In this auto accident case, Wal-Mart, the installer of an allegedly defective tire, sought discovery of settlement amounts paid by several co-defendants, including the car manufacturer, the tire manufacturer and the car dealer. Wal-Mart claimed that this discovery was necessary to prove its set-off defense of the total amount paid by the other defendants. The trial court denied Wal-Mart’s motion to compel on the basis that the discovery was not reasonably calculated to lead to the discovery of admissible evidence. The appellate court affirmed, holding in part that Fla. Stat. § 768.81 abolished joint and several liability and therefore the settlement amounts could not be irrelevant.
The Proposal summarized the contemplated release thusly: “[Jones] will execute a full release of liability in favor of Publix Supermarket Inc., a Florida Corporation and it’s [sic] affiliated insurance company, and a Stipulation for Voluntary Dismissal.” The trial court felt that was not a sufficient summary.
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The Jones opinion closes with the court acknowledging it is the preferred practice for a Proposal to set forth the terms of a release particularly either within the Proposal or by attaching the proposed release. Nevertheless, on the Jones facts, the Proposal was found enforceable.
The time has come to amend the Proposal rule to eliminate this type of uncertainty. Clearly, it is the best practice to attach to the Proposal all documents that are to be signed if the Proposal is accepted. So let’s put that in the rule.
In this contract case, a developer moved for summary judgment against a buyer of a condominium. In what was initially a resounding victory for the buyer, the trial court not only denied the developer’s motion for summary judgment, but also sua sponte granted the buyer a summary judgment even though the buyer never moved for summary judgment. The appellate court reversed, holding, “Where a party has not filed a summary judgment motion or where no notice or opportunity to be heard has been given to the opposing side to present opposing affidavits, a trial court may not sua sponte grant summary judgment in favor of the non-movant.” (citing See Hotel 71 Mezz Lender, LLC v. Tutt, 36 Fla. L. Weekly D1672 (Fla. 3d DCA Aug. 3, 2011)).