Getting the format of a Proposal for Settlement/Offer of Judgment correct in Florida state courts is hard enough. A Proposal can, but likely shouldn't, include an attached release. It can resolve all claims, or not.

Drafting a Proposal to more than one recipient ("joint" proposal for settlement) is even more difficult. Indeed, there is even a conflict between the First and Second DCA's on that issue.

Enter the Fourth District (May, Taylor and Hazouri) with Jacqueline Brower-Eger v. Lisa Noon, which finds -- as most courts before it -- that the failure to allocate a specific settlement amount payable by each joint recipient is fatal.

In this case, the defendant/homeowner was sued for not paying the plaintiff (a partnership) for home remodel work. The defendant's basis for non-payment is that the partnership (husband and wife) employed their daughter, who allegedly stole personal property. Once the collection suit was filed, the defendant counterclaimed against the partnership and sued the husband and wife.

At some point, the defendant served a joint proposal on all three opposing parties for $10,000. This was not accepted and trial followed with the defendant winning almost $14,000. The defendant sought fees under the Proposal for Settlement Rule and Statute as well as for the failure to admit request for admissions.

The Court held the Proposal was deficient because "it did not allocate the demand among the three plaintiffs." In an argument which the Court held to be "novel," the defendant argued that the apportionment requirement undermines joint and several liability in Florida Statutes 620.8306(1). Court was not impressed and declined "any deviation from the strict requirements of the statute and rule."

In a statutory-driven area of construction law, the Fourth District (Klein, Farmer, and Taylor) once again bristle at a party's attempt to seek arbitration. Ironically, in their haste to torpedo the enforcement of arbitration in 2 pages or less, it appears they missed citing to pretty decent precedent from the Third DCA.

In Connie and Charles J. Brookshire v. GP Construction of Palm Beach, Inc., the court held that strict construction of a lien law took precedent over Florida court's (draconian) precedent on avoiding waiver of the right to arbitrate.

Contractor put a lien on a house. Owners filed suit seeking to discharge the lien, which was served on the contractor along with a clerk-issued rule to show cause order per Florida Statute 713.21(4). That statute calls upon the recipient to show cause why the lien should not be enforced or why the lienor did not commence such action.

Here, the contractor filed, within the 20 day period, a motion to compel arbitration per the contract. Owner argued, at both trial and appellate levels, that the failure to show cause for failing to comply leaves the court with no discretion.

The 4th DCA reasoned that the "lien and the dispute are not one and the same" and that the disposition of the lien would not resolve the contractor's claim for payment. Strictly speaking, that's true. But liens are the teeth behind contractor claims. Liens exist as a part of the claim. One goes with the other. We won't argue the in's and out's of contract law because... well, because the Fourth District didn't bother to either.

Incidentally, the court did not provide the arbitration language, so we do not know what was within the scope of arbitration.

The contractor "could have complied with the 20-day statutory period by filing a counterclaim within the owner's action... any concern about whether the contractor was waiving arbitration could have been satisfied by filing a motion to arbitrate those issues which were subject to arbitration." Notably, none of the three cases cited were within the last several years thus we don't know if they are still viable after the Florida Supreme Court's decision in Raymond James Financial v. Saldukas, a 2005 case which defines waiver of arbitration under Florida state law.

Take a moment to read this 7-paragraph Brookshire opinion and then look at the three cited cases in the second-to-last paragraph (from 1978, 1986 and 2001). Acceptable precedent for part of their point but how do we know this is solid arbitration-waiver law post-Saldukas? What about a citation to Waterhouse Construction Group v. 5891 SW 64th Street LLC?

We've mentioned before that verbal settlement agreements reached in the hallway are unenforceable. What about unsigned mediation settlement agreements?

In a concise opinion, the 3rd DCA (Shepherd, Rothenberg, and Lagoa) advised the parties in Mastec, Inc. v. Rolando Cue that an unsigned agreement is not enforceable. Here's everything you need to know:

1. PARTY/LAWYER SIGNATURE RULE: Florida Rule of Civil Procedure 1.730 ("Completion of Mediation") requires BOTH parties and their counsel to sign a mediation settlement agreement.

2. PARTY ONLY SIGNATURE, ENFORCED: The Fifth DCA has held that, if a party signs a mediation agreement, it is only a "technicality" that the party's lawyer did not sign -- and the settlement was enforced. See Jordan v. Adventist Health Systems/Sunbelt, Inc., 656 So. 2d 200 (Fla. 5th DCA 1995).

3. LAWYER-ONLY SIGNATURE, NOT ENFORCED: The Third DCA previously held that an agreement not signed by the party, but signed by the party's counsel in the party's presence, was NOT enforceable under Rule 1.730. See Gordon v. Royal Caribbean Cruises, Ltd., 641 So. 2d 515 (Fla. 3rd DCA 1994).

4. NO SIGNATURES AT ALL, NOT ENFORCED: In this present case, nobody signed. Court found that it was not enforceable.

Quick comments:

Note there is not much law and we might find other DCA's taking different approaches to interpreting Rule 1.730.

Lawyers have tried to argue theories of "agency" in order to enforce lawyer-only signed settlement agreement (outside of mediation). In the limited cases we've seen, that hasn't been well-received by the courts. Likely, agency arguments will face a stiffer challenge in cases such Mastec v. Cue since there is a specific Rule governing settlements at mediation.

Note that Rule 1.730 only applies to mediations and you might develop arguments as to whether your particular settlement occurred at "mediation."

We previously commented on the AT&T Mobility Wireless Service Agreement which comes with most AT&T Wireless (formerly Cingular) plans, including the iPhone. Since its inception in mid-2007, both the original and 3G iPhone have always required AT & T service as well as arbitration and class action waivers, although the contract language has changed over time. The terms are quite unique and, as AT&T own lawyers wrote in their brief, the phone company proclaims their dispute resolution program as "more pro consumer than any other arbitration provision in the country."

Florida courts seem to agree. In Lourdes Cruz, Paul Flaherty, Jr., and Curtis Smith v. Cingular Wireless, LLC n/k/a AT&T Mobility, LLC, Judge John E. Steele of the Middle District of Florida gave both the arbitration and waiver of class action rights the big thumbs up. Indeed, there was some fairly strong, similar precedent from the Eleventh Circuit and even the Fourth DCA on the state court side.

AT&T has a Wireless Service Agreement which makes reference to a separate Terms and Conditions booklet, which describes the dispute resolution (arbitration), attorney's fees, and class action waiver. Of note, we previously used the bluish hue of our iPhone to cast some light on the Terms of Service in this prior post. Some unusual provisions in there, including a term that the consumer gets either AT&T's last offer or $5,000, whichever is higher and double attorney fees if the consumer wins a small amount.

Using the FAA, the Middle District plowed down the fertile field of unconscionability and public policy cases, picking out the precendential weeds of aborted arbitration clauses and seeds of enforced class action waivers.

The analysis rested on whether Florida's Deceptive and Unfair Trade Practice Act (FDUTPA) states or implies class action rights since it was enacted to protect the "consuming public." The 4th District, in state court, previously said that the statute did not grant such sweeping rights in Fonte v. AT&T Wireless Services, which, ironically enough, enforced a prior (apparently not-as-consumer friendly) version of the agreement at issue in this case.

There were some prior federal cases in Florida which were also examined. In S.D.S. Autos, Inc. v. Chrzanowski, the First DCA struck down a class action ban because it tripped up a unique provision in FDUTPA which dealt only with car dealers (F.S. 501.976 instead of the "normal" FDUPTA claim provision, Florida State 501.204).

The Middle District noted the case of Jenkins v. First American Cash Advance of Georgia, where the 11th Circuit in 2005 said that "class action waivers do not necessarily choke off the supply of lawyers willing to pursue claims on behalf of debtors." We do not know it was an oversight, but the Middle District could have turned to its brethren in the Southern District's Rivera v. AT&T opinion (admittedly not precedent, but gave a similar overview of the Jenkins case).

The plaintiffs also claimed that arbitration would some how shroud AT&T's FDUTPA misdeeds if arbitration was enforced however the court noted that there was no confidentiality requirement.

Finally, the Middle District noted that the Eleventh Circuit shot down arbitration and class action waiver in Dale v. Comcast, but distinguished that case since there was a bar to attorney's fees which defeated a purpose of FDUTPA.

Not mentioned in the opinion was a prior ruling from the Middle District in Sanders v. Comcast, which we previously haled as one of the big decisions of 2008 (again, not precedent, but it would be a reliable and consistent citation from within the same district). Our case today may stand in the shadow of Sanders in terms of scope, but who knows which will travel up the appellate ladder.

Third party beneficiaries to a contract are not entitled to recover attorney's fees under that same contract, unless the fee provision is clear, specific, and unambiguous that it includes more than just the signing parties.

In Civix Sunrise, GC, LLC v. Sunrise Road Maintenance Association, Sunrise Golf Club Condominium Association, Homeowners Association of the Sunrise Golf Club Estates, Westwoods at Sunrise Country Club et al., the Second DCA (Kelly, Fulmer, Casanueva) reviewed a 99-year real estate lease where the land was to be used as a golf course. A merger occurred and the new owner sought to develop the land for residential use.

The golf course was surrounded by condominiums who sued, claiming they were third party beneficiaries to the lease which required the land to be used as a golf course -- note, indeed, the names of several of these condo/HOA associations actually reference the golf course in their names. Both the trial and appellate court accepted that the neighborhoods were intended third party beneficiaries and, moreover, that the conversion of the land was not proper.

The prevailing third party beneficiaries then sought to recover their attorney's fees on the theory that the lease said that "all parties" agreed that a prevailing party was entitled to fees. The court held that "all parties" meant signatories, not intended beneficiaries, and that the attorney fee language would have to be far clearer and specific to include anyone other than the signing parties.

This concept of "third party beneficiary" status has gained some traction in enforcing arbitration clauses, as we discussed very early in the year here and here.

Over the weekend, general counsel for a large Florida corporation asked me if her company should even bother to have parents sign waivers for their children who tour the company grounds or even ride bikes on the property.

Lawyers around the nation might go wide-eye at the heretical suggestion of foregoing waivers for corporate events or activities, especially those involving children. However, as we've discussed several times since Global Travel Marketing, Inc. v. Shea, Florida courts have created a public policy conclusion that waivers for children, signed by parents, are NOT enforceable if the children are participating in non-academic, commercial activities.

Examples where Florida courts have invalidated waivers signed by parents: (1) waiver signed so 14-year old could ride at motorcross park NOT ENFORCED, (2) waiver signed so high school girl could participate in cheerleading ENFORCED because it was a school activity, (3) waiver signed so five year old could participate in watersports at a commercially-run summer camp NOT ENFORCED and (4) parent-signed waiver to take child on safari vacation NOT ENFORCED.

So what can a Florida company do regarding waivers for participants under 18 years old when the company undertakes any interaction with the public, such as permitting visitors on the property, charging for any physical or sporting activity, sponsoring an 5k race, or offering trips? Unless the company can claim a community or school connection, the precedent above suggests that a parent-signed waiver is not worth the paper it is written on. A waiver signed by the child, likewise, has little legal value. Arguably the company could ask the both child and parent to sign and simply run the risk that nothing will happen -- or just refuse to allow child participants.

A better idea is NOT to attack the liability side of the equation. Likely, a company hosting an event fears being sued for some form of negligence or other tort. Torts, including statutory claims, have elements which include both liability and damages. Since a liability waiver does not work, the answer then is to focus on preventing exposure to damages. If the parent cannot sign away liability, the parents CAN still absorb any damages. The answer is to have parents sign an agreement which allows the child to participate in the event AND where the parents agree to defend and indemnify the company for any potential claim brought by the child. Thus, the parents would be exposed to the potential damages, not the business. Moreover, the parents bear whatever burden or risk associated with a child undertaking activities such as vacations, motorcross, cheerleading, or water sports.

The caveat, of course, is that there is no case law supporting this legal strategy, likely because Florida's precedent is fairly new and businesses have not been quick to realize the change in the law and modify their waiver forms (some company executives already eye their own liability waiver form with some distrust as to whether it will stand up in court and figure that it is not worth investing the money to revise). Many lawyers are not even clued into the change in the law -- moreover, lawyers provided by insurance companies may not get the know their clients well enough to take that extra step to propose thoughtful revisions to a company's form contracts.

Indemnity provisions are used several times a day in settlements of tort claims and can be fashioned in a parent-signing-for-child scenario. Likely, we are going to see a slow, incremental change only after more companies are sued and their forms invalidated.

I recommend a cogent, clearly-worded form which clearly explains to the parent the implications and, if a client would agree, offering the parents a few days to consider or consult an attorney. Training employees to properly respond to questions (or route to the legal department) and to confirm signatures is also critical.