When I Got to Say Somethin’, I’ll Say It: Using Appellate Counsel Strategically
February 27, 2024
The Florida Bar Appellate Rules Committee has proposed to the Florida Supreme Court an amendment to the appellate rules that would allow immediate appeals of orders that determine if, “as a matter of law, a settlement agreement is unenforceable, was set aside, or never existed.”
Florida’s district courts of appeal have jurisdiction to review – generally speaking – only final judgments. This rule of appellate jurisdiction precludes immediate appellate review of orders that do not end a case. An order that “a settlement agreement is unenforceable, was set aside, or never existed” does not end a case, and so it cannot be immediately appealed and reviewed. This characteristic of Florida appellate jurisdiction unnecessarily precludes the early resolution of many lawsuits, and this proposed rule would go a long way to correcting this recurring problem.
The most common example of an order that could be immediately reviewed by this amendment – without waiting for the end of a case – is a disputed acceptance of time demand. The claimant, say an injured person in a motor vehicle accident, makes a time demand against a tortfeasor and his or her insurer. For instance, the claimant may offer to settle a claim as follows: “Pay the policy limits in 15 days, provide an affidavit of all your available insurance, and I, the claimant, will sign an acceptable release.” The tortfeasor and his or her insurer thereafter take steps to accept the offer, but the claimant ultimately rejects the proffered acceptance and then files suit. In the lawsuit, the tortfeasor asserts an affirmative defense of “settlement,” and moves for summary judgment arguing the proffered acceptance was sufficient to form a contract of settlement. The trial court, in ruling on that motion, may find as a matter of law that the purported settlement agreement is unenforceable, or find that the tortfeasor’s acceptance was not the “mirror image” of the claimant’s offer, and so the settlement agreement “never existed.”
Currently, Florida’s appellate rules and the jurisdictional limitations, contain no express path for immediate appeal of these “no settlement” orders. The result is that the case must slog through discovery and trial, all the way to final judgment before the appellate court can review whether or not an actual settlement was reached.
Immediate appellate review of these “no settlement” orders would provide substantial benefit and certainty to litigating parties. It doesn’t matter whether the settlement agreement is found to exist or not. The parties would know quickly where they stand, and certainty promotes resolution.
This proposed rule change was made as part of the Florida Bar Appellate Rules Committee’s regular three-year cycle of amendment proposals. A public comment period ends on April 3, 2017. The Florida Supreme Court will likely openly debate the proposal at an oral argument to be set in June 2017. A decision will likely come before years’ end.
For any further questions, please contact Anthony Russo.
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