GLORIA PATRICIA SANCHEZ and BODY & SOUL RETREAT, LLC. v. JOHANA CINQUE and VONCENT CINQUE

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

GLORIA PATRICIA SANCHEZ and BODY & SOUL RETREAT, LLC, a

Florida Limited Liability Company,

Appellants,

v.

JOHANA CINQUE and VINCENT CINQUE,

Appellees.

No. 4D16-2530

[ February 14, 2018 ]

Appeal and cross-appeal from the Circuit Court for the Seventeenth

Judicial Circuit, Broward County; Michael L. Gates, Judge; L.T. Case No.

CACE-14-6027-12.

Nancy S. Paikoff of MacFarlane Ferguson & McMullen, Clearwater;

Philip J. Crowley of MacFarlane Ferguson & McMullen, Tampa; and

Michael B. Kadish of The Kadish Law Group, P.C., Santa Monica,

California, for appellants.

Kelly B. Stewart, Walter G. Campbell Jr., and Brent M. Reitman of

Krupnick Campbell Malone Buser Slama Hancock Liberman, P.A., Fort

Lauderdale, for appellees.

TAYLOR, J.

A day spa and aesthetician appeal a final judgment entered against

them for $814,694, after a jury found they were negligent in performing a

chemical peel on the plaintiff. The plaintiff alleged that the chemical peel

resulted in severe and permanent aggravation to her pre-existing skin

condition, rosacea. Appellants, the defendants below, argue that the trial

court abused its discretion in excluding the testimony of their expert

witness. They also argue that the trial court erred in granting the plaintiffs

a directed verdict on comparative negligence and denying the defendants’

motion for remittitur. Plaintiff cross-appeals, arguing that the trial court

erred in denying her motion for attorney’s fees after finding a proposal for

settlement ambiguous. We affirm the final judgment, but reverse the

denial of attorney’s fees.

Plaintiff Johana Cinque and her husband, Vincent Cinque, sued an

aesthetician, Gloria Sanchez, and a day spa, Body & Soul Retreat, LLC, for

injuries the plaintiff sustained as a result of a chemical peel. The plaintiff

alleged that the peel permanently aggravated her rosacea, a pre-existing

skin condition. The defendants alleged the plaintiff was comparatively

negligent by failing to follow medical advice.

Testimony during trial revealed that on March 19, 2013, the plaintiff

went to Body & Soul for a facial. Before the procedure, the plaintiff

completed a form stating that she had rosacea. Rosacea is a chronic

inflammatory skin condition of the face. The plaintiff’s condition was mild,

causing only a rosy flushing of her checks.

Sanchez performed a chemical peel on the plaintiff. Sanchez admitted

she did not read the form before she performed the procedure. Had she

known the plaintiff had rosacea, she would have used a different product

or done a test sample.

During the procedure, the plaintiff felt like her face was burning.

Immediately after the procedure, her face continued to burn and turned

bright red. Her face became blistered, bruised, scabbed, and crusted, and

it oozed.

At the time of the April 2016 trial, the plaintiff’s face was bumpy and

turned red easily from various triggers, such as the sun and increase in

temperatures. The plaintiff is a firefighter paramedic, and wearing her

bunker gear also causes her face to turn red. The bumps and redness are

in the exact shape of the burn to her face. She gets flare-ups anywhere

from two times a week to every day. People often ask if she is okay because

her face is red and ask what is wrong with her face.

The plaintiff testified that before the incident, her rosacea merely gave

her cheeks a rosy appearance. She had smooth skin, received

compliments all the time, and wore makeup only on special occasions.

Two coworker friends confirmed that before the procedure, the plaintiff

had a beautiful complexion and never wore makeup. They further testified

that as a result of the procedure, the plaintiff is no longer confident and

outgoing; she has become shy and antisocial.

Dr. Peter Wallach, a dermatologist, began treating the plaintiff for

rosacea in October 2009. Her condition was mild, and after a visit the

following month, Dr. Wallach noted her condition was improving. Dr.

Wallach did not see the plaintiff again for rosacea until the day after the

chemical peel, when he examined her for facial burns. Dr. Wallach

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diagnosed the plaintiff with severe irritant contact dermatitis, which is a

condition resulting from something that contacted and irritated the skin.

A chemical peel could irritate the skin. Dr. Wallach prescribed an

antibiotic cream. During follow-up visits, the plaintiff’s face was red and

hyperpigmented, so he gave her medication to reduce the inflammation.

In May 2013, Dr. Wallach noted that the rosacea had decreased but that

some hyperpigmentation remained. Dr. Wallach wrote prescriptions for

medication and directed her to return in four weeks, but she did not.

Dr. Thomas Zaydon, a plastic surgeon, examined the plaintiff in May

2014. Dr. Zaydon observed a mixed pattern of rosacea and scarring. The

chemical peel had taken away the skin’s protective barrier, permanently

damaging and injuring the plaintiff’s face. He testified that a chemical peel

is improper for a person with rosacea because it penetrates the protective

barrier of the skin and worsens the inflammatory process. In his opinion,

the plaintiff’s injuries, scarring, and disfigurement were permanent and

she would need a lifetime of dermatological care to control the outbursts;

she could never be returned to her pre-peel clinical appearance.

Dr. Zaydon suggested that the plaintiff might benefit from laser

treatment, which would cost $4,000 to $6,000 to as much as $100,000.

She also might benefit from stem cell treatment. Such treatments cost

$5,000 each, totaling $10,000 to $15,000. A deep tissue facioplasty could

also be performed. Dr. Zaydon estimated the plaintiff’s future medical bills

would be around $20,000.

Dr. Quang Le, a dermatologist, treated the plaintiff on five occasions

from June 2013 to April 2014. Dr. Le gave her various medications to try

to reduce the redness and control her condition, but she continued to

experience redness and hyperpigmentation. Dr. Le suggested that her

condition could be improved with laser treatment.

Dr. Le opined that the exacerbation of the plaintiff’s rosacea was caused

by the chemical peel. He explained that a chemical peel on someone with

rosacea causes significant damage. The peel damaged the top and mid-

dermal area of the plaintiff’s skin and her condition went from very mild

to very difficult to control. According to Dr. Le, the redness will likely be

persistent, and it will take a lifetime of treatment for the plaintiff to

adequately manage and control her condition. Medical bills showed that

the plaintiff paid $80 or $95 for each office visit with Dr. Le. A mortality

table showed the plaintiff had a life expectancy of forty-eight more years.

On cross-examination, the plaintiff admitted she had not seen a

dermatologist in two years. She had not filled a prescription for her

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rosacea in two-and-a-half years and was not using any prescribed

medication at the time of trial. She last paid for medication in 2013 and

stopped using it in the middle of 2014, despite not having been advised by

any dermatologist to discontinue the use of medication for her rosacea.

She explained that she stopped taking her prescription medications

because they did not work and stopped regularly seeing Dr. Wallach and

Dr. Le because they only prescribed medication that did not work.

Before trial, the parties took the deposition of the defendants’ expert

dermatologist, Dr. Evan Schlam. In his deposition, Dr. Schlam testified

that he conducted an independent medical examination on the plaintiff in

January 2015, twenty-two months after the chemical peel. Dr. Schlam

also reviewed her medical records, including the records of dermatologists

Drs. Wallach and Le and the records of the plastic surgeon, Dr. Zaydon.

Dr. Schlam’s examination of the plaintiff lasted twenty minutes. The

plaintiff was on medication at the time of his examination. Dr. Schlam

noted mild red patches and mild dilation of the vessels. He diagnosed her

with mild rosacea because “there wasn’t anything pronounced” when he

performed his examination. Dr. Schlam opined that the rosacea he saw

was not caused by the chemical peel.

On cross-examination, Dr. Schlam admitted that he had not reviewed

any photos of the plaintiff before the peel. He conceded it would have been

helpful to review a photo of what she looked like before, but maintained it

was not necessary. Dr. Schlam said did not observe any scarring or

anything else that would be a concern as a long-term consequence of the

peel. He felt it was not important to review photos taken before the

procedure because the findings at the exam were so minimal that her prior

appearance did not affect his opinion.

Dr. Schlam further testified on cross-examination that he assumed the

plaintiff had a classic distribution of mild rosacea before the procedure

based on her medical records. Dr. Schlam assumed her rosacea

distribution was normal because Dr. Wallach’s records did not mention

otherwise. Dr. Schlam also assumed that a May 2010 visit to Dr. Wallach

for a cystic nodule or spot was for rosacea, even though the records for

that visit did not mention rosacea.

Before trial, the plaintiff moved in limine to exclude Dr. Schlam’s

testimony on the ground that his opinions failed to meet the admissibility

requirements under Daubert. In her motion and during the hearing, the

plaintiff argued that Dr. Schlam’s opinion as to causation lacked reliability

and an evidentiary foundation because he had no knowledge about her

appearance before the peel. She contended that Dr. Schlam relied on facts

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that lacked any evidentiary basis in forming his opinions; during his

deposition he made assumptions and guesses and stated things that were

not in the medical records. The defendants responded that the plaintiff’s

argument went to the weight of Dr. Schlam’s testimony, not to its

admissibility.

The trial court entered an order granting the motion to exclude Dr.

Schlam’s testimony. The court found that Dr. Schlam did not apply a

reliable methodology and used speculation and assumptions to arrive at

his conclusions. Specifically, Dr. Schlam claimed he was familiar with the

plaintiff’s condition before the procedure from reviewing her medical

records, but Dr. Wallach’s records did not state anything about the

distribution of plaintiff’s rosacea before the peel. Dr. Schlam assumed her

rosacea distribution was normal because Dr. Wallach’s records did not

mention otherwise. Dr. Schlam also assumed that a May 2010 visit to Dr.

Wallach for a cystic nodule or spot was for rosacea, even though the

records for that visit did not mention rosacea.

The trial court further found that Dr. Schlam failed to consider the

plaintiff’s appearance before the peel, which was necessary to determine if

the peel permanently aggravated her rosacea. Additionally, the trial court

reasoned that “[i]t is unreliable to base an entire causation analysis on a

one time examination while the patient was medicated for the subject

condition.” In sum, the trial court determined that Dr. Schlam’s opinions

were based on speculation and assumptions lacking any factual support

in the medical records and excluded his testimony. At trial, the defendants

did not call any witnesses.

Plaintiff moved for a directed verdict on liability and the affirmative

defense of comparative negligence. Sanchez admitted that she was

negligent and that she should not have done the procedure. As to the

defendants’ claim that the plaintiff was comparatively negligent because

she failed to follow her doctors’ instructions to return for future visits, the

plaintiff argued there was no testimony that this had anything to do with

causing her damages and that her alleged failure to follow her doctors’

instructions went to the issue of mitigation of damages rather than actual

liability.

The trial court granted plaintiff’s motions. Thus, the jury considered

only the issue of damages.

In closing arguments, the plaintiff requested $2,684.22 for past medical

expenses and $82,049 for future medical expenses. As to future medical

expenses, she argued (as she testified) that her foundation and soap each

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cost $30 a month; laser treatments, stem cell treatments, and facioplasty

would cost $20,000; and that she would need a lifetime of dermatological

care every two months at $95 a visit. The plaintiff also requested $30 a

day for pain and suffering, which equaled $34,110 for past pain and

suffering and $526,805 for future pain and suffering. The defendants

argued that damages for pain and suffering should be awarded only until

the plaintiff stopped seeking treatment.

The jury returned a verdict of $2,684.22 for past medical expenses,

$29,000 for future medical expenses, $23,000 for past pain and suffering,

and $760,000 for future pain and suffering, for a total damage award of

$814,694.22. The jury also awarded the plaintiff’s husband $10,000 for

past loss of consortium.

The trial court denied the defendants’ motion for new trial, or

alternatively, a motion for remittitur.

Exclusion of the Defendants’ Expert Witness

The defendants argue that the trial court misapplied Daubert and

wrongfully excluded their expert witness, Dr. Schlam. Plaintiff responds

that the trial court properly excluded Dr. Schlam’s testimony because his

opinion was not based upon reliable data and methodology. Dr. Schlam

lacked sufficient knowledge of the plaintiff’s pre-existing rosacea condition

from which he could form an opinion regarding aggravation of her

condition.

The standard of review of a trial court’s ruling on a motion in limine is

abuse of discretion. Dessaure v. State, 891 So. 2d 455, 466 (Fla. 2004).

“Such discretion is limited by the rules of evidence, and a trial court

abuses its discretion if its ruling is based on an ‘erroneous view of the law

or on a clearly erroneous assessment of the evidence.’” Patrick v. State,

104 So. 3d 1046, 1056 (Fla. 2012) (quoting McDuffie v. State, 970 So. 2d

312, 326 (Fla. 2007)).

Under Daubert, the trial court has “the task of ensuring that an expert’s

testimony both rests on a reliable foundation and is relevant to the task at

hand.” Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579, 597 (1993). The

trial court must consider “whether the reasoning or methodology

underlying the testimony is scientifically valid and of whether that

reasoning or methodology properly can be applied to the facts in issue.”

Id. at 592-93. The Daubert test, as codified in section 90.702, requires

that “[t]he testimony is based upon sufficient facts or data”; “[t]he

testimony is the product of reliable principles and methods”; and “[t]he

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witness has applied the principles and methods reliably to the facts of the

case.” “The proponent of expert testimony must, when properly

challenged, establish the basis for its admissibility by a preponderance of

the evidence.” Baan v. Columbia Cnty., 180 So. 3d 1127, 1131-32 (Fla. 1st

DCA 2015).

Under section 90.791 and Daubert, the trial courts must “act as

gatekeepers, excluding evidence unless it is reliable and relevant.” Crane

Co. v. DeLisle, 206 So. 3d 94, 101 (Fla. 4th DCA 2016). “The court’s

gatekeeping function requires more than simply ‘taking the expert’s word

for it.’” Id. at 101 (quoting United States v. Frazier, 387 F.3d 1244, 1265

(11th Cir. 2004) (en banc)).

In this case, the trial court conducted a thorough Daubert analysis

before excluding the testimony of Dr. Schlam. The trial court found that

Dr. Schlam failed to apply reliable methodology and that his opinions were

based upon unfounded assumptions and thus lacked evidentiary value.

Dr. Schlam rendered an opinion that the chemical peel the defendants

applied to the plaintiff’s face did not cause any permanent exacerbation of

the plaintiff’s rosacea. His opinion was based upon a brief medical

examination of the plaintiff, a review of the plaintiff’s medical records, and

photographs of the plaintiff taken after the chemical peel. As the trial

court pointed out, Dr. Schlam never reviewed any photographs of the

plaintiff taken before the chemical peel to determine her pre-incident

condition. Further, he relied on Dr. Wallach’s medical records to form his

opinion regarding the severity of the plaintiff’s rosacea before the subject

chemical peel. In doing so, he made unwarranted inferences and

assumptions as to her pre-existing condition because Dr. Wallach’s

records did not provide sufficient information as to the pre-incident

intensity and distribution of her rosacea and other conditions related to

her rosacea. The trial court found that Dr. Schlam’s conclusions were

based on speculation and assumptions.

Although courts have recognized that a physical examination and

review of medical records may qualify as an acceptable and reliable

methodology, see, e.g., In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 762

(3d Cir. 1994), an expert’s opinion should not, as here, be based on

assumptions not rooted in any facts actually contained in the medical

records relied upon. We conclude that the trial court properly excluded

the testimony of the defendants’ expert, Dr. Schlam.

Directed Verdict on Comparative Negligence

The defendants also argue the trial court erred in directing a verdict in

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the plaintiff’s favor on the issue of comparative negligence, because

evidence that the plaintiff’s own behavior in ignoring medical advice to

continue treatment and take medication created a jury question as to

whether the plaintiff contributed to her condition. We disagree. The trial

court properly granted plaintiff’s motion for directed verdict on the issue

of comparative negligence because the defendants offered no evidence to

support this defense. The defendants did not present any evidence that

the plaintiff’s failure to follow her doctors’ advice contributed to the

permanent aggravation of her rosacea. No medical expert testified that the

plaintiff’s alleged failure to seek medical treatment caused or contributed

to her injury. See Norman v. Mandarin Emergency Care Ctr., Inc., 490 So.

2d 76, 79 (Fla. 1st DCA 1986) (stating that mere speculation by the

defendants, without supporting evidence, is insufficient to establish

comparative negligence).

Denial of Motion for Remittitur

Next, the defendants contend the trial court abused its discretion in

denying their motion for remittitur. We reject this claim because the jury’s

award for future medical expenses and pain and suffering was not clearly

excessive and was supported by the record.

“The circuit court’s determination on an issue of remittitur is reviewed

using an abuse of discretion standard.” Sch. Bd. of Broward Cnty. v. Pierce

Goodwin Alexander & Linville, 137 So. 3d 1059, 1072 (Fla. 4th DCA 2014);

see also Lassitter v. Int’l Union of Operating Eng’rs, 349 So. 2d 622, 627

(Fla. 1976).

“A jury is accorded wide latitude in determining the amount of non-

economic damages.” Hendry v. Zelaya, 841 So. 2d 572, 575 (Fla. 3d DCA

2003). “The fact that a damage award is large does not in itself render it

excessive nor does it indicate that the jury was motivated by improper

consideration in arriving at the award.” Allred v. Chittenden Pool Supply,

Inc., 298 So. 2d 361, 365 (Fla. 1974). A verdict should not be declared

excessive “merely because it is above the amount which the court itself

considers the jury should have allowed.” Bould v. Touchette, 349 So. 2d

1181, 1184 (Fla. 1977). The verdict should be disturbed only when “it is

so inordinately large as obviously to exceed the maximum limit of a

reasonable range within which the jury may properly operate.” Id. at 1184-

85.

In determining whether to grant a remittitur, a court considers the

following criteria:

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(a) Whether the amount awarded is indicative of prejudice,

passion, or corruption on the part of the trier of fact;

(b) Whether it appears that the trier of fact ignored the

evidence in reaching a verdict or misconceived the merits of

the case relating to the amounts of damages recoverable;

(c) Whether the trier of fact took improper elements of

damages into account or arrived at the amount of damages by

speculation and conjecture;

(d) Whether the amount awarded bears a reasonable

relation to the amount of damages proved and the injury

suffered; and

(e) Whether the amount awarded is supported by the

evidence and is such that it could be adduced in a logical

manner by reasonable persons.

§ 768.74(5), Fla. Stat.

The record in this case does not show any impropriety that may have

led to the size of the verdict for the plaintiff’s future pain and suffering,

nor is there any evidence that the jury was influenced by considerations

outside of the record. The plaintiff introduced ample evidence of how the

effects of the procedure caused physical impairment, disfigurement,

mental anguish, inconvenience, aggravation of her rosacea, and loss of

capacity for the enjoyment of life. Her skin is no longer smooth and her

rosacea is no longer mild. She has permanent scarring, bumpy skin, and

regular flare ups in the shape of the burn. Before the procedure the

plaintiff was outgoing and social, but now she is shy and anti-social.

In short, as to the award of future pain and suffering, the defendants

have not shown that the award “is so inordinately large as obviously to

exceed the maximum limit of a reasonable range within which the jury

may properly operate.” Bould, 349 So. 2d at 1184-85.

The award for future medical expenses and makeup was also supported

by the record. The plaintiff introduced evidence that her foundation and

soap to reduce redness each cost $30 a month. Additionally, Dr. Le

testified that the cost of laser treatment, stem cell treatment, and

facioplasty would be $20,000. Further, both Drs. Le and Zaydon testified

that her condition would require a lifetime of treatment, and past medical

bills showed office visits in the amount of $80 and $95 per visit. Although

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the plaintiff had not sought medical treatment in the two years preceding

trial, she presented expert medical evidence that her injury was

permanent, requiring a lifetime of treatment.

In sum, because the defendants did not show the trial court abused its

discretion in denying the motion for remittitur, we affirm on this issue.

Cross-appeal on denial of the plaintiff’s attorney’s fees

After the jury verdict, the plaintiff moved for fees and costs pursuant to

a proposal for settlement under section 768.79(6)(b) and rule 1.442. She

attached a copy of the proposal for settlement and release in support. The

proposal for settlement, which had a certificate of service dated November

24, 2015, offered to settle the case for $175,000. Paragraph 2 of the

release, however, named individuals who were not parties to the litigation.

Specifically, the second paragraph stated:

The undersigned through their heirs, executors,

administrators, and assigns, further agree to indemnify and

hold harmless GLORIA PATRICIA SANCHEZ from and against

any and all claims resulting from the alleged negligence of

GLORIA PATRICIA SANCHEZ, its heirs, agents, servants or

employees by any and all third parties claiming subrogation

rights (whether they be statutory, contractual or common

law), to recover from GLORIA PATRICIA SANCHEZ any monies

paid or due to be paid by the third party or parties to or on

behalf of JAMES WALLER, as Personal Representative of the

[sic] PAULA FINEN, deceased, and JAMES WALLER, her

husband, individually, for medical expenses or lost wages

whether or not the expenses is considered to be or to have

been paid by a collateral source.

The defendants argued that the proposal for settlement was ambiguous

because of its reference to unknown non-parties, James Waller and Paula

Finen. After a hearing, the trial court denied the motion for fees. The

plaintiff cross-appealed the denial of her motion.

The plaintiff argues the trial court erred in denying her motion for fees

because the proposal for settlement and release were not ambiguous. The

typographical error in the release was not inconsistent with the proposal

for settlement. Any possible ambiguity would be resolved by looking at the

proposal and release as a whole.

An order declining to enforce a proposal for settlement is reviewed de

10

novo. Kiefer v. Sunset Beach Invs., LLC, 207 So. 3d 1008, 1010 (Fla. 4th

DCA 2017). See also Alamo Fin., L.P. v. Mazoff, 112 So. 3d 626, 628 (Fla.

4th DCA 2013) (“The standard of review in determining whether a proposal

for settlement is ambiguous is de novo.”).

A proposal for settlement “must state with particularity any relevant

conditions and all non-monetary terms.” Palm Beach Polo Holdings, Inc. v.

Vill. of Wellington, 904 So. 2d 652, 653 (Fla. 4th DCA 2005). The proposal

should “be as specific as possible, leaving no ambiguities, so that the

recipient can fully evaluate its terms and conditions.” Id. (quoting

Swartsel v. Publix Super Markets, Inc., 882 So. 2d 449, 452 (Fla. 4th DCA

2004)). A proposal for settlement must be “read as a whole” and “is not

ambiguous unless a genuine inconsistency, uncertainty, or ambiguity in

meaning remains after resort to the ordinary rules of construction.”

Alamo, 112 So. 3d at 630.

“[G]iven the nature of language, it may be impossible to eliminate all

ambiguity. The rule does not demand the impossible. It merely requires

that the settlement proposal be sufficiently clear and definite to allow the

offeree to make an informed decision without needing clarification.” State

Farm Mut. Auto. Ins. Co. v. Nichols, 932 So. 2d 1067, 1079 (Fla. 2006).

“Therefore, parties should not ‘nit-pick’ the validity of a proposal for

settlement based on allegations of ambiguity unless the asserted

ambiguity could ‘reasonably affect the offeree’s decision’ on whether to

accept the proposal for settlement.” Alamo, 112 So. 3d at 629 (quoting

Carey–All Transp., Inc. v. Newby, 989 So. 2d 1201, 1206 (Fla. 2d DCA

2008)).

Although a proposal for settlement should “be as specific as possible,

leaving no ambiguities, so that the recipient can fully evaluate its terms

and conditions,” see Palm Beach Polo Holdings, 904 So. 2d at 653, this

general principle does not make the proposal for settlement invalid in this

case because the proposal and release were not ambiguous. There was no

doubt that the plaintiff was offering to settle the case against Defendant

Sanchez for $175,000 and that the release would prevent Sanchez from

ever being sued again by the plaintiff for injuries relating to the March 19,

2013 procedure. The proposal and release stated with particularity the

relevant conditions and all non-monetary terms. Read as a whole, the

proposal and release did not have any ambiguities that prevented Sanchez

from fully evaluating the terms and conditions. Although the release

contained a reference to non-parties, this was clearly a “cut and paste”

typographical error that did not create an ambiguity that could have

reasonably affected Sanchez’s decision whether to accept the proposal.

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The cases the defendants rely on are distinguishable because those

cases involved a patent ambiguity in the amount of the settlement. See

Stasio v. McManaway, 936 So. 2d 676, 678 (Fla. 5th DCA 2006) (finding

patent ambiguity where the proposal offered to settle for $60,000, but

release that accompanied proposal spelled out $59,000 while also

referencing $60,000 in numerals); Gov’t Emps. Ins. Co. v. Ryan, 165 So.

3d 674 (Fla. 4th DCA 2015) (finding proposal that spelled out $100,000 in

words but also referred to $50,000 in numerals contained patent

ambiguity). The defendant’s reliance on South Florida Pool & Spa Corp. v.

Sharpe Investment Land Trust Number J, 207 So. 3d 301, 304 (Fla. 3d DCA

2016), is also misplaced because in that case an ambiguity between the

proposal and the release made it unclear what claims the offer was meant

to include. Here, in contrast, the proposal and release made clear which

claims the plaintiff was offering to settle and the amount to settle them.

More on point is Kiefer v. Sunset Beach Investments, LLC, 207 So. 3d

1008 (Fla. 4th DCA 2017). In that case, one of the defendants served a

proposal for settlement on the plaintiff offering to settle the case solely

against that defendant. The proposal incorporated a release in which two

paragraphs limited the release to that defendant, while two other

paragraphs did not mention that defendant’s name. In reading the

settlement and release as a whole, however, we found no ambiguity. We

explained that all of the paragraphs related solely to that defendant and

the plaintiff, and the two paragraphs that did not include that defendant’s

name were in between other paragraphs that did include his name. See

also Michele K. Feinzig, P.A. v. Deehl & Carlson, P.A., 176 So. 3d 305, 309

(Fla. 3d DCA 2015) (finding that naming attorneys in releases did not

create an ambiguity between proposals and releases). Here, as in Kiefer,

when one reads the proposal and release as a whole, it is clear that the

proposal and release relate only to Sanchez and the plaintiff.

Further, courts have recognized that typographical errors do not

automatically create an ambiguity. In Mathis v. Cook, 140 So. 3d 654,

656-57 (Fla. 5th DCA 2014), the court recognized that there were

typographical errors in the release; however, the errors did not create an

ambiguity. Rather, it was apparent from the release that in order to settle

the matter with one defendant, the plaintiffs would be required to release

all three defendants. Similarly, in Floyd v. Smith, 160 So. 3d 567, 569-70

(Fla. 1st DCA 2015), the court found that a typographical gender error in

the proposal did not result in any ambiguity which could have affected

appellant’s consideration of the proposal. See also Jefferson v. City of Lake

City, 965 So. 2d 174, 175 (Fla. 1st DCA 2007) (typographical error in

proposal for settlement citing to nonexistent statute did not render

proposal invalid where notice of proposal cited to correct statute number).

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In sum, we conclude that the trial court erred in declining to enforce

the proposal for settlement because, taken as a whole, no ambiguity

existed that would have affected Defendant Sanchez’s ability to make a

decision.

Affirmed on direct appeal, and Reversed on cross-appeal.

WARNER, J., and BUCHANAN, LAURIE, E., Associate Judge, concur.

* * *

Not final until disposition of timely filed motion for rehearing.

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