Thursday, December 8, 2016

A Unique Motion to Enforce Settlement

I ran across an interesting pleading recently. It was a Motion to Enforce settlement. That in itself is not that uncommon; many motions to enforce have been filed over the years. But this one was interesting. Interesting to the extent of being unique in my experience.

This was actually the second Motion to Enforce filed in this particular case. An initial motion to enforce was filed by the employer/carrier (E/C), seeking an order from the judge concluding that settlement had been achieved. This motion asserted that there was a meeting of the minds, that settlement documentation had been forwarded to the injured worker's attorney, but that the worker had declined to sign those documents. 

As an aside, a recent appellate decision Soto v. C-Worthy Corp, 1D16-1968 provides some interesting discussion of "meeting of the minds," agreement, and the drafting of settlement documents. Analysis of Soto suggests some "best practices" that might avoid similar misunderstandings. But, that is a post for another day however. 

This E/C motion to enforce cited some appellate decisions, including Bonagura v. Home Depot, 991 So.2d 902, 904 (Fla. 1'' DCA 2008)("Settlement agreements are highly favored and must be enforced wherever possible"); Ferreira v. Home Depot, 12 So.3d 866 (Fla. 1'' DCA 2009); Jacobsen v. Ross Stores, 882 So.2d 431,433 (Fla. 1st DCA 2004); Calderon v. J.B. Nurseries, Inc., 933 So. 2d 553 (Fla. 1st DCA 2006); Gudino v. Oasis Outsourcing, 931 So. 2d 253 (Fla. 1st DCA 2006). These are educational analysis for anyone seeking better understanding of settlements in Florida workers' compensation. Several months after the E/C filed its motion, however, the E/C filed another pleading withdrawing it.

In the interim, the injured workers hired a new attorney. The new attorney filed a petition(s) raising some claims and issues for adjudication. Again, not an uncommon occurrence. Often when new counsel is hired she or he will see issues that have been overlooked or eschewed by former counsel. 

What is interesting, however, is that in this instance is the second Motion to Enforce. Following the E/C withdrawal of its motion, this second motion was filed by the injured workers' former attorney. This second motion alleged that the parties signed an agreement and confirmed the terms of a settlement, and cited the same appellate decisions previously cited by the employer/carrier motion (above). Thus, an injured worker who is seeking benefits with the assistance of one attorney is put in the position of also defending her/himself against a Motion to Enforce settlement filed by her/his own former attorney. That is unique. 

The Judge of Compensation Claims (JCC) dismissed this Motion to Enforce, on the conclusion that claimant's former counsel lacked standing to seek an order. The Judge noted that "it is alleged the parties attended a mediation conference," "and reportedly reached a settlement." The Judge questioned how "the former attorney for the claimant, has any right or standing to try to compel her former client to accept the terms and conditions of the settlement that he disputes." 

The JCC ultimately concluded that claimant's former attorney lacked standing to seek enforcement, citing Brereton v. Clewiston Drainage District, 490 So.2d 1075 (Fla. 4th DCA 1986)(“The issue presented on appeal is whether the attorney for a party has standing to seek confirmation and enforcement of a settlement against the express wishes of his client. We think he clearly does not.” The former attorney was not satisfied with the JCC's decision and sought the intervention of the appellate court. A Petition for Writ was filed by the former counsel, seeking to have the First District Court of Appeal conclude that former counsel has standing, and to order the JCC to decide former counsel's Motion to Enforce. 

The petition acknowledged that claimant had hired new counsel, and that the employer/carrier had withdrawn its motion to enforce. However, it argued that former counsel's Motion to Enforce, "is in the best interest of all parties as the delay is causing irreparable harm." That is former counsel was asserting that counsel knew the workers' interests better than the worker did. The proceedings before the JCC were described, along with the reliance on Brereton. Claimant's former counsel suggested some distinctions in the facts of Brereton ("a non workers compensation case."), and asserted that the JCC's finding that counsel lacked standing was "a departure from the essential requirements of law." 

Counsel's petition argued that the employer/carrier's previously filed and withdrawn Motion to Enforce was "proof via the docket that the E/C agree with lienholder (former counsel) that the settlement is binding." (apparently arguing that one cannot change one's mind about something once a pleading is filed). Claimant's former counsel asserted that if this second Motion to Enforce was not granted, then counsel "would receive less fees due to additional Petitions for Benefits being filed after the binding settlement." Counsel asserted that "if the JCC refuses to hear and enforce the settlement agreement then the new attorney will be able to participate in E/C hourly fees" that former counsel "was to receive alone," resulting "in material harm to" former counsel. 

Counsel raised three "public policy" arguments in support of finding standing and enforcing the mediation agreement. First, that to "allow claimant to fire his attorney in order to avoid a settlement is against public policy." Second, that to "allow E/C to defend payment of a claim based on the fact that a binding settlement has been reached and rely on the mediation settlement agreement at bar but not join in or ask immediately for the JCC to hold a hearing also is against public policy." And, finally, that to "have a filing which is presumed binding and in (upon?) which OJCC relied on to dismiss the entire judicial calendar and dismiss all pending claims is against public policy." 

All three "public policy" arguments are interesting. The point of the Petition (appeal), however, is simply a question of whether the former counsel has standing to file the motion and seek a decision from the JCC. In that context, the "public policy" arguments might be seen as likely to fail. Standing is not about how wonderful the substantive arguments might be. Standing is about whether a person or company making those arguments has a sufficient interest in the case, such that he/she/it is recognized by the adjudication system as an appropriate party. Here, the JCC decided former counsel did not have that standing. Standing to advocate a position to counsel's advantage and against the interest of counsel's former client. 

Former counsel asked that the "First DCA reverses with instruction for JCC to set the Motion to Enforce and determine if the mediation settlement agreement is enforceable." But, in October 2016, the Court denied the petition for writ without explanation. And thus, the JCC decision stands. In this instance, a former attorney is not allowed to seek enforcement, thus to force a former client to do something with which the client disagrees. 

The procedural process of this particular Motion to Enforce was interesting, and certainly rare. It is possible that it is unique in workers' compensation, although Brereton proves that it has happened at least once before in some other setting. What is equally interesting are the ethical implications of a former attorney's adversarial posture in relation to a former client. 

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