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Help with Enforcing a Settlement Agreement


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Hi,

 

I have been defending a long running lawsuit in a Florida court. The Judge set a trial date, and the attorney for the Plaintiff left me a voice mail message making a settlement offer, in which he stated: "We both walk away, neither side pays the other anything, and we each bare our own costs and expenses.  The offer is good for 24 hours. Let me know."  I wrote a letter back to the attorney, quoted his voice mail offer verbatim, noted the time and date of the offer, and said the offer was accepted. In addition, I asked the he send me a copy of a Settlement Notice for the Court, per our local rules of procedure.

 

Now, the attorneys at Sleazy & Sleazy, P.A. appear to be trying out back out of their Agreement.

It is my understand that their settlement offer, even one made orally, is a legally binding contract. They made an offer, I accepted, and we agreed to the essential terms. The attorney who made the offer is not taking my call. I called his partner, who is playing the game "I was not privy to this call or Agreement - I'll have my partner call you."  Of course, the partner does not call.

 

I plan to go back to court with a Motion to Enforce the Settlement Agreement, however, not sure how to legally memorialize the attorneys voice mail message as evidence. I believe I may not be able to just hold up my cell phone and play the voice mail in court, but need to do this in a more formal fashion. I called my mobile phone provider, but they will only respond to a subpoena, and I wont have enough time to send one out and wait for their reply prior to the trial date.

 

Any thoughts on how to approach this issue?

 

Thank you.

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Determined, I don't know the legalities involved, but you pay the phone company.  In exchange, they allow you to make calls and have people leave you voice messages -- YOUR voice messages!  I would think the judge would allow you to play your own voice messages.  If not, heck YES, subpoena the phone company.

 

If it comes to that, be sure to let the atty hang himself by lying to the judge first, then whip out the evidence.  Seems like this atty could be in BIG trouble with the court and the bar!

 

Brighter minds on the forum will correct me.

Good luck!

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The problem is the attorney who made the offer may not have had the authority to do so.  Offer in writing + acceptance= Agreement.  You did NOT have the offer in writing from the attorney.  Unless it is entered to the court it isn't final and they can back out.  I know of no way you can force them to continue with the plan.  Even in criminal cases where a plea is reached either side can walk away before the judge's gavel falls and withdraw the offer or acceptance.  

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I disagree with you ClydesMom.  First, rules for criminal courts and civil are very different. Second, oral contracts are binding if they can be proven. I can prove both their offer and my acceptance. 

 

You can disagree all you want but Florida only recognizes oral contracts in limited circumstances and if yours do not fit then they law firm can withdraw the offer.  So while an oral contract CAN BE binding they are not universally considered contracts and enforceable across the board.  AND if this particular attorney lacked the standing with the firm and the case to make the offer then it is null and void.  

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Oral agreements to settle take place every day. I realize you're in state court, but that doesn't change anything. Your problem is that you're probably dealing with an opposing counsel who could not tell the truth if his life depended on it. As Bruno suggested, start with sending an email, "pursuant to your offer to settle and my subsequent acceptance of  your offer, are  you going to draft the agreed order or shall I." If they continue to ignore you, file a motion to compel them to comply with settlement agreement and notice it for hearing. Your voice mail message should be all you need.

 

 

 

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Thanks for the feedback. ClydesMom - their voice mail started with "We've spoken to our client "ABC Company" and they propose..."  The attorney who made the offer is the lawsuit's counsel of record. What made you think they did not have standing to make the offer?

 

Bruno and Nascar - my first response to the oral offer on my voice mail was to call. When I received no return call in a few hours, I did not wait long. At 3:00 PM of the very same day, I sent a letter quoting their settlement offer and accepting it, and citing the Florida rule where we both need to notify the Judge so they can take a pending trial date of his calendar and reassign it to another party. The letter was properly served  and has been greeted with silence since. I phoned the attorney last week - and got the partner (not the one who presented the settlement offer) and he played cat and mouse with me, saying he was not privy to the call, can't comment on it and his partner would call me back.  Of course he has not.

 

I have a time crunch here. The Judge has noticed this for trial in one month.  I'm going to take Nascar's advice, however, I still have one challenge. This court has "issues" and is not very pro se friendly - and I'd like the voice mail record to be ironclad. Any suggestions on how to legally memorialize it as evidence, beyond walking into court with my cell phone?

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It sounds to me like you have a breach of contract case if they fail to keep their end of the agreement.  I also believe that your recorded voicemail should be good enough for evidence with your testimony/affidavit concerning the voicemail and the phone number it came from, etc.

 

If you cannot get it resolved within the current lawsuit you can always file a separate lawsuit for breach of contract.  If you were to win on breach of contract they could be liable for any additional expenses incurred by you after the breach by them breaching the contract, and in my opinion this would even include any potential judgment they might win in the current case.  If they refuse to settle you could inform them of this and use it as leverage to try to force the settlement agreement with them.  They should know at this point your capabilities maneuvering through the legal system.

 

From the experience you have gained fighting this lawsuit and any others you could probably fairly easily do the research and file suit for your breach of contract claims, if needed.  I came close to filing a breach of contract lawsuit for an online sale/trade of goods that the other side backed out of after we had reached agreement on the terms of the trade.  I had the complaint ready to go but decided to let it go.  If Florida has any consumer protection statutes there may be some laws in there that could be added in also.  Ohio has a law that I was going to be able to use in my specific situation that would have allowed for treble damages.

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I have a time crunch here. The Judge has noticed this for trial in one month.  I'm going to take Nascar's advice, however, I still have one challenge. This court has "issues" and is not very pro se friendly - and I'd like the voice mail record to be ironclad. Any suggestions on how to legally memorialize it as evidence, beyond walking into court with my cell phone?

 

Someone can correct me if I am wrong but I believe you could make a digital copy on CD (can hold your phone to your computer and record the message), then use the CD as an Exhibit attached to Motion to Compel them to Comply.  You would need to write an affidavit testifying to everything about the voicemail:  who it came from, phone number it came from, that it came to your voicemail, that the CD is an exact recording, etc.  You may want to transcribe it as a quote in your motion also.

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Transcribe the phone message, or have a transciptionist do it,   Then you or them do an affidavit that it is a true and correct copy/transcription of the phone message, and that you have it saved on your phone for the judge to listen to.

 

I have no idea whether it's binding, as per Bruno's post, but as far as introducing it into court if you want to, that's my 2cents.

 

 

 

I'm not sure why you would subpoena your phone company....?

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I disagree with you ClydesMom.  First, rules for criminal courts and civil are very different. Second, oral contracts are binding if they can be proven. I can prove both their offer and my acceptance. 

Offer and YOUR acceptance, did they state that they agreed to it.

 

Invitation to treat

An invitation to treat is a mere declaration of willingness to enter into negotiations; it is not an offer, and cannot be accepted so as to form a binding contract. An agreement is not created if there is an acceptance of the invitation to treat.

An invitation to treat is part of the preliminaries of negotiation, whereas an offer is legally binding once accepted, subject to compliance with the terms of the offer.

 

They will claim they were just seeing if you may be willing to negotiate.

 

Can you prove all four elements of a contract? You will have to in order to prove a contract exists,

1) An offer; One of the parties made a promise to do or refrain from doing some specified action in the future.

2) Consideration - Something of value was promised in exchange for the specified action or non action. This can take the form of a significant expenditure of money or effort, a promise to perform some service, an agreement not to do something, or reliance on the promise. Consideration is the value that induces the parties to enter into the contract.

3) Acceptance - The offer was accepted unambiguously. Acceptance may be expressed through words, deeds or performance as called for in the contract. Generally, the acceptance must mirror the terms of the offer. If not, the acceptance is viewed as a rejection and counteroffer.

4) Mutuality - The contracting parties had “a meeting of the minds” regarding the agreement. This means the parties understood and agreed to the basic substance and terms of the contract.

 

While verbal contract are valid contracts, and courts accept them as such, it is often hard to prove what the extent of the contract is. You have a recording of an offer, you have consideration as expressed in the voice mail, You do not completely have acceptance, you have proof you would accept the offer but you did not state you have proof they accepted the offer. An offer can be removed before it is accepted by both parties, it is part of the invitation to treat. You do not have 100% mutuality, you have some mutuality but you cannot prove they accepted the offer.

 

I am not trying to beat you up, just trying let you know what the court will want in order to prove you have a binding contract. If the shear offer of an invitation to enter into a contract was enough to form a legal contract there would be so many breach of contract suits there would have to be a special court that does nothing but issues on breach of contract. The shear offer of a contract is not binding until both sides agree. This is the part you will have to prove.

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All you have to do to use the voice mail is offer it as evidence, you then ask the plaintiff if that was his voice on the phone. It will be up to the judge to decide if it can be entered as evidence. You will need to research case law from your state that says voice mail can be used as evidence.

 

It has been determined that voice mail recordings are "discoverable" in the legal sense. This means it is not shielded completely from use in court cases. According to federal law - "Discovery of Electronic Data includes writings, drawings, graphs, charts, photos, sound recordings, images, data or data compilations stored in any medium that can be translated into a reasonably useable form including emails, cell photos and PDAs, instant messages, voice mail." (FRCP 34(a)).

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Hi BTO429, thanks for your valuable insight, I appreciate it!  

 

I may have not clearly communicated this point - I did indeed accept their offer, in writing. I was accepting their offer, with no counter offer. Why would they need to accept my offer (which was not a counter offer), when we already had a meeting of the minds? To be clear, I was accepting their settlement offer, they were not accepting mine.

 

An invitation to treat at this point provides an opportunity for them to wiggle off the hook, especially for attorneys who have been acting in bad faith for a very long time now. This is not an ethical group.

 

Yes, I believe I can prove all four points. Their offer stated their client's authority, the parties, what they intended to do (or not to do), and the essential terms. I accepted in writing unambiguously and my acceptance letter quoted and mirrored their offer.

 

I understand an offer can be withdrawn before it was accepted. However, it was accepted and they have not withdrawn the offer, they are just being uncooperative.

 

Great thoughts PC1978 and Learnin. I think I'll hire a Court reporter to transcribe it, prepare an Affidavit and look for a notary.

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All you have to do to use the voice mail is offer it as evidence, you then ask the plaintiff if that was his voice on the phone. It will be up to the judge to decide if it can be entered as evidence. 

 

I agree with BTO on this. The original voice mail itself is the "best evidence" of the offer conveyed to you by counsel. By attempting to memorialize the recording in some other media, you expose yourself to admissibility issues.

 

 

 

Fla. Stat. 90.952 Requirement of originals.Except as otherwise provided by statute, an original writing, recording, or photograph is required in order to prove the contents of the writing, recording, or photograph.

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I would follow Nascar and Bruno.  Send an email instead of a call so there is an evidence trail. If they do not respond or try to back peddle, file a MTC in the court.  They made an offer and you accepted it.  They would have to rescind the offer and inform you BEFORE you accepted it by letter. 

 

As long as you are not attempting to change any elements of the settlement offer, it is a settlement agreement at this point, and I would fight in court against anything else.

 

If settlements could be rescinded after acceptance, you would have attorney's doing this all the time just to test the waters to see what the opposing side would and would not accept.

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I agree with BTO on this. The original voice mail itself is the "best evidence" of the offer conveyed to you by counsel. By attempting to memorialize the recording in some other media, you expose yourself to admissibility issues.

 

Thanks Nascar. So just to get this straight, you don't think I should add a transcription and my own Affidavit to the Motion?  Keep in mind, this is what I expect. The attorney who made the offer won't appear in court, his partner will, who will disavow knowledge of the voice mail offer and agreement. Or are you suggesting add the transcription and Affidavit, but simply don't convert the voice mail to another form?

 

I was thinking to add the transcription, my Affidavit, and a simple statement in the Motion such as: "The original voice mail will be made available for the Court's review at Hearing." Then just bring in my blackberry...

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If settlements could be rescinded after acceptance, you would have attorney's doing this all the time just to test the waters to see what the opposing side would and would not accept.

 

Thanks for the feedback iHeart. My concern here is due to exactly what you described. This law firm previously made an offer (about 18 months ago), then rescinded it 24 hours later when I called to accept it. Granted in that instance I had not yet accepted the offer, however, they were testing to see what I might accept, not negotiating in good faith. I don't wan't to give them a second chance to play this creepy game.

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I just realized I'm going to have a technical issue here. At the last Hearing, the Judge offered several trial dates and asked us to check our schedules. Both Plaintiff's attorney and I called our office from the courtroom to check our schedules. I could not get any reception from the courtroom. I'm going to have to convert this to another form, at a minimum as a backup.

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