So here’s the typical scenario at the end of a successful mediation conference: it’s been a long day; the clients, the lawyers and the mediator are all tired. No one wants the other side to get cold feet and back out of the deal, so everyone’s willing to stay put for as long as it takes to get the settlement documents typed up and executed before anyone walks out the door.
The lawyers doing the typing, proofing and negotiating of the final text are as tired and bleary-eyed as everyone else (probably more so, they’ve been “on” all day); drafting mistakes happen. Usually those mistakes get caught by one of the many eyeballs reading each draft as it comes off the printer: the mediator, the lawyers, the clients. But sometimes a mistake doesn’t get caught. Scrivener’s errors (what the rest of the world calls “typo’s”) slip by, clauses are inadvertently omitted, no one’s perfect. If it’s a garden variety mistake that doesn’t change the ultimate deal, no one cares. But sometimes a small mistake has big consequences. Again, not a problem if all sides agree to live by the deal they originally struck; you simply circulate a new corrected contract, everyone signs it, all is well.
But what if one side decides he doesn’t want to play nice; he likes the new deal inadvertently created by the drafting mistake. In fact, he’ll take this new deal “thank you very much.” What then? Think: reformation based on mutual mistake.
What’s the reformation/mutual-mistake rule?
In Florida a court can step in and “reform” a settlement agreement to fix drafting mistakes if the difference between what the parties agreed to and what the written document actually says is due to a “scrivener’s error or inadvertence.” Usually this rule is expressed in terms of “mutual” mistake. As in both sides were mistaken when they signed a contract containing a drafting error. So does this rule require both sides to admit there’s a drafting mistake before a court can step in and fix it? No. This is the first key take-away for this case: the mutual-mistake rule does NOT require all sides to mutually agree there’s a drafting mistake. All you need is one vote to win: your judge. Here’s how the Florida Supreme Court stated the rule in Providence Square Ass’n, Inc. v. Biancardi, 507 So.2d 1366 (Fla. 1987), a case involving a settlement agreement resolving a condo dispute:
Biancardi next argues that, as a matter of law, the trial court’s findings of fact did not justify the conclusion of mutual mistake. We disagree and find the trial court’s finding of mutual mistake to be correct. A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument. Blumberg, 51 So.2d at 184. Because the developer, Biancardi, and the other unit purchasers understood that the respective percentage ownership shares in the common elements were to be twenty-five percent each for units one, two, and three, and twelve and one-half percent each for units four and five, the declaration’s provision of equal twenty-percent shares for all five units was clearly a mutual mistake.[FN3.]
[FN3.] Even if, as Biancardi suggests, there was no mutual mistake because she knew the declaration gave units four and five each a twenty-percent share, there would still be grounds under the evidence for a decree of reformation. Reformation is proper when there is a mistake on the part of one side of the transaction, and inequitable conduct on the part of the other side. See, e.g., Hopkins v. Mills, 116 Fla. 550, 156 So. 532 (1934).
Sugar v. Guardianship of Stern, — So.3d —-, 2013 WL 440122 (Fla. 3d DCA February 06, 2013)
Now back to the 3d DCA’s opinion linked-to above. In 2010 a probate court declared Idelle Stern incapacitated as a result of her advanced age and stroke-related diminished mental capacity, and appointed Comprehensive Personal Care Services, Inc. (“CPCS”) as plenary guardian over her person and her property. Ms. Stern has four daughters. Litigation broke out among the 4 daughters involving Ms. Stern’s estate. The litigation was eventually settled and documented in a settlement agreement signed by all 4 daughters and approved of by the probate court. Sometime later it was discovered an important clause had been inadvertently omitted from the settlement agreement. At this point 3 daughters agreed there was a mistake, 1 didn’t. A 3-1 vote is tough to beat; not surprisingly the probate judge agreed with the majority and reformed the settlement agreement to fix the “unrefuted” drafting mistake.
When is a mutual mistake “unrefuted”?
Based on the following evidence, the 3d DCA stated it was “unrefuted . . . that the [settlement agreement] omission was as a result of a mutual mistake due to a scrivener’s error or inadvertence.”
[FN1.] The three daughters and CPCS submitted six sworn affidavits and the sworn testimony of three of the attorneys who attended the settlement conference, who all averred that the omitted provision was an inadvertent scrivener’s error and a mutual mistake. The Sugars offered no evidence to refute these sworn statements.
What’s interesting about the 3d DCA’s “unrefuted” comment is that the court isn’t saying 4th daughter hadn’t made allegations refuting the drafting mistake (she must have or there’d be no case to litigate), instead it’s saying she never offered any evidence refuting her sisters’ version of events. The distinction is important and apparently decided the outcome. This is the second key take-away for this case: anyone can talk a good game, but none of it matters if you can’t prove it. Based on the evidence, the 3d DCA had no trouble affirming the probate judge’s reformation order.
The trial court’s order granting reformation of the settlement agreement is reviewed for an abuse of discretion. Kartzmark v. Kartzmark, 709 So.2d 583, 586 (Fla. 4th DCA 1998). Because it is unrefuted[FN1] that the . . . omission was as a result of a mutual mistake due to a scrivener’s error or inadvertence, we affirm. See Tobin v. Michigan Mut. Ins. Co., 948 So.2d 692, 696 (Fla.2006) (holding that reformation is an equitable remedy employed when a written instrument, due to mutual mistake, does not accurately express the intent or agreement of the parties); Moree v. Moree, 59 So.3d 205, 207 (Fla. 2d DCA 2011) (finding the existence of a mutual mistake where the difference between what the parties agreed to and what the written documents state was due to a scrivener’s error or inadvertence).