Estate of Tobias v. Barnaby

• Decision Date: 16 January 2002
• Docket Number: No. 3D00-329.,3D00-329.
• Citation: 804 So.2d 553
• Parties: The ESTATE OF Francis TOBIAS, by and through Personal Representative, Joanne Tobias, Appellant, v. Velma BARNABY, Olsten Kimberly Qualitycare Foundation, Inc., a New York Corporation, and All County Health Care, Inc., a Florida Corporation, Appellees.
• Court: Florida District Court of Appeals

804 So.2d 553

The ESTATE OF Francis TOBIAS, by and through Personal Representative, Joanne Tobias, Appellant, v. Velma BARNABY, Olsten Kimberly Qualitycare Foundation, Inc., a New York Corporation, and All County Health Care, Inc., a Florida Corporation, Appellees.

No. 3D00-329.

District Court of Appeal of Florida, Third District.

January 16, 2002.

Joel M. Aresty, Miami, for appellant.

Parenti, Falk, Waas, Hernandez & Cortina and Gail Parenti, Coral Gables; George, Hartz, Lundeen & Fulmer, Coral Gables; Steven T. Utrecht, Boca Raton, for appellees.

Before COPE, FLETCHER and RAMIREZ, JJ.

COPE, J.

Joanne Tobias, Personal Representative of the Estate of Francis Tobias, appeals an order enforcing settlement and dismissing the action with respect to defendant-appellee Velma Barnaby. We affirm.

The personal representative filed suit against the defendants-appellees. She alleged that the two defendant corporations had been hired to provide in-home health care for her late mother, Francis Tobias. Defendant-appellee Velma Barnaby was a home health care worker who provided services to the decedent. The complaint alleged that defendant Barnaby stole jewelry while working in the home.

Defendant All County filed a motion to enforce settlement. The motion asserted that a settlement had been reached between the personal representative and defendant All County for the sum of $15,000, a release of claim against the two corporations, and certain other terms. The settlement was outlined in correspondence between counsel, attached to the motion.

The motion asserted that despite the reaching of a settlement agreement, the personal representative had refused to execute the settlement documents. The personal representative's position was that she had not authorized the settlement.

The trial court scheduled an evidentiary hearing at which the personal representative, her counsel, and All County's counsel testified. After hearing the evidence, the court ruled that there was an enforceable settlement. This appeal follows.

The personal representative argues that there had been no meeting of the minds and therefore no enforceable settlement had been reached. We concur with the trial court that the terms outlined in the correspondence, and testified to at the hearing, were sufficiently clear and definite in the essential terms. See Metropolitan Dade County v. Estate of Hernandez, 591 So.2d 1124 (Fla. 3d DCA 1992)

.

The personal representative argues that the trial court should not have allowed her to waive the attorney-client privilege with regard to the question whether she had given her counsel authority to settle. There is no merit to this claim.

The personal representative testified at some length at the hearing regarding the settlement negotiations. The personal representative stated that she had told her counsel to negotiate the best deal that he could come up with, and that she would consider it. She denied actually giving her counsel authority to settle.

When the personal representative had concluded her testimony, the judge asked counsel for the personal representative for his version of the events. Counsel stated he could not testify regarding the question of authority unless the personal representative waived the attorney-client privilege. The personal representative promptly did so.

Counsel then confirmed a good deal of what the personal representative had said. Counsel testified, however, that after the terms had been fully negotiated with All County, the personal representative had, in fact, agreed to the settlement. The trial court resolved the conflict in testimony in favor of counsel's version of events, and ruled that there was an enforceable agreement.

In this point on appeal, the personal representative is saying in substance that the court should have intervened to stop her from waiving the privilege. We see no basis for this claim. The personal representative was the holder of the privilege and could waive it.

The more important point is that the personal representative had already waived the privilege as a matter of law by making the assertion that her counsel had settled the case without authority. Writing about this circumstance, the late Judge Letts said, "No court should countenance an announced settlement between counsel followed by escape therefrom, if one side arbitrarily reneges and then seals his counsel's lips by invoking the attorneyclient privilege." Hamilton v. Hamilton Steel Corp., 409 So.2d 1111, 1114 (Fla. 4th DCA 1982).

Judge Letts explained that this follows from the terms of the Evidence Code. The relevant provision

states: "there is no lawyer-client privilege under this section when ... a communication is relevant to an issue of breach of duty by the lawyer to his client...." Such a breach of duty is exactly what is at issue here i.e. did the lawyer have the authority and assent of all of his clients to enter into the settlement or did he breach his duty as to some of them.

409 So.2d at 1113 (citing § 90.502(4)(c), Fla. Stat.).

We thus conclude that there was a waiver...