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Florida Fourth DCA reverses trial court, finds proposal for settlement untimely because served later than 45 days before first day of docket on which case was set for trial

On February 28, 2018, in Meyrowitz v. Schwartz, No. 4D17-1983, the Florida Fourth DCA reversed a trial court ruling awarding a prevailing plaintiff attorney’s fees and costs, concluding that under Fla. R. Civ. P. 1.442(b) the proposal was untimely because it was served later than 45 days before the first day of the docket on which the case was set for trial. The case had originally been set for a non-jury trial on the eight-week calendar beginning March 20, 2017 and ending May 12, 2017. However, on March 1, 2018, a new judge entered an order indicating that the case had been transferred to him and setting the case for trial on May 2, 2018. The next day, March 3, 2018, the plaintiff served a proposal for settlement on the defendant, which was not accepted. After the plaintiff prevailed at trial, the plaintiff filed a motion for attorney’s fees pursuant to the proposal for settlement. The defendant objected that the proposal was not timely served because it was served later than 45 days before the March 20, 2017 start of the originally scheduled trial calendar. The defendant claimed that this violated the requirement in Rule 1.442(b) that no proposal 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.” The trial court rejected this argument, apparently concluding that the new judge’s order setting a date certain for the trial superseded the original trial calendar for purposes of Rule 1.442(b). The Fourth DCA disagreed, noting that a plain reading of the statute indicated that a proposal had to be served at least 45 days before the “earlier” of the first day of the docket or the date set for trial. The Fourth DCA distinguished an earlier decision, Liguori v. Daly, 756 So. 2d 268 (Fla. 4th DCA 2000) because in that case the parties had already been excused from trialduring the six-week docket period at the time that the proposal for settlement was filed. See also Progressive Casualty Insurance Co. v. Radiology & Imaging Center of South Florida, Inc., 761 So. 2d 399, 400 (Fla. 3d DCA 2000), which noted that the Liguori precedent is limited to situations in which both parties know that the case will not be tried during the current trial period and that the proposal is made in anticipation of the next, as yet, unscheduled trial period.