DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

SCOTT B. MEYROWITZ,

Appellant,

v.

ANDREW M. SCHWARTZ, P.A., 

Appellee.

No. 4D17-1983

[February 28, 2018]

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 
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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 
3

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 February 3 is the earlier and thus the 

operative date, the March 3 proposal was untimely because it was served 

after this date. 

The firm argues that Liguori v. Daly, 756 So. 2d 268 (Fla. 4th DCA 

2000), supports the trial court’s ruling. In Liguori, the court set the case

for trial on a six-week docket. The case was not called for trial during the 

first five weeks, and parties had been excused from the final week (April 6 

through 13) by court order. Appellee filed a proposal for settlement during 

the last week on April 7. Subsequently, trial was reset on other dockets, 

and the case went to trial on August 24. This court recognized that “an 

offer of judgment is untimely, and, thus, unenforceable, when it is made 

less than forty-five days before the first day of the docket on which the 

case is initially set for trial, regardless of when the case actually goes to 

trial.” Id. at 269. Nevertheless, this court found the proposal timely and 

enforceable because it was “directed to the next, as yet, unscheduled 

docket.” Id. 

Citing Liguori, the court in Progressive Casualty Insurance Co. v. 

Radiology & Imaging Center of South Florida, Inc., 761 So. 2d 399, 400 (Fla. 

3d DCA 2000), stated: 

If an Offer of Judgment is made at a point in time in which it 

appears, from the facts of the individual case, that the Offer 

of Judgment is not directed to the current trial period, but, 

rather, is intended for the next, as yet, unscheduled trial 

period, then in that situation, and in that situation only, the 

Offer of Judgment is not a nullity and is considered timely. In 

order to rely upon this exception, there must be some evidence 

in the record that both parties know that the case will not be 

tried during the current trial period and that the Offer of 

Judgment is made in anticipation of the next, as yet, 

unscheduled trial period.

The Progressive Casualty court concluded that “[t]his is a very limited 

exception which must be strictly applied to these narrow circumstances.” 

Id.

Contrary to the firm’s assertion, the exception carved out in Liguori does 

not apply in this case. Unlike in Liguori, here the case went to trial during 

the initially set docket. The case was set for trial on the eight-week trial 

calendar beginning March 20 and ending May 12. The case actually went 
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to trial on May 2. 

Further, in Liguori the proposal was served during the last week of the 

docket when the case could not have gone to trial because the parties had 

been previously excused. Thus, the proposal was made in anticipation of 

the “next, as yet, unscheduled docket.” Liguori, 756 So. 2d at 269. Here, 

in contrast, the proposal was made two days after the order which 

scheduled trial for a date during the originally scheduled docket. Thus, 

the proposal was “directed to the current trial period,” not the “next, as 

yet, unscheduled trial period.” Progressive Cas., 761 So. 2d at 400 (citing 

Liguori, 756 So. 2d at 269). 

The fact that the case was ultimately heard by Judge Garrison instead 

of Judge French does not render the proposal for settlement timely. See 

Liguori, 756 So. 2d at 269 (stating that a continuance cannot “breathe[] 

life back into an otherwise untimely offer of judgment”) (quoting Schussel, 

736 So. 2d at 778). The order setting the case for the trial docket did not 

specify which judge would be presiding. Further, rule 1.442(b) speaks to 

dockets generally and does not address dockets before specific judges. The 

rule is concerned with the timing of a proposal for settlement, not with the 

specific judge who ultimately presides over a trial. Which particular judge 

ultimately presides over the trial does not have any bearing on the 

timeliness of a proposal. 

In sum, the proposal for settlement was untimely. The case was 

scheduled for trial during an eight-week calendar, and the trial occurred 

during that calendar. Although the proposal was served more than fortyfive days before the date set for trial, it was not served more than forty-five 

days before the first date of the docket as required under rule 1.442(b). 

As such, we reverse. 

Reversed.

CIKLIN and KLINGENSMITH, JJ., concur. 

* * *

Not final until disposition of timely filed motion for rehearing.