Sandra O’Neill v. Scher, — So.2d —-, 2008 WL 5352183 (Fla. 3d DCA Dec 24, 2008)

In the linked-to opinion the parties executed a settlement agreement supposedly putting an end to their litigation involving contested probate claims. The settlement agreement contained the following release language:

3. Sandra O’Neill hereby releases any present and/or future interest which she may have in and to the following:

a. The Estate of Benjamin Scher opened in Miami-Dade County, Florida, under case number 06-0057 CP (04);

b. The Benjamin Scher Revocable Inter Vivos Trust dated 8/30/01, as amended and restated on 8/11/04, and/or any successor trust created through said trust, including but not limited to Marital Trust, Credit Shelter Trust, and Trust for the Benefit of Cassandra O’Neill;

c. Benjamin Scher Irrevocable Trust dated 9/1/99;

d. Any interest claim or expectancy of an inheritance from or against the Estate of Sophie Scher, including but not limited to any testamentary documents executed by Sophie Scher.

e. The Sophie Scher Revocable Inter Vivos Trust dated 8/30/01, as amended and re-stated on 8/9/05.

f. Any interest claim or expectancy of an inheritance from or against the Estate of Richard Scher, including but not limited to any testamentary documents executed by Richard Scher.

4. It is understood that this agreement is a memorial of the terms of the within settlement. However, the parties hereby agree to execute formal releases in accordance with the terms set forth herein.

Almost immediately after executing their settlement agreement the parties were back in court. One of the issues in dispute was whether the text quoted above should be limited to its own terms or read broadly to encompass a universal general release.  The probate judge sided with the general-release argument and ended up getting reversed on appeal for the following reasons:

We reverse .  .  .  that portion of the trial court’s order instructing O’Neill to execute the “general release” forwarded to her by Scher’s counsel. As counsel for Scher conceded at oral argument, the release that the trial court ordered O’Neill to execute is overly broad and does not accurately reflect the release of interests and/or claims to which O’Neill agreed in the settlement agreement. Indeed, O’Neill only agreed in paragraph 3 of the Memorandum of Settlement to release six specific present and/or future interests. The general release, on the other hand, contains broad provisions releasing O’Neill’s present and/or future claims for matters, persons, and entities not listed or considered in the settlement agreement.FN2 On remand, the parties shall draft a release concerning only those six specific claims contained in paragraph 3 of the Memorandum of Settlement, and shall release no other present and/or future claims.

FN2. We also note that the general release, which the trial court ordered O’Neill to execute, disposed of the interests of O’Neill’s “heirs, executors, and administrators.” Paragraph 3 of the Memorandum of Settlement, however, contains no such language and, on remand, the release presented to O’Neill for execution shall contain no such language.

Lesson learned:

First, if your client bargained for a general release, then write it into the deal or attach it to your contract as a stand-alone exhibit. As I’ve written before, you don’t want to rely on a court to fill this gap for you [click here].  Second, if you’re dealing with an especially litigious antagonist, you’ll be sorry if you leave any room for future attacks. Click here for an example of a settlement agreement that worked precisely because all future avenues of attack were anticipated and explicitly cut off by the express terms of the parties’ settlement agreement.