Lanza v. Damian Carpentry, Inc.

• Decision Date: 13 March 2009
• Docket Number: No. 1D08-2971.,1D08-2971.
• Citation: 6 So.3d 674
• Parties: Marcos LANZA, Appellant, v. DAMIAN CARPENTRY, INC. and FCCI Insurance Group, Appellees.
• Court: Florida District Court of Appeals

6 So.3d 674

Marcos LANZA, Appellant, v. DAMIAN CARPENTRY, INC. and FCCI Insurance Group, Appellees.

No. 1D08-2971.

District Court of Appeal of Florida, First District.

March 13, 2009.

Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Richard E. Zaldivar, Miami, for Appellant.

Cora Cisneros Molloy and Scott A. Beatty of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellees.

PER CURIAM.

Claimant challenges the Judge of Compensation Claims' (JCC) order enforcing the parties' agreement to settle Claimant's case for $17,500, inclusive of attorney's fees and costs, arguing the essential terms of the agreement were not reached. We affirm.

Claimant's accident occurred on December 21, 1999. Claimant hired Richard Zaldivar as his attorney and filed a petition for benefits (PFB) in 2004. In response, the Employer/Carrier (E/C) denied all benefits based on the expiration of the statute of limitations. The E/C never rescinded their denial and no benefits were paid to Claimant.

The record indicates that during settlement negotiations, Zaldivar made an offer to settle the claim for $17,500, inclusive of fees and costs. The E/C accepted the offer.

After the parties reached settlement, Zaldivar provided a "breakdown" of the settlement funds to the E/C. He requested that the E/C create documents indicating a settlement of $11,750, with a $10,000 payment to Claimant (of which $1,750 was to be designated as a "statutory" fee), along with a separate stipulation for fees paid by the E/C in the amount of $5,750. At no time prior to reaching the settlement agreement of $17,500, inclusive of fees and costs, did Zaldivar discuss a separate stipulation for fees to be paid by the E/C.

Because Zaldivar did not secure any benefits for his client (the sole legal basis for a fee payable by the E/C), the E/C did not agree to draft documents in the manner requested. Zaldivar then requested that the E/C rescind their statute of limitations defense so as to give the appearance that he obtained "benefits" and provide justification for a fee payable to him by the E/C. The adjuster refused and sent the $17,500 to Zaldivar, indicating he was free to reach an agreement with his client for the fees he desired.

The E/C filed a motion to enforce the settlement agreement and the JCC held two hearings on this motion. Zaldivar did not attend the initial hearing due to a family medical issue. The JCC continued the hearing to ensure Zaldivar's personal appearance. The JCC entered an order continuing the hearing and requiring Zaldivar's personal appearance at the next hearing.

Zaldivar did not attend the continued hearing held nearly 90 days later and instead sent an associate who informed the JCC that, due to medical reasons, it was impossible for Zaldivar to appear in person. The JCC called Zaldivar and left a message informing him the hearing would be rescheduled when he could personally attend. The JCC received a return message from Zaldivar that "he didn't care what the judge was going to do regarding the hearing." Based on this course of conduct, the hearing proceeded without any evidence being introduced opposing the E/C's assertion that the parties entered into an agreement settling the claim, inclusive of attorney's fees and costs, for $17,500. At the conclusion of the hearing the JCC found that the parties entered into an agreement to settle the entire claim for $17,500, inclusive of attorney's fees and costs,...