COHEN v. COHEN (2020)

Lewis R. Cohen (“Lewis”) and Roni Liberman (collectively, “the Plaintiffs”) appeal from a non-final order enforcing the terms of a mediated settlement agreement entered into between the Plaintiffs and Jeffrey M. Cohen (“Jeffrey”), individually, et al. (collectively, “Defendants”), relating to two separate lawsuits. We affirm.¹

Lewis, Roni, and Jeffrey are siblings who equally own two commercial properties as tenants in common, which properties are referred to as the Wynwood Property and the Palmetto Expressway Property. The parties entered into a mediated confidential settlement agreement relating to the two separate lawsuits.² The settlement agreement provides, among other things, that a brokerage agreement to sell both properties will be entered into with a specific broker within ten days for the listing of the properties. The listing agreements for the properties will be for a period of nine months, and if the properties are not sold within that time period, a new listing agreement for a second nine-month period will be entered into with Jeffrey acting as the listing agent. As to each property, the settlement agreement sets forth the listing price and further provides that “any contract for [a specific minimum price] or more, which does not require seller's financing, will be acceptable and will be approved by all parties.” (emphasis added). Further, Jeffrey or his entity, Real Estate Enterprises, Inc., will be treated as the buyer's broker for any contract that complies with the settlement agreement and originates from any of Jeffrey's clients. Further, the total commission will be 6% and the buyer's broker will be entitled to half of the commission (3%). Finally, the settlement agreement provides that the agreement does not constitute a waiver of any claims and any defenses involved in the two cases.

Upon the parties' joint motion, the trial court entered an agreed order approving the settlement agreement. Immediately thereafter, Jeffrey tendered a contract for the Palmetto Expressway Property, offering the minimum price set forth in the settlement agreement with a 3% commission to Real Estate Enterprises, Inc. The Plaintiffs refused to execute the contract.

The Defendants filed a revised motion to enforce the mediated settlement agreement, arguing that he had tendered a contract to purchase the Palmetto Expressway Property at the minimum price with terms that must be accepted by the parties pursuant to the mediated settlement agreement. The Defendants asserted that based on the unambiguous language set forth in the settlement agreement, which requires the parties to approve “any contract” for the minimum price that does not require seller financing, the Plaintiffs are required to execute the contract tendered by Jeffrey.

The Plaintiffs filed a response to the Defendants' revised motion to enforce the settlement agreement, asserting that the Defendants' interpretation of the settlement agreement is contrary to the intent of the parties and, if the Defendants' interpretation is adopted, portions of the settlement agreement would be rendered meaningless. As such, the conflicting interpretations of the parties renders those portions of the settlement agreement ambiguous, and an evidentiary hearing is needed to determine the parties' intent. The Plaintiffs requested that the trial court order the Defendants to enter into a brokerage agreement, as required by the mediated settlement agreement, and to nullify the contract tendered by Jeffrey.

The trial conducted a non-evidentiary hearing. At the hearing, the Plaintiffs argued, in part, that the settlement agreement provides that a brokerage agreement must be entered into, and that the purpose of entering into such an agreement is to provide the broker with nine months to obtain the highest and best price, and that the contract does not contemplate that “an insider” could offer the minimum price. In response, the Defendants argued that if the trial court orders the parties to enter in the brokerage agreement, he will once again immediately submit a minimum price contract.

At the conclusion of the hearing, the trial court ruled that the settlement agreement requires that a brokerage agreement had to be entered into, which had not occurred, and therefore, Jeffrey prematurely tendered his contract. As such, the trial court ruled that the parties must enter into a brokerage agreement within ten days of the hearing, and thereafter, the parties must accept “any contract” that offers the minimum price, as set forth in the settlement agreement. The trial court entered an order that granted, in part, and denied, in part, the Defendants' revised motion to enforce the settlement agreement, as set forth in the hearing transcript.³ The Plaintiffs' non-final appeal followed.

The Plaintiffs contend that the trial court erred by determining that the settlement agreement is not ambiguous. Based on our de novo review of the settlement agreement, we disagree.

The fact that the Plaintiffs and the Defendants have ascribed different meanings to the language in the mediated settlement agreement does not necessarily mean that the agreement is ambiguous, thereby allowing the admission of extrinsic evidence. See Kipp v. Kipp, 844 So. 2d 691, 693 (Fla. 4th DCA 2003). Contrary to the Plaintiffs' assertion, the settlement agreement can only be interpreted in one way—after the brokerage agreements are entered into for a listing of the properties, the parties are required to accept “any contract” offering the minimum price that does not require seller's financing. The words “any contract” simply means “any contract.” These words do not have an uncertain meaning even in light of the requirement that brokerage agreements must be entered into for the listing of the properties. The mediated settlement agreement could have limited, but did not limit, the words “any contract” to only contracts tendered by non-parties, and we decline to read such a limitation into the clear and unambiguous settlement agreement. Accordingly, we affirm the portion of the non-final order relating to the enforcement of the mediated settlement agreement.

Affirmed, in part; dismissed, in part.

FOOTNOTES

1.   We have jurisdiction. See Fla. R. App. P. 9.120(a)(3)(C)(ii); Hobus v. Crandall, 972 So. 2d 867 (Fla. 2d DCA 2007); Shephard v. Ouellete, 854 So. 2d 251 (Fla. 5th DCA 2003). The non-final order under review also denies the Plaintiffs' motion to reform the mediated settlement agreement. The Plaintiffs moved to reform the settlement agreement, alleging that two provisions were inadvertently left out of the mediated settlement agreement. The Plaintiffs requested an evidentiary hearing, asserting that the mediator would testify that the parties agreed to those two provisions, but the provisions were inadvertently left out. Without conducting an evidentiary hearing, the trial court denied the motion to reform. We lack jurisdiction to review this portion of the non-final order. We take no position as to the arguments raised by the Plaintiffs as to this issue.

2.   The mediated settlement agreement did not completely dispose of either case. The second lawsuit pertained to a promissory note executed by Lewis in favor of his mother, Ms. Sterling, which was later assigned to Jeffrey, and then assigned to an entity wholly owned by Jeffrey. The settlement agreement provides that the loan would be reassigned to Ms. Sterling, and Lewis will repay the loan from the proceeds available to him from the sale of the Palmetto Expressway Property or at the termination of the second nine-month listing agreement, whichever occurs first.

3.   As set forth in footnote one, the non-final order under review also denies the Plaintiffs' motion to reform the mediated settlement agreement. We, however, lack jurisdiction to review that portion of the non-final order.

HENDON, J.