4D09-995-Land & Sea Petroleum, Inc. v. Business Specialists, Inc.

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State: Florida

Court: Florida Southern District Court

Docket No: 4D09-995.op

Case Date: 01/19/2011

Plaintiff: 4D09-995-Land & Sea Petroleum, Inc.

Defendant: Business Specialists, Inc.

Preview:DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
January Term 2011

LAND & SEA PETROLEUM, INC., Appellant, v. BUSINESS SPECIALISTS, INC. and CONTINENTAL BUSINESS, INC., Appellees. No. 4D09-995 [January 19, 2011] GERBER, J. Land & Sea Petroleum, Inc. (the "seller") appeals the denial of its motion to recover its attorney's fees and costs from brokers Business Specialists, Inc. ("Specialists") a n d Continental Business, Inc. ("Continental"). We find that the seller is entitled to recover its attorney's fees and costs from the brokers on various grounds. Thus, we reverse. The seller and Specialists entered into a written contract providing that Specialists would broker the sale of the seller's business and land in exchange for a commission. In the contract, the seller acknowledged that Specialists could co-broker the listing. Specialists then entered into a separate co-brokerage agreement with Continental. The brokers later produced a buyer who entered into a contract with the seller. The seller, however, did not close on the contract, claiming that essential terms were not agreed upon. The brokers then filed a complaint against the seller for breach of the brokerage commission contract. The brokers argued that they fully performed the brokerage commission contract by producing a ready, willing and able buyer. The brokers sought the unpaid commission plus attorney's fees and costs pursuant to the following provision in the brokerage commission contract: If a suit is filed to enforce Broker's rights hereunder and the Broker is the prevailing party, the Seller will pay the Broker its full commission, legal fees & costs incurred in any litigation and one (1) percent monthly interest pre and post judgment.

The seller responded that the brokerage commission contract was unenforceable because its contract with the buyer was unenforceable. Then, after serving discovery on the buyer, the seller served proposals for settlement on the brokers pursuant to section 768.79, Florida Statutes (2004), and Florida Rule of Civil Procedure 1.442 (2004). The seller's proposal to Specialists stated, in pertinent part: 1. The party making this [Proposal for Settlement] is Defendant, LAND & SEA PETROLEUM, INC. The party to whom this [Proposal for Settlement] is made is Plaintiff, BUSINESS SPECIALISTS, INC. 2. This Proposal for Settlement is made for the purpose of resolving all claims as well as any and all claims that could have b e e n or should have bee n brought b y Plaintiff, BUSINESS SPECIALISTS, INC., against Defendant, LAND & SEA PETROLEUM, INC. 3. This Proposal for Settlement is inclusive of all damages and attorneys' fees, whether recoverable or not in this action, as well as any pre-judgment or post-judgment interest or costs. 4. The total amount of this Proposal for Settlement is FIVE HUNDRED DOLLARS ($500.00), inclusive of a n y punitive, compensatory or other damages a n d attorney's fees, whether recoverable or not in this action, as well as any pre-judgment interest or costs. The proposal to Continental was identical except that the seller substituted Continental's name for Specialists'. Neither Specialists nor Continental accepted the respective proposals. The seller later moved for summary judgment against the brokers. The circuit court granted the motion. We affirmed. Bus. Specialists, Inc. v. Land & Sea Petroleum, Inc., 25 So. 3d 693 (Fla. 4th DCA 2010). While the brokers' appeal of the summary judgment was pending, the seller filed a motion to recover its attorney's fees and costs pursuant to: (1) section 768.79 and rule 1.442, both allowing for recovery of attorney's fees a n d costs pursuant to proposals for settlement; (2) section 57.105(7), Florida Statutes (2004), allowing for reciprocal recovery of attorney's fees pursuant to a contractual prevailing party provision; and

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(3) section 57.041(1), Florida Statutes (2004), allowing a prevailing party to recover its costs. A magistrate heard argument on the motion. Regarding the seller's reliance on the proposals for settlement, the brokers argued that the proposals were invalid for two reasons: (1) the proposals were ambiguous because they did not specify which side would pay the $500 and did not specify the claims which the proposals would settle; and (2) the seller made the proposals in bad faith because it requested discovery only from the buyer before making nominal offers of only $500. Regarding the seller's reliance on section 57.105(7), Specialists acknowledged that the statute allowed for the reciprocal recovery of attorney's fees pursuant to a contractual prevailing party provision. However, Continental argued that it was not bound by the prevailing party provision because it was not an intended third-party beneficiary of the contract. Regarding the seller's reliance on section 57.041(1), neither of the brokers opposed that claim. The magistrate issued a report recommending that the circuit court deny the seller's motion for attorney's fees and costs in its entirety. The only finding which the magistrate included in the report was that Continental was not obligated as a third-party beneficiary to pay the seller's attorney's fees and costs. The circuit court thereafter denied the seller's motion in its entirety. This appeal followed. The seller argues: (1) its proposals for settlement were unambiguous because there is no question that it was offering $500 to each of the brokers and there was no claim to resolve other than the brokers' breach of contract claim; (2) its proposals were in good faith as shown by the fact that it obtained a summary judgment; (3) it should recover its attorney's fees pursuant to section 57.105(7) against Specialists because Specialists did not oppose that claim and against Continental because Continental was an intended third-party beneficiary of the brokerage commission contract; and (4) it should recover its costs against the brokers pursuant to section 57.041(1) because the brokers did not oppose that claim. We agree with each of the seller's arguments except for the argument that it should recover its attorney's fees from Continental as an intended third-party beneficiary. We address each argument in turn.

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Ambiguity The standard of review in determining whether a proposal for settlement is ambiguous is de novo. Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So. 3d 890, 891 (Fla. 4th DCA 2010). We agree with the seller that the proposals were not ambiguous. Our supreme court has held that "given the nature of language, it may be impossible to eliminate all ambiguity" in a proposal for settlement. State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006). "The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make a n informed decision without needing clarification." Id. "Therefore, parties should not `nit-pick' the validity of a proposal for settlement based on allegations of ambiguity unless the asserted ambiguity could `reasonably affect the offeree's decision' on whether to accept the proposal for settlement." Carey-All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA 2008) (quoting Nichols, 932 So. 2d at 1079). Applying those principles here, we find that the absence of language stating which side would pay the $500 did not make the proposals for settlement ambiguous. The seller complied with rule 1.442(c)(2)(A) and section 768.79(2)(b) b y naming itself as "the party . . . making the proposal" and naming the brokers as "the parties to whom the proposal is being made." Fla. R. Civ. P. 1.442(c)(2)(A) (2004); s e e also

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