ROBERT SAKOWITZ v. WATERSIDE TOWNHOMES COMMUNITY ASSOCIATION, INC.

• Court: District Court of Appeal of Florida
• Decided: March 9, 2022
• Docket: 21-1453
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed March 9, 2022. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D21-1453 Lower Tribunal No. 17-11008 ________________

Robert Sakowitz, Appellant,

vs.

Waterside Townhomes Community Association, Inc., Appellee.

An appeal from the Circuit Court for Miami-Dade County, Carlos Lopez, Judge.

Lydecker, LLP, and Forrest L. Andrews, and Kielan Saborit, for appellant.

John Paul Arcia, P.A., and John Paul Arcia, and Michael Farrar, for appellee.

Before LOGUE, MILLER, and LOBREE, JJ.

MILLER, J. Appellant, Robert Sakowitz, challenges an order enforcing a

settlement agreement and dismissing a civil lawsuit filed by appellee,

Waterside Townhomes Community Association, Inc. On appeal, Sakowitz

contends the settlement agreement failed for want of mutuality and,

alternatively, the settlement offer expired because it was not accepted within

a reasonable period of time. Discerning no error, we affirm in all respects.

BACKGROUND

In the underlying dispute, the Association filed suit against Sakowitz,

the former president of its board of directors, and others, alleging violations

of chapter 895, Florida Statutes (2022), the Florida RICO (Racketeer

Influenced and Corrupt Organization) Act. See § 895.01, Fla. Stat. After two

versions of the complaint were dismissed, without prejudice, by the trial

court, the Association and Sakowitz entered into settlement negotiations.

In early February of 2020, the Association extended a settlement offer

to Sakowitz and all co-defendants, save one. Approximately one month

later, on March 4, 2020, Sakowitz and the co-defendants responded with a

counteroffer. Eighty-five days later, the Association accepted the

counteroffer by way of an email, while contemporaneously requesting

information as to whether the offer included all of the defendants.

2 Sakowitz refused to acknowledge the acceptance, and the Association

subsequently filed a motion to enforce the settlement agreement. Sakowitz

opposed the motion, contending there was a lack of mutuality and the offer

expired because acceptance was not effectuated within a reasonable period

of time.

After convening an evidentiary hearing, the trial court granted the

motion, stating, in relevant part:

I’ve considered the motion. I realize that it’s eighty-four days; however, we were in the middle of a pandemic. It was a world pandemic. Everybody was [at] a standstill. The last thing on people’s minds were settlements of any kind. There were no time limitations in the offer, so I’m going to deny the motion to dismiss and I’m going to, in essence, tell you that I believe the motion for settlement should be enforced, should be granted. That’s the way I see it.

The instant appeal ensued.

STANDARD OF REVIEW

To the extent this appeal implicates the interpretation of a settlement

agreement, the standard of review is de novo. Com. Cap. Res., LLC v.

Giovannetti, 955 So. 2d 1151, 1153 (Fla. 3d DCA 2007). Findings of fact

derived from the evidentiary hearing, however, “may not be disturbed on

appeal unless shown to be unsupported by competent and substantial

evidence or to constitute an abuse of discretion.” Zupnik Haverland, L.L.C.

v. Current Builders of Fla., Inc., 7 So. 3d 1132, 1134 (Fla. 4th DCA 2009).

3 ANALYSIS

We reject the contention there was a lack of mutuality without further

discussion and turn our analysis to whether the parties formed a binding

contract. Sakowitz cites section 45.061, Florida Statutes, for the proposition

that Florida law favors the acceptance of settlement offers within forty-five

days. Thus, the offer was not timely accepted. We conclude this reliance is

misplaced. The forty-five day limit applies uniquely to a formal “offer for

settlement,” and here, the offer was not formally “denominated as an offer

under [section 45.061].” § 45.061(1), Fla. Stat. Consequently, the statutory

time frame is inapplicable.

Our examination is instead informed by several well-established

contractual principles. It is axiomatic that an offer to form a contract only

remains open for a reasonable period of time, unless the offer itself states

otherwise. See Minneapolis & St. L. Ry. Co. v. Columbus Rolling-Mill Co.,

119 U.S. 149, 151 (1886); see also Restatement (Second) of Contracts § 41

(2021); 1 Arthur L. Corbin, Corbin on Contracts § 2.16 (2021). Hence, in the

absence of an acceptance of the offer within a reasonable period of time,

there is no contract. See Minneapolis & St. L. Ry. Co., 119 U.S. at 151.

A reasonable time is “ordinarily . . . a question of fact, the determination

of which will depend upon all of the circumstances surrounding the particular

4 offer and acceptance.” 1 Richard A. Lord, Williston on Contracts § 5:7 (4th

ed. 2021). It can, however, be measured as “the time that a reasonable

person in the exact position of the offeree would believe to be satisfactory to

the offeror,” Corbin, supra, § 2.16, giving due consideration to the “the nature

of the proposed contract, the purposes of the parties, the course of dealing

between them, and any relevant usages of trade.” Restatement, supra, § 41

cmt. b.

Here, although the Association waited eighty-five days to effectuate

acceptance, the counteroffer was formulated nearly one month after the

original offer was extended. This suggests the parties were deliberate and

unhurried in their course of dealing.

Further, as aptly observed by the trial court, the offer in this case was

extended on the proverbial eve of the COVID-19 global pandemic. Less than

two weeks later, many court operations were suspended and protective

measures were implemented. See Fla. Admin. Order No. AOSC20-13 (Fla.

Mar. 13, 2020) (on file with Clerk, Fla. Sup. Ct.) (suspending, among other

things, all civil jury trials through March 27, 2020, in light of COVID-19 global

pandemic); Fla. Admin. Order No. AOSC20-23, Amend. 1 (Fla. May 4, 2020)

(on file with Clerk, Fla. Sup. Ct.) (extending suspension through July 2,

2020). Indeed, the Association demonstrated at the evidentiary hearing that

5 after the offer was extended, its attorney fell ill and his law offices closed.

Other impediments to acceptance included the delay of necessary board

approval, presumably precipitated by restrictions affecting travel and

gatherings.

Under these unusual circumstances, we cannot conclude the trial court

abused its broad discretion in enforcing the settlement agreement.

Accordingly, we affirm the order under review.

Affirmed.