One of the lessons I have had to learn as a civil plaintiff’s attorney is how difficult it can be to collect money from defendants … even after they signed a written settlement agreement. My goal in this article is teach you how to properly close a lawsuit (pursuant to a settlement) so that you can easily file a motion and have the judge enforce the settlement.
If you want the judge to be able to enforce the judgment, you must close the case in a way where the judge retains jurisdiction. If the Plaintiff dismisses his/her own case with prejudice (as many settlement agreements demand), then the judge forever loses jurisdiction on that case and CANNOT enforce that case’s settlement. MCR Funding v. CMG Funding Corp., 771 So.2d 32 (4th DCA 2000); Dandar v. Church of Scientology Flag Service Organization, 190 So.3d 1100 (2nd DCA 2016). So, DO NOT dismiss your own case with prejudice unless you want to have to file a whole other lawsuit (breach of contract) to enforce your settlement.
Here is the simplest and easiest way to ensure that the judge retains jurisdiction to enforce the settlement:
- Have the judge enter an order of dismissal.
- Include the following language in the order of dismissal “This Court reserves jurisdiction to enforce the terms of the settlement agreement.” Dandar, 190 So.3d 1100.
Here is a more complicated (and therefore less desirable) way to ensure that the judge retains jurisdiction to enforce the settlement follows:
- Bring your settlement agreement to the judge for her to review.
- Have the judge enter an order of dismissal.
- Write the order of dismissal in a manner that incorporates the settlement agreement into the order. MCR Funding, 771 So.2d 32;
Motion to Enforce Settlement
The motion itself is fairly simple and straightforward. You need to make sure you include the following three (3) items in your request for relief: (1) enforce the settlement agreement, (2) movant interest, and (3) attorney’s fees associated with bringing the motion to enforce (assuming your settlement agreement allows for attorney’s fees to enforce the agreement).
The body of the motion can be pretty short. You must state (1) what you and the defendant agreed to (the part the defendant breached) and (2) that the defendant breached your agreement and how the defendant breached the agreement.
I like to include a Statement of Facts that includes a timeline of the end of the case, the settlement agreement, and the breach. I make sure to include dates that I contacted the defendant to ask them to perform their portion of the contract for two reasons: (1) because professional courtesy demands contacting opposing counsel before getting the court involved (it’s always possible that opposing counsel made a good faith mistake) and (2) because, if it does go to the judge, you look good because your were being courteous and professional.
I recently went through a situation where the defendant and my client agreed to settle a case for a certain amount of money. We announced it in open court. The judge entered an order dismissing the case with prejudice. And then we waited for the defendant to pay us. And we waited. And waited.
The settlement agreement called for us (the Plaintiff) to dismiss the case with prejudice once the settlement agreement was executed. However, the judge became impatient and entered the order of dismissal on her own initiative. Luckily for us, her order specifically reserved jurisdiction to enforce the terms of the settlement agreement. So, after an inordinate amount of time and many unreturned emails and phone calls, we emailed the defendant our motion to enforce and let them know we would file it within a week if we did not have checks in hand. And wouldn’t you know it, the check miraculously appeared after three (3) days.
All in all, it took a number of months from the day we announced in open court that we had settled the case to the day that the defendant paid what they agreed to pay. I had always thought that, as a lawyer, the legal work was the most difficult part of the job. I have since learned that collecting money from defendants can be even more difficult.
In conclusion, if you are going to dismiss your case pursuant to a settlement agreement, have the judge enter an order of dismissal. Make sure that order of dismissal specifically reserves jurisdiction to enforce the settlement agreement. And be courteous to opposing counsel. Chances are you will be able to work the issue out without having to involve the court.