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Meyrowitz v. Schwartz

Florida Court of Appeals, Fourth District

February 28, 2018

SCOTT B. MEYROWITZ, Appellant,
v.
ANDREW M. SCHWARTZ, P.A., Appellee.

         Not final until disposition of timely filed motion for rehearing.

         Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward Garrison, Acting Judge; L.T. Case No. 50-2016-CA-008984-XXXX-MB.

          Michael D. Moccia of Law Office of Michael D. Moccia, P.A., Boca Raton, for appellant.

          Andrew M. Schwartz of Andrew M. Schwartz, P.A., Boca Raton, for appellee.

          Levine, J.

         Scott Meyrowitz appeals a final judgment awarding attorney's fees in favor of Andrew M. Schwartz, P.A. ("the firm") pursuant to the offer of judgment rule. Meyrowitz argues that the proposal for settlement was untimely under 1.442(b). We agree and therefore reverse.

         The firm filed an action against Meyrowitz for $49, 121.07 in unpaid legal bills. The clerk entered a default against Meyrowitz for failure to file any pleading. On December 1, 2016, Judge Colin entered an order setting the case for a non-jury trial on the eight week trial calendar beginning March 20 and ending May 12, 2017. On March 1, Judge Garrison entered an order setting the case for non-jury trial before him on May 2. The order stated that the case "came before the Court upon referral by Judge David French regarding Plaintiff's Notice for Trial." The order directed that any motions prior to trial be set before Judge French.

         On March 3, the firm served a proposal for settlement on Meyrowitz, offering to settle the case for $38, 500. Meyrowitz did not accept the proposal. After trial, Judge Garrison entered a judgment in favor of the firm for $49, 121.07, the amount sought in the complaint. Based on the judgment, the firm filed a motion for attorney's fees pursuant to its proposal for settlement. Meyrowitz objected on the grounds that the proposal for settlement was not timely served pursuant to rule 1.442(b). The trial court found that the service of the motion complied with rule 1.442 and entered an order awarding the firm $24, 825 in attorney's fees.

         On appeal, Meyrowitz argues that the proposal for settlement was not timely because it was served later than forty-five days before the first day of the docket on which the case was set for trial. The firm responds that affirmance is warranted because the proposal was served two days after an order removing the case from Judge French's trial calendar and reassigning it to Judge Garrison for a special set trial.

         A de novo standard of review applies in determining whether a proposal for settlement complies with rule 1.442. Regions Bank v. Rhodes, 126 So.3d 1259, 1260 (Fla. 4th DCA 2013).

         Florida Rule of Civil Procedure 1.442(b) states that "[n]o proposal [for settlement] shall be served later than 45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier." Rule 1.442 must be strictly construed because it is punitive in nature in that it imposes sanctions upon the losing party and is in derogation of the common law. Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999). Additionally, the rule must be construed in accordance with the principles of statutory construction. R.T.G. Furniture Corp. v. Coates, 93 So.3d 1151, 1153 (Fla. 4th DCA 2012). As this court has explained:

When the language at issue is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction. Rather, the court must give unambiguous language its plain and ordinary meaning, unless it leads to a result that is either unreasonable or clearly contrary to legislative intent.

Id. (citation omitted).

         As stated above, rule 1.442 requires service more than "45 days before the date set for trial or the first day of the docket on which the case is set for trial, whichever is earlier." (emphasis added). In this case, forty-five days before the first day of the docket was earlier than forty-five days before the date set for trial. Forty-five days before the May 2 trial was March 18. However, forty-five days before the first day of the March 20 docket was February 3. Because ...


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