Nunez v. City of Hialeah et al

Filing 58

ORDER DENYING re 6 MOTION for Settlement Agreement to be Enforced filed by City of Hialeah, ( Amended Pleadings due by 3/23/2015.) Signed by Judge Beth Bloom on 3/11/2015. (cqs)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO. 14-21298-CIV-BLOOM/SELTZER
JORGE NUNEZ, as personal representative
of the estate of LUIS ENRIQUE NUNEZ, deceased,
Plaintiff,
v.
CITY OF HIALEAH, et al.,
Defendants.1
__________________________________________/
ORDER DENYING MOTION TO ENFORCE SETTLEMENT AGREEMENT
THIS CAUSE came before the Court on Defendant City of Hialeah’s Motion to Enforce
Settlement Agreement, ECF No. [6] (the “Motion”). The Court is fully advised after review of
the Motion, the parties’ briefs, the record (including the transcript of the motion hearing held on
August 20, 2014, ECF No. [42]), and the applicable law.
I.

Background
Plaintiff filed the instant action in state court on February 15, 2014 for excessive force,

under 42 U.S.C. § 1983, and for wrongful death, intentional infliction of emotional distress,
mental anguish, and negligence under Florida law after Luis Enrique Nunez was shot and killed
by City of Hialeah police officers responding to a 911 call made on February 18, 2012. See
generally ECF No. [1-1].

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Plaintiff filed an amended complaint replacing Bismark Nunez, individually and as executor de son tort
of Luis Enrique Nunez, with Jorge Nunez, as personal representative of the estate of Luis Enrique Nunez, deceased.
The amended complaint also added additional defendants to replace the John Doe officers. Compare ECF No. [1-1]
with ECF No. [43]. The Clerk sent a notice to Plaintiff indicating a failure to add these parties and requiring
Plaintiff to file a Notice of Entry of Parties, see ECF No. [44], to which Plaintiff complied. See ECF No. [45].
Defendant filed an unopposed motion for extension of time to respond to the amended complaint, ECF No. [46], one
week after the amended complaint was filed. By virtue of filing this motion, Defendants have conceded that the
filing of the amended complaint was procedurally proper and has waived any objection. Thus, the docket has been
corrected to reflect only Jorge Nunez, as personal representative of the estate of Luis Enrique Nunez, deceased, as
Plaintiff in this action.

CASE NO. 14-21298-CIV-BLOOM/SELTZER
Once Defendant became aware of the instant lawsuit on March 17, 2014, the attorney for
Defendant, William M. Grodnick, Esq., contacted Plaintiff’s attorney at the time, Phillip G.
Mitchell, Esq., and the two attorneys discussed the case and potential settlement. The purported
agreement had three key components: 1) payment of $140,000 by Defendant to Plaintiff, 2) a
general release, and 3) an apology letter from Defendant. See, e.g., ECF No. [6] at 3.
On March 21, 2014, Mr. Mitchell e-mailed Mr. Grodnick stating “[a]ttached is the W-9.
Please have the check made out to “Mitchell & West, LLC Trust Account” and on the memo line
have the name of the parties.” ECF No. [6-1] at 22. Mr. Grodnick responded on March 26, 2014
that the city’s insurance committee would be meeting the next day to approve the settlement. Id.
Mr. Grodnick also pointed out to Mr. Mitchell that he believed the decedent’s estate did not have
a personal representative and one would need to be appointed. See id. Mr. Grodnick advised
Mr. Mitchell that the following week was the last week Mr. Grodnick would be employed by
Defendant. See id. The same day, Mr. Grodnick received an e-mail from Mr. Mitchell’s office
that provided the order appointing a personal representative in the probate case and letters of
administration. See id. at 24-26. Mr. Mitchell was advised on March 27, 2014 that the city’s
insurance committee approved the settlement. See id. at 28. Later that day, Mr. Grodnick sent
Mr. Mitchell a draft settlement agreement and indicated asked him to review and let him know if
it was acceptable. Mr. Grodnick also indicated he was “preparing the letter etc.” Id. at 30. On
March 28, 2014, Mr. Grodnick sent Mr. Mitchell an e-mail of a revised settlement agreement.
See id. at 43. On March 31, 2014, Mr. Grodnick sent Mr. Mitchell an e-mail with an attachment
“lettertonunez.docx” asking Mr. Mitchell to “[p]lease review the draft letter.” Id. at 53.
On April 3, 2014, Mr. Mitchell sent an e-mail to Mr. Grodnick indicating that “the family
wanted to see if we can meet tomorrow at 3:30pm rather than 10am. Please confirm.” Id. at 58.

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CASE NO. 14-21298-CIV-BLOOM/SELTZER
Mr. Grodnick replied: “[y]es. Lorena and I will be present to meet the family, sign the settlement
agreement and deliver the settlement check.” Id. On April 4, 2014, Mr. Mitchell forwarded an
e-mail containing a “Notice of Service of Court Documents” indicating that a “Document Title:
Notice:” was filed, to which Mr. Grodnick replied: “[t]he City will be enforcing the agreement.”
Id. at 62. The document was a “Notice of Charging Lien” filed in state court by Mr. Mitchell on
April 4, 2014. Id. at 64.
On April 11, 2014, Defendant City of Hialeah filed a Notice of Removal, ECF No. [1],
and filed the instant Motion on April 18, 2014. The Motion was referred to Magistrate Judge
Jonathan Goodman, and after recusal, was reassigned to Magistrate Judge Chris M. McAliley.
See ECF Nos. [14], [22]. The Motion was then referred to Magistrate Judge Alicia O. Valle after
the case was reassigned to the undersigned. See ECF Nos. [28], [30]. After Judge Valle
conducted an evidentiary hearing on August 20, 2014, the Motion was reassigned to Magistrate
Judge Barry S. Seltzer after Judge Valle’s recusal. See ECF No. [40]. Plaintiff thereafter filed an
Amended Complaint. See ECF No. [43]. The parties then filed a Joint Motion to Stay on
October 6, 2014, and the Court administratively closed the case on October 7, 2014. See ECF
No. [49]. The Court re-opened the case on February 2, 2015, in order for the undersigned to
consider the pending Motion. See ECF No. [56].
II.

Discussion
“[A] district court has inherent power to summarily enforce settlement agreements

entered into by parties litigant in a pending case.” Ford v. Citizens & S. Nat’l Bank, 928 F.2d
1118, 1121 (11th Cir. 1991). Florida law governs the issue of whether the parties reached an
enforceable settlement agreement. See Londono v. City of Gainesville, 768 F.2d 1223, 1227
(11th Cir. 1985). Settlement agreements need not necessarily be in writing to be enforceable.

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CASE NO. 14-21298-CIV-BLOOM/SELTZER
See BP Prods. N. Am., Inc. v. Oakridge at Winegard, Inc., 469 F. Supp. 2d 1128, 1132 (M.D.
Fla. 2007). “Settlement agreements are favored as a means to conserve judicial resources.
Courts will enforce them when it is possible to do so.” Spiegel v. H. Allen Holmes, Inc., 834 So.
2d 295, 297 (Fla. 4th DCA 2002) (citing Long Term Mgmt., Inc. v. Univ. Nursing Ctr., Inc., 704
So. 2d 669, 673 (Fla. 1st DCA 1997)). “They are interpreted and governed by the law of
contracts.” Id. (citing Williams v. Ingram, 605 So. 2d 890 (Fla. 1st DCA 1992)). “To compel
enforcement of a settlement agreement, its terms must be sufficiently specific and mutually
agreed upon as to every essential element.” Id. (citing Don L. Tullis and Assoc., Inc. v. Benge,
473 So. 2d 1384 (Fla. 1st DCA 1985)). “Uncertainty as to nonessential terms or small items will
not preclude enforcement of a settlement agreement.” Id. (citation omitted). “However, ‘[t]he
making of a contract depends not on the agreement of two minds in one intention, but on the
agreement of two sets of external signs—not on the parties having meant the same thing but on
their having said the same thing.” Id. (quoting Blackhawk Heating & Plumbing Co., Inc. v. Data
Lease Fin. Corp., 302 So. 2d 404, 407 (Fla. 1974)). “The party seeking to enforce a settlement
agreement bears the burden of showing the opposing party assented to the terms of the
agreement.” BP Prods., 469 F. Supp. 2d at 1133 (citing Carroll v. Carroll, 532 So. 2d 1109
(Fla. 4th DCA 1988)). Competent substantial evidence must support a finding of a meeting of
the minds between the parties. Id. (citing Long Term Mgmt., 702 So. 2d at 673).
“In Florida, the party seeking to enforce the settlement agreement must establish that
counsel for the opposing party was given the clear and unequivocal authority to settle the case by
his or her client.” Id. (citing Spiegel, 834 So. 2d at 297). Factors to determine whether clear and
unequivocal authority existed include:
1) whether the client knew his lawyer was in the process of negotiating a
settlement; 2) whether and how many times the client met or spoke with his
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CASE NO. 14-21298-CIV-BLOOM/SELTZER
attorney while settlement negotiations were ongoing; 3) whether the client was
present in the courtroom when the settlement was announced in open court; 4)
whether the client immediately objected to the settlement; and 5) whether the
client was an educated man who could understand the terms of the settlement
agreement.
Id. (citing Murchison v. Grand Cypress Hotel Corp., 13 F.3d 1483 (11th Cir. 1994)).
Defendant argues that “the Settlement Agreement and General Release was legally
binding on March 28, 2014, at the moment Mr. Grodnick accepted Plaintiff’s changes and had
the requested changes incorporated into the agreement and e-mailed to Mr. Mitchell.” ECF No.
[6] at 9 (citing ECF No. [6-1] at 44-51). The record, however, shows otherwise. The purported
agreement in this case had three key components: 1) payment of $140,000 by Defendant to
Plaintiff, 2) a general release, and 3) an apology letter from Defendant. On March 28, 2014, the
language of the apology letter was not finalized, and the letter was “critical” to the purported
settlement. Id. at 54; ECF No. [42] at 27, 80-81. Thus, Defendant’s argument that the purported
settlement agreement became legally binding on March 28, 2014 fails because there was no
mutual agreement as to every essential element of the settlement. See Spiegel, 834 So. 2d at 297.
Further, there is insufficient evidence that Mr. Mitchell had clear and unequivocal
authority to enter into the settlement agreement after March 28, 2014. For example, Plaintiff
flatly denies giving Mr. Mitchell authority to settle. Plaintiff testified that he never gave Mr.
Mitchell authority to settle the case for $140,000 before Mr. Mitchell presented with a closing
statement reflecting that amount and settlement papers for him to sign on April 1, 2014. See
ECF No. [42] at 126. Plaintiff testified that he did not sign the closing statement or any of the
other documents Mr. Mitchell gave to him, but that he “would take the documents and that
somebody that knew about this could review them for me.” Id. The Plaintiff discharged Mr.
Mitchell the day of the scheduled meeting.. Rather than sign the documents, Plaintiff testified

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CASE NO. 14-21298-CIV-BLOOM/SELTZER
that he and his family decided to change attorneys “because we didn’t feel that he had
represented us adequately.” Id. Plaintiff testified that the basis of discharging Mr. Mitchell was
that “[t]he communication we had with Mr. Mitchell was very bad. He did not represent us as he
should have, and he took the decision without consulting with the family about the settlement
statement.” Id. at 127.
Mr. Mitchell’s testimony paints a different picture with respect to authority before April
1, 2014. Mr. Mitchell testified that Plaintiff gave him authority to speak on his behalf during
their second meeting together in 2012, “whether it was for settlement purposes, whether it was
for investigative purposes.” Id. at 73. Mr. Mitchell testified that this authority continued when
Mr. Mitchell first rejected Defendant’s offer for $100,000 during a phone conversation—without
communicating the offer to Plaintiff, id. at 98-99—and through March 20, 2014, when Mr.
Mitchell explained to Plaintiff that Defendant agreed to the framework of change in policy, the
written affirmation, and a payment of $140,000. Id. at 74. Mr. Mitchell further testified that
Plaintiff at that time added two more “non-monetary terms:” a medical examiner’s report and for
the city to “facilitate the personal belongings of the decedent because it was still in their
possession.” Id. at 75. Mr. Mitchell testified that he told Plaintiff he did not believe that would
be a problem, but that he would call Plaintiff if there was a problem, and “plus there are some
settlement documents that are going to have to be executed.” Id. Mr. Mitchell testified that
Plaintiff expressed an agreement to the $140,000 amount and conveyed a willingness to enter
into the settlement agreement. Id.
Yet, there are significant consistencies between Mr. Mitchell’s testimony and Plaintiff’s.
Mr. Mitchell testified that Plaintiff and Bismark Nunez came into his office, on April 1, 2014,
when Mr. Mitchell had the release and the incorporated settlement agreement. Id. at 78. Mr.

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CASE NO. 14-21298-CIV-BLOOM/SELTZER
Mitchell explained that he went through the release and settlement agreement with Plaintiff and
Bismark Nunez “line by line and paragraph by paragraph.” Id. Mr. Mitchell also “highlighted
the objectionable language” in the apology letter, Plaintiff agreed that the language should be
removed, and “then there was a telephone conversation with the city attorney because the city
attorney had or [he] had called while the family was there, and we were discussing the letter.”
Id. at 81. Mr. Mitchell testified that he told Mr. Grodnick during that phone call that they had a
deal because the case was settled. Id. at 85. Mr. Mitchell’s testimony continues:
So Jorge had told me that he wanted to bring the release and settlement agreement
with him. . . So I said, [“]Okay.” I said, “do you want to just, instead of going
back to my office,’ I said, “do you want to go down to the city attorney’s office
and execute the documents there?” And he says, “Yes.” Now, I didn’t have a
final letter because we objected to that one sentence. So I couldn’t give him this
letter when he left because it wasn’t in final form, but he did take the settlement
agreement and my closing statement, and of course, the release because it is
incorporated. . . . He didn’t take the draft apology letter because the apology letter
wasn’t in final letter.
Id. at 81-82. In response to the Court’s question regarding the rationale behind objecting to the
letter’s language, Mr. Mitchell responded: “I don’t think that we wanted to degrade the decedent
in the context of everything that had happened.” Id. at 84.2
Mr. Mitchell testified that Plaintiff was not willing to sign the closing statement during
the April 1st meeting because “[h]e wanted to take it to the rest of the family members which is
understandable.” Id. at 106. When asked on cross-examination about not getting Plaintiff’s
signature or anything in writing, Mr. Mitchell responded:
Counsel, you know and I know that there is no standard saying either. There has
to be a written communication, whether it is an e-mail or a letter. I will be frank
with you. I took Jorge’s word for it because of the prior interactions I had with
him and his son. I took his word for it, you know. That is what I did.

2

The final letter, signed by Mr. Grodnick, is dated April 3, 2014. See ECF No. [6-1] at 56.

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CASE NO. 14-21298-CIV-BLOOM/SELTZER
Id. at 108. Mr. Mitchell confirmed that Plaintiff never executed any of the documents, and that
less than one hour before the scheduled meeting on April 4, 2014 with Mr. Grodnick—to execute
the agreement and deliver the settlement check—Mr. Mitchell was discharged. Id.
Based on the evidence in the record, Defendant has not sufficiently shown that Plaintiff
had given Mr. Mitchell clear and unequivocal authority to settle the case after March 28, 2014.
Mr. Mitchell recognized that on April 1, 2014, Plaintiff was not willing to sign the closing
statement and wanted to review the documents with the rest of his family members—something
Mr. Mitchell even regarded as “understandable.” Whether Mr. Mitchell’s authority was to settle
the case was clear and unequivocal on April 1, 2014 may have been more evident if Plaintiff had
executed the documents and brought copies home to his family to review them, but that was not
the case here. See id. at 106. Taking Plaintiff’s “word for it” that he would come back to
execute the documents at the April 4, 2014 meeting is not a sufficient basis to find that Plaintiff
gave clear and unequivocal authority to settle the case after March 28, 2014. Further, Defendant
has not presented evidence that Plaintiff was aware of Mr. Mitchell’s statement to Mr. Grodnick
that the case was settled during the April 1, 2014 phone call—thus showing no basis that
Plaintiff was aware of any execution of the agreement or had an opportunity to immediately
object. Mr. Grodnick also never received any notification that the signed apology letter on April
3, 2014 was accepted. Nor is there sufficient evidence that the Plaintiff reviewed and approved
the apology letter – a critical component of the settlement agreement. Thus, Defendant has not
sufficiently shown that at any time was there a settlement agreement that was executed with the
clear and unequivocal authority of Plaintiff.3 Defendant’s motion is accordingly denied.

3

The Court also notes that Plaintiff became the personal representative for the decedent’s estate on March
3, 2014. See ECF No. [6-1] at 25. The proposed settlement agreement contains two signature lines: one for Plaintiff
as personal representative and the other for Bismark Nunez (the decedent’s father) individually. See id. at 50. The
proposed settlement agreement also refers to Bismark Nunez, individually “and as survivor of the Estate.” Id. at 44.

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CASE NO. 14-21298-CIV-BLOOM/SELTZER
III.

Conclusion
For these reasons, it is ORDERED AND ADJUDGED as follows:
1. Defendant City of Hialeah’s Motion to Enforce Settlement Agreement, ECF No. [6],
is DENIED;
2. Defendants shall answer or otherwise respond to Plaintiff’s Amended Complaint,
ECF No. [43], on or before March 23, 2015;
3. A separate amended scheduling order setting the date for trial and other deadlines will
follow.
DONE AND ORDERED in Fort Lauderdale, Florida, this 11th day of March, 2015.

_________________________________
BETH BLOOM
UNITED STATES DISTRICT JUDGE
cc:

counsel of record

The proposed settlement agreement, however, excludes the decedent’s mother, Brunilda Nunez, who was listed as a
beneficiary of the estate in the petition for summary administration, which was submitted in state probate court in
2012. See ECF No. [6-1] at 4. Mr. Mitchell also testified that he never met her because he “had full communication
with Jorge,” though he did meet with Bismark. ECF No. [42] at 109-10.

9