Moore v. Gunning, 75--899
| Decision Date | 12 March 1976 |
| Docket Number | No. 75--899,75--899 |
| Citation | 328 So.2d 462 |
| Court | Florida District Court of Appeals |
| Parties | Merdis MOORE and Nathan Moore, her husband, Appellants, v. Ralph Thomas GUNNING and Reserve Insurance Company, a foreign corporation, Appellees. |
Joel T. Daves, III, of Burdick & Daves, West Palm Beach, for appellants.
Edna L. Caruso of Howell, Kirby, Montgomery, D'Aiuto & Dean, West Palm Beach, for appellees.
The issue here is whether an out-of-court oral settlement agreement entered into between litigants in an automobile negligence case is unenforceable by virtue of the provisions of Rule 1.030(d), RCP. 1 The trial court held that this rule did not apply to oral settlement agreements. In our judgment this was error.
Appellants, through their attorney, had made an out-of-court oral settlement of their pending personal injury litigation. Before the settlement papers were signed appellants reneged. Appellees amended their answer to include the defense of accord and satisfaction, and filed a counterclaim alleging the oral settlement agreement and seeking specific performance. On undisputed facts disclosing the oral settlement agreement and appellants' refusal to consummate it upon tender of the agreed sum, the court denied appellants' motion for summary judgment on the counterclaim and granted appellees' motion for summary judgment thereon. This appeal is from that order.
The early case of National Surety Co. v. Willys-Overland, Inc., 103 Fla. 738, 138 So. 24 (1931), upheld a parol settlement agreement relying upon 'the general rule' set forth in 12 C.J. 334, 335, 'that, in the absence of statutory requirement, no particular form of agreement is essential to the validity of a compromise; and it need not be in writing Unless so required by special statute.' (e.s.). National Surety, however, was decided prior to the adoption of any special statute or court rule comparable to our present day Rule 1.030(d) RCP, compelling stipulations to be in writing in order to be effective. See, Coe v. Diener, 159 So.2d 269, 271 (2nd DCA Fla.1964), and the Historical Note to Rule 1.030 RCP, F.S.A., stating that subdivision (d) derived from 1936 Common Law Rule 6.
The immediate predecessor to present Rule 1.030(d) RCP was Rule 1.5(d) FRCP. The pertinent part, which we here quote, was substantially identical to present Rule 1.030(d) RCP except for the language which we have emphasized:
(e.s.).
In the case of Coe v. Diener, supra, decided while Rule 1.5 FRCP was in effect, the court held that an out-of-court oral settlement agreement was enforceable, Rule 1.5(d) FRCP notwithstanding. The apparent rationale of the Coe decision was that a settlement agreement was not an agreement 'in respect to the proceedings' in the cause. The Coe decision has been similarly explained by other writers. 2 However, the Coe decision made no reference to an earlier case, Spencer v. Florida-Georgia Tractor Company, 114 So.2d 466 (3rd DCA Fla.1959), which affirmed a trial court's decision Not to enforce an out-of-court parol settlement agreement, citing as one of its reasons that Rule 1.5(d) FRCP relieved the trial court from a duty to recognize any stipulation of counsel which was not reduced to writing. If would thus appear that the Spencer court, at least, felt that oralsettlement agreements were 'in respect to the proceedings' in the cause and encompassed by Rule 1.5(d) FRCP.
In any event, the apparent conflict between the Coe decision and the earlier Spencer decision is not now of significance because, when Rule 1.030(d) RCP was adopted, the qualifying language, 'in respect to the proceedings in a cause,' found in Rule 1.5(d) FRCP, was omitted from Rule 1.030(d) RCP. In light of the restrictive interpretation put on Rule 1.5(d) by the Coe decision, it is logical to assume that the omission of this qualifying language was deliberate in order that the rule be more broadly interpreted so as to include All private agreements or consents between parties or their attorneys. In a recent case directly on point, Alaimo v. Tirone, 297 So.2d 584 (3rd DCA Fla.1974), Rule 1.030(d) RCP was...
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Buskirk v. Suddath of South Florida, Inc.
...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 Jud......
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