JONES III v. WALGREEN CO

Filing 152

ORDER DENYING 138 MOTION TO SET ASIDE SETTLEMENT AGREEMENT. Case remains closed in accordance with 137 Order of Dismissal dated 11/22/2011. Signed by SENIOR JUDGE STEPHAN P MICKLE on 9/28/2012. (jws)

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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF FLORIDA
GAINESVILLE DIVISION
SAMUEL JONES III,
Plaintiff,
v.

CASE NO.: 1:08cv185-SPM/GRJ

WALGREEN CO.
d/b/a WALGREENS,
Defendant.
_______________________/
ORDER DENYING MOTION TO SET ASIDE SETTLEMENT AGREEMENT
Plaintiff’s motion to set aside the settlement agreement came before the
Court for an evidentiary hearing on August 22, 2012. Upon consideration of the
evidence and arguments presented, the Court makes the following findings of
fact and conclusions of law.
1.

The determination of whether a binding settlement agreement was

reached by the parties is governed by principles of Florida contract law.
Murchison v. Grand Cypress Hotel, Corp., 13 F.3d 1483, 1485-86 (11th Cir.
1994).
2.

Under Florida contract law, an attorney may settle a client’s case if

the client has given him clear and unequivocal permission to do so. Bursten v.

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Green, 172 So.2d 472 474 (Fla. 2d Dist. Ct. App. 1965). The client will then be
bound by the settlement reached. Id. If, however, the attorney did not have
authority to settle, the client will not be bound by the settlement unless the client
subsequently ratifies or accepts the benefits of the settlement. Id.; Nagymihaly
v. Zipes, 353 So2d 943, 944 (Fla. 3d Dist. Ct. App. 1978).
3.

The circumstances in this case demonstrate that Plaintiff gave his

attorney clear and unequivocal authority to settle.
4.

Plaintiff and his attorney, Archibald J. Thomas III, had numerous

discussions about settlement. They engaged in two formal mediation
conferences with Walgreens on September 22, 2009 and January 14, 2012,
where they discussed settlement, including standard terms that are included in a
typical settlement agreement such as provisions for confidentiality, no rehiring,
non-disparagement, and a general release. The mediations ended in impasse
because the Plaintiff and Walgreens could not agree on a monetary amount to
settle the case.
5.

After the first trial of this case ended in a hung jury on July 8, 2011,

Plaintiff and Attorney Thomas discussed settlement again. They continued
negotiations with Walgreens as the date for retrial approached. These
negotiations focused on the monetary amount for settling the case with the
standard terms being a given. There were also discussions about allowing
Plaintiff to resign in lieu of being terminated and structuring the settlement in a

CASE NO.: 1:08cv185-SPM/GRJ

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way that Plaintiff would have less in taxes to pay, and thus net more to himself,
all of which Walgreens was willing to do.
6.

With the retrial looming, the settlement offers from Walgreens were

increasing. Although Plaintiff wished to proceed to trial to vindicate his rights, he
was having difficulty paying for Attorney Thomas’s legal services and owed
Attorney Thomas approximately $21,000.00 in fees and costs for the first trial.
7.

During the back and forth of settlement negotiations with

Walgreens, Plaintiff sent Attorney Thomas an email on November 1, 2011 with
an instruction that Plaintiff would “consider $160,000 . . . [but] [p]lease don’t
commit to anything.” Attorney Thomas explained to Plaintiff that the offers going
back and forth between Plaintiff and Walgreens were real offers to settle the
case, not hypothetical proposals. He explained that it made little sense for
Plaintiff to propose a settlement amount to Walgreens if Plaintiff did not intend to
actually settle if Walgreens agreed to the amount. He also explained that
Walgreens would not make any movement on the settlement amount if Plaintiff
was unwilling to make a binding offer. With this explained, Plaintiff gave Attorney
Thomas authority to make a $160,000 settlement offer to Walgreens.
8.

Plaintiff and Walgreens continued with their settlement

negotiations. Attorney Thomas urged Plaintiff to accept a settlement if
Walgreens came up to $150,000.00. Attorney Thomas told Plaintiff that it would
be foolish to gamble on winning at trial in the face of such a reasonable offer

CASE NO.: 1:08cv185-SPM/GRJ

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from Walgreens. Attorney Thomas also advised Plaintiff that Attorney Thomas
was unwilling to finance the cost of a second trial on top of the $21,000.00 that
Plaintiff still owed to him for the first trial.
9.

As Plaintiff and Attorney Thomas were preparing for the pretrial

conference, they again discussed settlement. On Sunday, November 20, 2011,
Plaintiff met with Attorney Thomas. They discussed making a $155,000.00
settlement offer to Walgreens. They expected that Walgreens would counter with
$145,000.00. Attorney Thomas explained to Plaintiff that if that occurred,
Attorney Thomas would reduce his legal fees by $10,0000.00 resulting in net
settlement amount to Plaintiff at the same level as Plaintiff’s $155,000.00 offer.
Plaintiff authorized Attorney Thomas to make Walgreens an offer of
$155,000.00. Attorney Thomas conveyed the offer to Walgreens that Sunday.
The next day, Monday, November 21, 2011, instead of countering with
$145,000.00, Walgreens accepted Plaintiff’s $155,000.00 offer.
10.

Plaintiff’s offer and Walgreens’ acceptance resulted in a binding

settlement of the case. All essential terms were covered by the parties’
agreement, including the monetary amount that was the subject of the parties’
prolonged negotiations, Plaintiff’s resignation in lieu of termination, and the
standard terms discussed at mediation. Under Florida law, such a settlement
agreement is binding even if it is not in writing and even if no money has been
transferred. State Farm Mutual Automobile Insurance Co. v. InterAmerican Car

CASE NO.: 1:08cv185-SPM/GRJ

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Rental, 781 So.2d 500, 502 (Fla. 3d Dist. Ct. App. 2001).
11.

On Tuesday, November 22, 2011, Plaintiff sent Attorney Thomas

an email asking if he had conveyed the $155,000.00 offer to Walgreens. If not,
Plaintiff asked Attorney Thomas to hold off on doing so. By that time, however,
the offer had already been conveyed and accepted, resulting in a binding
settlement.
12.

Plaintiff argues that despite the back and forth with Walgreens on

the settlement amount, he never intended to bind himself with the offers he was
making to Walgreens and only authorized Attorney Thomas to “test the waters.”
Attorney Thomas previously explained to Plaintiff, however, that he needed to
make real offers to get Walgreens to engage in negotiations. Plaintiff knew this
and gave Attorney Thomas clear and unequivocal authority to make the
$155,000.00 settlement offer. Based on the foregoing, it is
ORDERED AND ADJUDGED:
1.

Plaintiff’s motion to set side the settlement agreement (doc. 138) is

denied.
2.

This case remains closed in accordance with the Order of

Dismissal (doc. 137) dated November 22, 2011.
DONE AND ORDERED this 28th day of September, 2012.

s/ Stephan P. Mickle
Stephan P. Mickle
Senior United States District Judge
CASE NO.: 1:08cv185-SPM/GRJ