Buskirk v. Suddath of South Florida, Inc.

• Decision Date: 30 June 1981
• Docket Number: No. 80-1364,80-1364
• Citation: 400 So.2d 810
• Parties: Arbutus L. BUSKIRK, Appellant, v. SUDDATH OF SOUTH FLORIDA, INC., a Florida corporation, New York Central MutualFire Insurance Company, a foreign corporation, Globe Adjustment Company, aFlorida corporation, and Boma Construction, Inc., a Florida corporation, Appellees.
• Court: Florida District Court of Appeals

Page 810

400 So.2d 810

Arbutus L. BUSKIRK, Appellant, v. SUDDATH OF SOUTH FLORIDA, INC., a Florida corporation, New York Central MutualFire Insurance Company, a foreign corporation, Globe Adjustment Company, aFlorida corporation, and Boma Construction, Inc., a Florida corporation, Appellees.

No. 80-1364.

District Court of Appeal of Florida, Third District.

June 30, 1981.

Rehearing Denied July 31, 1981.

Ellis Rubin, Naples, and Alan E. Dubow, Key Biscayne, for appellant.

Virgin, Whittle & Garbis and Gary E. Garbis, Horton, Perse & Ginsberg, Carroll, Halberg & Meyerson, Peters, Pickle, Flynn, Niemoeller, Stieglitz & Downs and Nancy Schleifer, Greenberg & Murray and Donald Murray, Miami, for appellees.

Before HENDRY, NESBITT and BASKIN, JJ.

HENDRY, Judge.

On this appeal we are asked to determine the applicability of Rule 2.060(g), Florida Rules of Judicial Administration, to a settlement agreement entered into prior to the effective date of the rule.

Appellant Buskirk seeks review of a final judgment enforcing the terms of a settlement agreement allegedly entered into by the parties to this appeal. On October 21, 1977, during a deposition of appellant, a stipulation between the parties was dictated before a court reporter. The transcript of the stipulation was never signed by appellant or her attorney, nor was signature of the agreement waived by either. Approximately ten days later, each of the other parties was notified of appellant's rejection of the terms of settlement. Appellees' motion for enforcement of the settlement was denied, and defenses of accord and satisfaction were stricken from their pleadings upon appellant's motion. Discovery continued and the cause was set for trial. Shortly before trial, the judge below entered an order enforcing the settlement. It is from this order that appeal is taken.

Appellant contends that the settlement agreement is unenforceable because neither she nor her attorney signed the agreement or waived the signature requirement. We agree and reverse.

Rule 1.030(d), Florida Rules of Civil Procedure, in effect at the time of the agreement, provided in pertinent part:

(d) Stipulations. No private agreement or consent between parties or their attorneys shall be of any force unless the evidence thereof is in writing, subscribed by the party or his attorney against whom it is alleged... agreements made at depositions which are incorporated in the transcript thereof need not be signed when signing thereof is waived.

It is undisputed that the agreement was never signed by appellant or her attorney, nor were their signatures waived. Consequently, the agreement did not comply with the requirements of Rule 1.030(d), and for that reason is unenforceable. Davies v. Canco Enterprises, 350 So.2d 23 (Fla. 3d DCA 1977); Moore v. Gunning, 328 So.2d 462 (Fla. 4th DCA 1976); Alaimo v. Tirone, 297 So.2d 584 (Fla. 3d DCA 1974). Appellees, however, argue that Rule 2.060(g), ¹ Florida Rules of Judicial Administration, governs the instant case, and that under this provision, settlement agreements are excluded from the requirement that stipulations be in writing and signed by the party against whom enforcement is sought.

Upon careful review of the record, briefs and arguments, we find that Rule 2.060(g) is not applicable to the settlement agreement sub judice. ² The stipulation was entered into on October 21, 1977, and Rule 2.060 did not become effective until July 1, 1978, almost one year later. A law is presumed to have only prospective effect absent clear intent to the contrary. Walker & LaBerge, Inc. v. Halligan, 344 So.2d 239 (Fla. 1977); Foley v. Morris, 339 So.2d 215 (Fla. 1976); Yamaha Parts Distributors Inc. v. Ehrman, 316 So.2d 557 (Fla. 1975); Love v. Jacobson, 390 So.2d 782 (Fla. 3d DCA 1980). No clear intent mandating retroactive application appears in the Florida Supreme Court's enactment of the Rules of Judicial Administration. In re Florida Rules of Judicial Administration, 360 So.2d 1076 (Fla. 1978). In fact, Rule 1.030(d), Rules of Civil Procedure was not repealed until July 1, 1979, when the...