Town of Jupiter v. Sally Armes

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
TOWN OF JUPITER,
Appellant,
v.
SALLY ARMES,
Appellee.
No. 4D2024-3058
[March 25, 2026]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach 	County; 	Maxine 	D. 	Cheesman, 	Judge; 	L.T. 	Case 	No.
502022CA008712XXXXMB.
Lyman Hawley Reynolds, Jr., Katherine Eileen Herald, and George
Preston Roberts, Jr. of Roberts Reynolds Bedard & Tuzzio, PLLC, West
Palm Beach, for appellant.
Kali 	Lauren 	Wechsler 	of 	Zinober 	Diana 	& 	Monteverde, 	P.A., 	Fort
Lauderdale, for appellee.
C ONNER , J.
The defendant in this personal injury suit appeals from the trial court’s
denial of the defendant’s attorneys’ fees motion based on the defendant’s
proposal for settlement. 	We reverse the denial because the defendant’s
proposal for settlement did not contain ambiguous terms or create an
impossible 	condition 	that 	thwarted 	the 	plaintiff’s 	ability 	to 	properly
evaluate 	the 	proposal. 	Thus, 	we 	remand 	for 	further 	proceedings
consistent with this opinion.
Background
The 	plaintiff 	filed 	a 	complaint 	alleging 	personal 	injuries 	from 	an
accident allegedly caused by a door on the defendant’s property. 	Prior to
trial, the defendant made a proposal for settlement (“PFS”), which the
plaintiff did not accept. 	The case proceeded to a jury trial, resulting in a
verdict for the defendant, finding no negligence.

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After 	a 	final 	judgment 	was 	entered 	in 	the 	defendant’s 	favor, 	the
defendant moved for attorneys’ fees pursuant to the PFS under section
768.79, Florida Statutes (2022), and Florida Rule of Civil Procedure 1.442.
The PFS stated: (1) it was made pursuant to section 768.79 and rule 1.442;
(2) it was made by the defendant to the plaintiff with the intention of
settling all claims against the defendant as a result of the accident suffered
on the specific date the plaintiff was injured on the defendant’s property;
(3) its total amount offered was $500; (4) its amount was for compensatory
damages and was not for punitive damages or attorneys’ fees; and (5) if the
PFS was accepted, the plaintiff would voluntarily dismiss all claims with
prejudice.
At issue in this appeal is the PFS’s paragraph 7:
If this proposal for settlement is accepted, it is contemplated
that 	PGCS 	CLAIM 	SERVICES 	shall 	pay 	FIVE 	HUNDRED
DOLLARS AND ZERO CENTS ($500.00) on behalf of [the
defendant].
The plaintiff’s response to the defendant’s fees motion contended the
defendant’s PFS was ambiguous in that the PFS “contemplated” payment
and did not provide a definitive resolution. 	Additionally, the plaintiff
argued paragraph 7 was ambiguous because it states that PGCS Claim
Services (“PGCS”) would pay the plaintiff. The plaintiff contended that the
trial court would have no jurisdiction over PGCS to enforce the agreement
as PGCS was not a party to the action.
The defendant replied that the PFS was a valid settlement proposal,
and the proposal’s terms were sufficiently clear and definite to allow the
plaintiff 	to 	make 	an 	informed 	decision. 	Additionally, 	the 	defendant
contended the plaintiff could not argue that the inclusion of contemplated
payment by PGCS, the claims agent for the defendant’s insurer, would
reasonably affect the plaintiff’s ability to make an informed decision. 	The
defendant attached to its reply a claim letter which PGCS had sent to the
plaintiff’s attorney prior to suit and three certifications of PGCS’s authority
to act on behalf of the defendant’s insurer.
At the fees hearing, the trial court was concerned whether naming a
non-party insurer created an ambiguous term in a PFS. 	At the close of
the hearing, the trial court directed the parties to provide case law on that
point.
The trial court later summarily denied the defendant’s motion for
entitlement 	to 	attorneys’ 	fees. 	The 	defendant 	moved 	for 	rehearing,

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specifically arguing a party’s insurer is considered a de facto party for
settlement purposes and citing case law allowing the insurer to recover
fees and costs on behalf of the insured, even when the insurer was not a
named party in the suit. 	The trial court denied the motion for rehearing
and the defendant gave notice of appeal.
Appellate Analysis
The Parties’ Arguments on Appeal
The defendant argues that the trial court erred in denying its attorneys’
fees motion because the PFS (1) complied with the statutes and rules;
(2) 	did 	not 	include 	ambiguous 	terms; 	and 	(3) 	did 	not 	include 	any
impossible 	condition 	for 	the 	plaintiff 	to 	perform. 	Specifically, 	the
defendant argues that section 768.79 and rule 1.442 do not require the
offeror to name the entity who will be making the payment or preclude the
offeror 	from 	naming 	the 	entity 	making 	payment. 	Additionally, 	the
defendant 	argues 	that 	(1) 	the 	PFS 	contains 	no 	nonmonetary 	terms;
(2) paragraph 7’s provisions using the term “contemplated” and stating
that the insurer would pay the settlement amount were not ambiguous
terms that could affect the plaintiff’s decision whether to accept; and
(3) designating payment by the insurer did not create an impossible
condition.
The plaintiff responds that the PFS’s reference to PGCS paying the
settlement 	amount 	was 	a 	nonmonetary 	term 	which 	rule 	1.442(c)(2)
prohibited. Additionally, the plaintiff contends that including PGCS as the
payor was ambiguous and an impossible condition because it was not
clear whether the trial court would be able to enforce PGCS’s payment.
The 	defendant 	replies 	that 	the 	plaintiff’s 	argument 	that 	the 	PFS
payment term is ambiguous should be rejected as speculative. 	The
defendant further argues that speculation that a PFS term may not be
complied with does not mean the PFS is ambiguous. 	Additionally, the
defendant argues that the plaintiff has failed to show how the payment
term has two meanings and thus fails to meet the definition of ambiguous.
Applying the Law to the Facts
“We have de novo review of orders concerning section 768.79 and
Florida Rule of Civil Procedure 1.442.” Lyons v. Chamoun, 96 So. 3d 456,
457 (Fla. 4th DCA 2012) (citing Papouras v. Bellsouth Telecomms., Inc., 940
So. 2d 479, 480 (Fla. 4th DCA 2006)). 	Matters of statutory construction

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are also reviewed de novo. 	See Diamond Aircraft Indus., Inc. v. Horowitch,
107 So. 3d 362, 372 (Fla. 2013).
A party can recover reasonable attorneys’ fees and costs under section
768.79 and rule 1.442, if (1) the offeree fails to accept the PFS within thirty
days; and (2) the offeree ultimately obtains a judgment that is at least 25%
less than the PFS amount. 	§ 768.79(6)(a), Fla. Stat. (2022).1 	“The PFS
must also strictly comply with the requirements of section 768.79(2) and
rule 1.442(c)(2).” United Cab of Broward, LLC v. Muller, 397 So. 3d 80, 84
(Fla. 4th DCA 2024) (citing Pratt v. Weiss, 161 So. 3d 1268, 1273 (Fla.
2015)).
We address the parties’ appellate arguments using three headings:
A. Compliance with Statutory and Rule Language;
B. Ambiguity of a Required Term; and
C. The Existence of an Impossible Condition.
A. Compliance with Statutory and Rule Language
Section 768.79(2), Florida Statutes (2022), provides that a PFS must:
(a) 	Be in writing and state it is made [under section 768.79].
(b) 	Name the party making [the PFS] and the party to whom
it is being made.
(c) 	State with particularity the amount offered to settle a
claim for punitive damages, if any.
(d) 	State its total amount.
§ 768.79(2)(a)-(d), Fla. Stat. (2022). 	Additionally, by rule, the PFS must:
(C) exclude 	nonmonetary 	terms, 	with 	the 	exceptions 	of 	a
voluntary dismissal of all claims with prejudice and any other
nonmonetary terms permitted by statute;
. . .
(F) 	state whether the proposal includes attorneys’ fees and
whether attorneys’ fees are part of the legal claim; and
(G) include a certificate of service[.]
1 Section 768.79’s operative version here was effective from July 1, 1997, to
December 15, 2022. See Stevens v. Fla. Peninsula Ins. Co., 423 So. 3d 459, 461
(Fla. 2d DCA 2025) (determining that the PFS was served and rejected in 2020,
and thus the July 1, 2022 rule 1.442 amendment was not applicable because the
PFS was served and rejected before the effective date of the rule change).

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Fla. R. Civ. P. 1.442(c)(2) (2022).
In addition to strict compliance with section 768.79 and rule 1.442, the
PFS “must state with particularity any relevant conditions and all non-
monetary terms.” 	Sanchez v. Cinque, 238 So. 3d 817, 826 (Fla. 4th DCA
2018) (quoting Palm Beach Polo Holdings, Inc. v. Village of Wellington, 904
So 2d 652, 653 (Fla. 4th DCA 2005)). 	The PFS “must be sufficiently clear
and free of ambiguity to allow the offeree the opportunity to fully consider
the proposal.” 	Allen v. Nunez, 258 So. 3d 1207, 1211 (Fla. 2018) (citing
State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla.
2006)).
The appellate dispute in this case regarding compliance with statutory
and rule language focuses on the rule provision that a PFS is to exclude
nonmonetary terms, except for a voluntary dismissal of all claims with
prejudice and other nonmonetary terms permitted by statute. Specifically,
the 	issue 	is 	whether 	the 	provision 	stating 	that 	PGCS 	will 	pay 	the
settlement amount is a permitted nonmonetary term.
The plaintiff admits that “nonmonetary term” is not defined in section
768.79 or rule 1.442. 	Black’s Law Dictionary does not define the term.
Our research has not revealed a Florida case defining the term.
The 	plaintiff 	contends 	“nonmonetary 	term” 	is 	“generally 	one 	that
creates a contingency on payment, such as dismissal of a lawsuit or
execution of a release,” citing Lyons, 96 So. 3d at 457-58. While we agree
that Lyons stands for the proposition that a settlement term requiring
dismissal of a lawsuit or execution of a release prior to payment of the
settlement sum is a nonmonetary term of a settlement agreement, we do
not 	read 	Lyons 	to 	mean 	nonmonetary 	terms 	necessarily 	create 	a
“contingency on payment.” 	It depends on the PFS’s wording.
Merriam-Webster Dictionary defines “monetary” as “of or relating to
money or the mechanisms by which it is supplied to and circulates in the
economy.” 	Monetary, 	MERRIAM -WEBSTER , 	https://www.merriam-
webster.com/dictionary/monetary (last visited Mar. 2, 2026). 	According
to Merriam-Webster Dictionary, “nonmonetary” means “not of or relating
to 	money.” 	Nonmonetary, 	MERRIAM -W EBSTER , 	https://www.merriam-
webster.com/dictionary/nonmonetary (last visited Mar. 2, 2026). 	Thus,
in terms of the ordinary meaning of “monetary” and “nonmonetary,” we
construe a provision of a PFS identifying who will pay a settlement sum as
a monetary term, rather than a nonmonetary term.

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Additionally, we note that the defendant’s obligation to pay money is
not 	contingent 	on 	anything 	other 	than 	the 	plaintiff 	accepting 	the
settlement offer. 	No PFS term requires the offeree to do anything to be
entitled to payment other than giving notice of acceptance (indicating a
contract is formed). 	Taking a step to form a contract (accepting an offer)
is not the same thing as performing a term after the contract is formed.
Simply 	put, 	designating 	who 	will 	pay 	the 	settlement 	sum 	is 	not 	a
“contingency on payment.”
Thus, if the trial court denied awarding fees based on paragraph 7
creating an unpermitted nonmonetary term, the trial court erred.
B. Ambiguity of a Required Term
The defendant argues that the PFS does not include ambiguous terms
that could reasonably have affected the plaintiff’s decision whether to
accept the PFS. The plaintiff argues that two terms within paragraph 7 of
the 	PFS, 	“contemplated” 	and 	“PGCS 	Claim 	Services 	shall 	pay . . . on
behalf,” are ambiguous.
Ambiguity is “the condition of admitting more than one meaning.”
Saenz v. Campos, 967 So. 2d 1114, 1117 (Fla. 4th DCA 2007) (quoting The
Random 	House 	College 	Dictionary 	42 	(revised 	ed. 	1980)). 	A 	latent
ambiguity arises “where the language employed is clear and intelligible
and suggests but a single meaning, but some extrinsic fact or extraneous
evidence creates a necessity for interpretation or a choice among two or
more possible meanings.” 	Saenz, 967 So. 2d at 1117 (quoting Mac-Gray
Servs., Inc. v. Savannah Assocs. of Sarasota, LLC., 915 So. 2d 657, 659
(Fla. 2d DCA 2005)).
The 	plaintiff 	contends 	the 	PFS 	contained 	a 	latent 	ambiguity 	by
including PGCS as the payor because PGCS was not the PFS’s offeror, and
nothing in the PFS showed that PGCS had agreed to or was obligated to
pay. 	The defendant replies that the plaintiff does not point out a second
meaning created by PGCS’s inclusion as payor.
The Third District’s Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., 176
So. 3d 305 (Fla. 3d DCA 2015) is instructive. 	There, Michele K. Feinzig,
P.A., 	and 	Joanne Rose 	Telischi, 	P.A., both 	single-member 	law 	firms,
entered into an oral agreement with Deehl & Carlson, P.A., a law firm with
two shareholders, to provide trial support and appellate services in a
personal injury suit. Id. at 306. When Deehl & Carlson refused to pay the
support services fees, the Feinzig and Telischi firms jointly sued Deehl &
Carlson 	Id. 	Before trial, the Feinzig and Telischi firms separately served

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a PFS on Deehl & Carlson. 	Id. at 307. 	Both PFSs were not accepted. 	Id.
After prevailing in the fees suit, the Feinzig and Telischi firms filed motions
for fees based on the PFSs. 	Id. at 308.
Deehl & Carlson contested the fees motion because the mutual release
attached 	to 	each 	PFS 	named 	Feinzig, 	Telischi, 	Deehl, 	and 	Carlson,
individually, 	as 	giving 	the 	release, 	rather 	than 	the 	professional
associations. 	Id. 	Deehl & Carlson contended naming the four individual
attorneys as giving the releases conflicted with the named offerors and
offerees 	in 	the 	PFS, 	the 	firms, 	creating 	ambiguity 	within 	the 	PFS
documents. 	Id. 	The trial court agreed with the ambiguity argument and
denied the fees motions. 	Id.
The Third District reversed the denial of PFS fees to the Feinzig and
Telischi firms, citing its prior decision in Jessla Construction Corp. v.
Miami–Dade County School Board, 48 So. 3d 127 (Fla. 3d DCA 2010), as
controlling. 	Feinzig, 176 So. 3d at 309. 	In Jessla, the Third District
reasoned that PFSs requiring mutual releases are a common practice and
held that a PFS “conditioned upon the execution of a standard release
identifying 	typical 	affiliates 	of 	a 	party 	does 	not 	create 	an 	ambiguity
rendering the proposal for settlement unenforceable.” Feinzig, 176 So. 3d
at 309 (citing Jessla, 48 So. 3d at 130). 	Likewise, the Third District held
in Feinzig that the inclusion of the employees and stockholders of the
respective firms in the mutual release did not render the PFS ambiguous.
Id. at 310.
The PFS must be read as a whole and “is not ambiguous unless a
genuine inconsistency, uncertainty, or ambiguity in meaning remains after
resorting to the ordinary rules of construction.” 	Alamo Financing L.P. v.
Mazoff, 112 So. 3d 626, 630 (Fla. 4th DCA 2013). 	“The intention of the
parties must be determined from an examination of the entire contract and
not from separate phrases or paragraphs.” Id. (quoting Moore v. State Farm
Mut. Auto. Ins. Co., 916 So. 2d 871, 875 (Fla. 2d DCA 2005). 	A court can
only invalidate a PFS for “reasonable ambiguities,” and courts should not
nitpick the proposal for inconsequential ambiguities. 	Diecidue v. Lewis,
223 So. 3d 1015, 1018 (Fla. 2d DCA 2017) (citing Anderson v. Hilton Hotels
Corp., 202 So. 3d 846, 852-53 (Fla. 2016)).
Here, reading the PFS as a whole makes clear that the agreement was
between the defendant and the plaintiff. It is also clear that the defendant
was offering $500 as a settlement amount, and that the plaintiff would
receive the settlement amount if she accepted the PFS. 	The fact that
payment would go through the defendant’s insurer does not create an
ambiguity that could reasonably affect her decision to accept the proposal.

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We agree with the defendant’s argument that no authority states a PFS
requires a party to make the payment rather than a party’s insurer. 	As
the defendant argues, Florida law allows insurers to be involved in the
defense of claims and payments of settlements. 	In tort litigation, an
insurer 	often 	controls 	the 	defense, 	pays 	litigation 	costs, 	and 	pays
settlements and judgments. 	Section 627.4136(4), Florida Statutes (2022)
allows joinder of the insurer solely “for purposes of . . . enforcing the
settlement[.]” 	§ 627.4136(4), Fla. Stat. (2022). 	Finally, as the defendant
argues, if the PFS was accepted, a binding contract would exist between
the plaintiff and the defendant, and the plaintiff would be able to enforce
payment from the defendant irrespective of the PFS stating PGCS would
make payment. Thus, we reject the plaintiff’s argument that naming PGCS
as payor of the settlement funds created an ambiguity.
We 	also 	reject 	the 	plaintiff’s 	argument 	that 	using 	the 	word
“contemplated” in the PFS rendered the PFS ambiguous when read in its
entirety. 	The PFS immediately follows “contemplated” with “shall pay.”
The rest of the PFS is unambiguous that the defendant intended $500 to
be the amount offered to pay the plaintiff for a voluntary dismissal of the
case. Therefore, when the PFS is read as a whole, the term “contemplated”
does not render the PFS ambiguous.
Thus, if the trial court denied the defendant’s fees motion based on
paragraph 7 creating ambiguous terms, the trial court erred.
C. The Existence of an Impossible Condition
The plaintiff argues that paragraph 7’s reference to PGCS paying on the
defendant’s behalf created an impossible condition precluding the plaintiff
from being able to properly evaluate the PFS. 	More specifically, the
plaintiff argues that because PGCS was not the PFS’s offeror, and because
nothing in the PFS showed that PGCS was obligated or agreed to pay, it
was impossible for her to know that she would be paid if she dismissed
the suit. 	The plaintiff also contends that because the defendant was not
explicitly required to make payment, the defendant had no reason to
uphold its side of the bargain.
However, as stated above, once the plaintiff accepted the PFS, the $500
payment by or on behalf of the defendant would have been binding.
Payment 	was 	not 	conditioned 	on 	the 	plaintiff 	dismissing 	the 	suit.
Additionally, as the Second District held in Ekonomides v. Sharaka, 133
So. 3d 1174, 1175 (Fla. 2d DCA 2014), even if a plaintiff dismisses suit

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pursuant to a PFS, if the plaintiff does not receive payment as agreed after
dismissal, the trial court still has jurisdiction to enforce the settlement.
Thus, if the trial court denied the defendant’s fees motion based on
paragraph 7 creating an impossible condition, the trial court erred.
Conclusion
We 	have 	determined 	that 	the 	trial 	court 	erred 	in 	denying 	the
defendant’s attorneys’ fees motion. 	The motion was based on a proposal
for settlement that complied with section 768.79 and rule 1.442, and was
rejected by the plaintiff, followed by a jury verdict in the defendant’s favor.
We 	therefore 	reverse 	the 	denial 	and 	remand 	for 	further 	proceedings
consistent with this opinion.
Reversed and remanded for further proceedings consistent with this
opinion.
MAY and L OTT , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.