17 Fla. L. Weekly Supp. 773a
Online Reference: FLWSUPP 1709NEVI
Insurance — Settlement — Enforcement — Error to rule on cross-motions to enforce settlement without conducting evidentiary hearing and taking evidence — Neither unsworn statements of counsel nor documents attached as exhibits to motions and memoranda are evidence
MICHAEL NEVILLE, Appellant, vs. SOUTHERN-OWNERS INSURANCE COMPANY, Appellee. Circuit Court, 20th Judicial Circuit (Appellate) in and for Charlotte County. Case No. 08-07AP. L.C. Case No. 07-1855CC. April 15, 2009. Appeal from the County Court for Charlotte County; Peter A. Bell, Judge. Counsel: Christopher J. Smith, Goldstein, Buckley, Cechman, Rice & Purtz, P.A., Fort Myers, for Appellant. Curtright C. Truitt and J. Brian Hurt, Curtright C. Truitt, P.A., Fort Myers, for Appellee.
(PER CURIAM.) Michael Neville (Neville) appeals the trial court’s order granting Southern-Owners Insurance Company’s (the insurance company’s) motion to enforce settlement. For the reasons expressed below, we reverse and remand for further proceedings.
Both parties filed cross motions to enforce settlement. The motions include documents attached as exhibits. The insurance company filed an affidavit from their attorney with their motion. Neville did not file any affidavits with his motion.
The trial court held a hearing on the parties’ motions. Neither party presented evidence at the hearing. The hearing consisted of argument by counsel. The trial court reserved ruling on the motions, noted that the insurance company did not move to enter into evidence the affidavit from their attorney, and directed the parties to file memoranda of law, addressing, among other things, the need for an evidentiary hearing. The parties filed the memoranda. The memoranda include documents attached as exhibits. The memoranda do not specifically address the need for an evidentiary hearing. After receiving the memoranda, the trial court entered an order granting the insurance company’s motion. Subsequently, Neville filed this timely appeal.
The standard of review is de novo. Ivester v. Parkway Regional, 996 So. 2d 909 (Fla. 1st DCA 2008) [33 Fla. L. Weekly D2735b]; France v. Gambone, 793 So. 2d 114 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1999b]. Settlement agreements are interpreted under principles of contract law. J. Allen, Inc. v. Castle Floor Covering, Inc., 543 So. 2d 249 (Fla. 2d DCA 1989). The party seeking to enforce a settlement agreement has the burden to show that the attorney for the opposing party had the unequivocal authority to settle on the client’s behalf. Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., 933 So. 2d 732 (Fla. 2d DCA 2006) [31 Fla. L. Weekly D1991b]. The party seeking judgment based on a settlement has the burden to prove assent by the opposing party and must establish that there was a meeting of the minds or mutual or reciprocal assent to certain definite propositions. Giovo v. McDonald, 791 So. 2d 38 (Fla. 2d DCA 2001) [26 Fla. L. Weekly D1378b]. A contract does not depend on the parties having meant the same thing, but having said the same thing. Robbie v. City of Miami, 469 So. 2d 1384 (Fla. 1985).
Contrary to the trial court’s instructions, the parties’ memoranda of law do not specifically address the need for an evidentiary hearing. Nevertheless, we find that the trial court erred by not holding an evidentiary hearing on the parties’ cross motions to enforce settlement. The findings in the trial court’s order granting the insurance company’s motion to enforce settlement lack record support because there was no evidence taken at the hearing below. See Architectural Network, Inc., 933 So. 2d 732 [31 Fla. L. Weekly D1991b]; Andersen Windows, Inc. v. Hochberg, 997 So. 2d 1212 (Fla. 3d DCA 2008) [34 Fla. L. Weekly D12a]; Commercial Capital Resources, LLC v. Giovannetti, 955 So. 2d 1151 (Fla. 3d DCA 2007) [32 Fla. L. Weekly D814a]. Unsworn statements of counsel do not establish facts. Hitt v. Homes & Land Brokers, Inc., 993 So. 2d 1162 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D2613a]. The documents attached as exhibits to the parties’ motions and memoranda are not evidence. Waliagha v. Kaiser, 989 So. 2d 660 (Fla. 2d DCA 2008) [33 Fla. L. Weekly D1771a]. As the trial court noted at the hearing below, the insurance company did not move to enter into evidence the affidavit from their attorney. Additionally, Neville’s motion and memorandum essentially dispute recitations in that affidavit regarding the settlement terms, thus, requiring an evidentiary hearing. See Peraza v. Robles, 983 So. 2d 1189 (Fla. 3d DCA 2008) [33 Fla. L. Weekly D997a].
Accordingly, though not the relief requested by Neville, we reverse and remand for an evidentiary hearing on the parties’ cross motions to enforce settlement. The witnesses and evidence must provide the trial court with competent, substantial evidence upon which to base its order.
Reversed and remanded with instructions. (WINESETT, KRIER, and B. KYLE, J.J.., Concur.)
