Enforceable Settlement Does Not Need to be Signed and can be Agreed by Attorneys
“To be enforceable, an agreement must be sufficiently specific, and reflect assent by the parties to all essential terms. . . . Where essential terms of an agreement remain open, subject to future negotiation, there can be no enforceable contract.” Portner v. Koppel, 49 Fla.L.Weekly D599a (Fla. 4th DCA 2024) (citation and quotation omitted). This applies to settlement agreements that are governed under contract law principles. Portner, supra. “Emails between attorneys can constitute an enforceable settlement agreement.” Id.
Sometimes, a party may have “buyer’s remorse” and refuse to sign a settlement agreement. This fact alone does NOT mean there is not a settlement. A settlement agreement does not have to be in writing, nor does it have to be signed, to be enforceable. Portner, supra (citation omitted). And, just because the agreement if effectuated through an attorney does not mean there was not a settlement. “The party seeking to enforce a settlement bears the burden of showing that the attorney proposing the settlement had the clear and unequivocal authority from his client to do so.” Portner, supra (internal citation and quotation omitted).
In Portner, a settlemet agreement was thought to have been reached between counsel. The settlement agreement was drafted and all was suspected to be good. However, the plaintiff refused to sign the settlement agreement because he thought the settlement amount did not convey his authority which is that he wanted the amount to be “net” meaning after costs and contingency fee was applied versus the gross amount of the offer. An evidentiary hearing was held and the plaintiff’s former counsel testified that he believed there was a settlement and the terms were conveyed to the plaintiff. The trial court, as affirmed by the appellate court, held that there was an enforceable settlement agreement as the parties agreed to all essential terms.
Notably, on appeal, the plaintiff claimed his former counsel should not have been able to testify because of the attorney-client privilege. Unfortunately, the plaintiff had a couple of problems.
First, the plaintiff waived this argument because the plaintiff MUST object and obtain a ruling from the trial court to preserve the issue for appeal. Because the plaintiff did not do so, the issue was waived for purposes of the appeal.
Second, regardless of the waiver, the plaintiff testified at the evidentiary hearing as to confidential communications with his former counsel. Thus, the plaintiff waived the attorney-client privilege. “A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person…voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication….” Portner, supra, citing Fla. Stat. s. 90.507. And further to this point, “[plaintiff] would have waived his attorney-client privilege by claiming that his former counsel lacked authority to settle a case on [plaintiff’s] behalf. [W]aiver occurs when a party raises a claim that will necessarily require proof by way of a privileged communication.” Id. (internal quotations and citations omitted).
Remember, a settlement does not need to be signed to be enforceable and can be effectuated through counsel. While you may think your counsel is immune from any testimony if the agreement is enforced, well, as shown above, any privilege can be waived, particularly if you let the door open!
Please contact David Adelstein at [email protected] or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.
