Such a typographical error, Publix asserts, is insufficient to
create an ambiguity in this case. We agree. 1
1 We decide this case under the previous version of rule 1.442, prior to its recent amendment in 2022.
5 Paragraph 3 is clear—Publix will pay $25,001.00 to settle all claims
that have been or could have been asserted from the facts described in
Alford’s complaint. Alford’s complaint alleged one count of negligence—i.e.,
that when she turned to step away from the lottery line of Publix’s premises,
she slipped and fell on water that was on the floor, thereby suffering bodily
injuries resulting in pain and suffering, disability, disfigurement, permanent
and significant scarring, mental anguish, loss of the capacity for the
enjoyment of life, expense of hospitalization, medical and nursing care and
treatment, loss of earning, loss of the ability to earn money, and aggravation
of previously existing condition. A plain reading of paragraph 3 reveals that
by its terms, Publix seeks to settle all claims that have or could have risen
out of the specific facts alleged. Paragraph 3 references the only claims
being made—those in the complaint. Paragraph 6 is also clear—it deals with
damages that could have been awarded in a final judgment as a result of the
claims alleged.
We agree with Publix that there is nothing inconsistent about
paragraphs 3 and 6. When reviewing the complaint and paragraphs 3 and 6
of the proposal, there is no ambiguity. Paragraphs 3 and 6 are sufficiently
clear and definite to allow Alford to make an informed decision without
needing clarification. Nichols, 932 So. 2d at 1079 (holding settlement
6 proposal must be sufficiently clear and definite to allow offeree to make an
informed decision without needing clarification).
We further find no merit to Alford’s additional argument that the general
release could be read to extinguish claims extrinsic to the litigation. Alford
relies on the asterisk in asserting that the release could be read to release
claims against Publix or anyone else. We disagree.
Alford alleged only one count in her complaint against one defendant.
Viewing the general release as a whole, there is no doubt that Publix was
offering to settle the case brought by Alford for $25,001.00 and that the
release would prevent Publix from ever being sued again by Alford for
injuries relating to the slip and fall on December 24, 2017. Sanchez v.
Cinque, 238 So. 3d 817, 826 (Fla. 4th DCA 2018) (“A proposal for settlement
must be read as a whole and is not ambiguous unless a genuine
inconsistency, uncertainty, or ambiguity in meaning remains after resort to
the ordinary rules of construction.”).
Although the release contained an asterisk in one sentence, this was
clearly a “cut and paste” typographical error that did not create an ambiguity
that could have reasonably affected Alford’s decision whether to accept the
proposal. The remainder of the release only mentioned Publix as the
defendant/releasee and no other party. Id. (“Although the release contained
7 a reference to non-parties, this was clearly a ‘cut and paste’ typographical
error that did not create an ambiguity that could have reasonably affected
Sanchez’s decision whether to accept the proposal.”). Here, an asterisk is
no different than unknown non-parties. The proposal and release stated with
particularity the relevant conditions and all non-monetary terms. Read as a
whole, the proposal and release did not have any ambiguities that prevented
Alford from fully evaluating the terms and conditions.
We therefore conclude that the trial court erred in denying Publix’s
motion for attorneys’ fees. We reverse the order denying Publix’s motion for
attorneys’ fees and remand this matter to the trial court with instructions to
grant the motion and to hold an evidentiary hearing to determine the amount
of attorneys’ fees to which Publix is entitled pursuant to its valid proposal for
settlement.
REVERSED and REMANDED with instructions.
LAMBERT, C.J. and EVANDER, J., concur.