ON PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL BRIEF OF PETITIONER ON JURISDICTION DENNIS STOWE.

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1 IN SUPREME COURT OF FLORIDA CASE NO. SC Florida. Bar No.: DENNIS STOWE, v. Petitioner, UNIVERSAL PROPERTY AND CASUALTY INSURANCE COMPANY, Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE FOURTH DISTRICT COURT OF APPEAL BRIEF OF PETITIONER ON JURISDICTION DENNIS STOWE (With Appendix) Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Sr., Esquire Suite South Andrews Avenue Fort Lauderdale, FL (954) Broward and Roderick L. McGee, Esquire RODERICK L. McGEE, P.A. Pompano Beach, FL LAW OFFICES OF RICHARD A. SHERMAN, PA. SUITE SOUTH ANDREWS AVE. - FORT LAUDERDALE, FL TEL (954)

2 TABLE OF CONTENTS Pages Table of Citations... ii Point on Appeal... iii Statement of the Facts and Case Summary of Argument Argument: THERE IS A MISAPPLICATION OF THE LAW WITH THE SUPREME COURT'S OPINIONS IN LAMB v. MATETZSCHK, SUPRA; AND SAIA MOTOR FREIGHT LINE, INC.. v. REID, SUPRA; AND THERE IS IN EXPRESS AND DIRECT CONFLICT WITH WHIGUM v. HEILIG-MEYERS FURNITURE, INC., SUPRA; AND GALLARDO v. SCOTT, SUPRA Conclusion Certification of Type Certificate of Service Appendix... Al-4. -l- ANDREWS AVE., FORT LAUDERDALE, FLA TEL. (95-4)

3 TABLE OF CITATIONS Pages Gallardo v. Scott, 821 So. 2d 1237 (Fla. 5 th DCA 2002)... Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005). Nicholson-Kenny Capital Management, Inc. v. Richard Steinberg, Norman Fine, Steinberg Global Asset Management, Ltd., Corp., 31 Fla. L. Weekly, D423 (Fla. 4 th DCA, February 8, 2006)... Preferred Mutual Insurance Company v. Davis, 629 So. 2d 259 (Fla. 4 th DCA 1993)... Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598 (Fla. 2006)... Whigum v. Heilig-Meyers Furniture Inc., 682 So. 2d 643 (Fla. 1 st DCA 1996)... 4, 5, 6, 7 3, 5, 6 4, 7 4, 7 3, 5, 6 4, 5, 6 REFERENCES Fla. R. Civ. P (b)... Fla. R. Civ. P (h)... 7, 8 1, 3 ANDREWS AVE., FORT LAUDERDALE, FLA 'TEL. (954) S2S -588S

4 POINT ON APPEAL THERE IS A MISAPPLICATION OF THE LAW WITH THE SUPREME COURT'S OPINIONS IN LAMB v. MATETZSCHK, SUPRA; AND SAIA MOTOR FREIGHT LINE, INC., v. REID, SUPRA; AND THERE IS IN EXPRESS AND DIRECT CONFLICT WITH WHIGUM v. HEILIG-MEYERS FURNITURE. INC., SUPRA; AND GALLARDO v. SCOTT, SUPRA LAW OFFICES RICHARD A. SHERMAN, P. A. SUITE 3O2, I 777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA 'TEL. (954)

5 STATEMENT OF THE FACTS AND CASE It is respectfully submitted that the Opinion of the Fourth District creates a misapplication of law, in that it construes two recent Florida Supreme Court cases to mean that the Florida Supreme Court is changing caselaw, such that henceforth Rules of Civil Procedure must be strictly construed. In truth, the Supreme Court decisions hold that statutes which are in derogation of common law must be strictly construed. Therefore, this is a misapplication of law, and there also is conflict with the legions of cases which hold that Rules of Civil Procedure must be liberally construed in order to have trial on the merits. The Opinion is also in express and direct conflict with three other cases which have construed this exact rule, and held that this specific rule must be liberally construed. Fla. R. Civ. P (h)(the Non-Binding Arbitration Rule). The facts were there that the Plaintiff, Stowe, filed suit in 2001, and litigated this heavily, and in May of 2002, Stowe filed a Notice to set the case for trial. The judge returned the Notice to Stowe because the judge had his own rule, which required a "mandatory hearing" before he would set a trial. In July of 2004, the trial judge referred the case to non-binding arbitration, which took place on September 1, At the -1- LAW OFFICES RICHARD A. SHERMAN, P. A. SUITE 3O3, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA TEL. (954) S2S - 58S5

6 arbitration hearing, it was clear the arbitrator did not agree with Stowe's position, and therefore on September 21, Stowe scheduled a "mandatory hearing" with the trial judge for October 26, attaching his May 2004 Notice for Trial. On September 29, 2004, the arbitrator rendered the decision against Stowe, and Stowe did not file an additional Motion for Trial. The trial judge entered Judgment against Stowe since he did not file any pleading within 15 days after the arbitration hearing, indicating he wanted a trial, even though he had filed pleadings both before the arbitration was scheduled, and further filed two documents between the arbitration hearing and the issuance of the Arbitration Order, indicating he wanted a trial. The Fourth District indicated that it was the job of appellate judges to "...read the tea leaves of Florida Supreme Court decisions...", and stated the recent trend was that Rules must be strictly construed, citing cases which hold that attorney's fees statutes which are in derogation of common law must be strictly construed. The court held that since there was not strict compliance with the non-binding arbitration rule, the plaintiff was not entitled to the jury trial--he had requested. The lengthy dissent stated that Stowe had clearly indicated his desire for a jury trial, and therefore Judgment should not -2- ANDREWS AVE., FORT LAUDERDALE, FLA. 333IS»TEL. (95-4)

7 have been entered based on the non-binding arbitration rule. SUMMARY OF ARGUMENT The Opinion of the Fourth District is a misapplication of the law of the Florida Supreme Court on one rule of law, and also is in express and direct conflict on that rule of law. It also is in express and direct conflict with other cases construing this precise rule, and finding that the rule should be liberally construed. The issue in this case is whether R. Civ. P (h), which states that after a non-binding arbitration hearing, a Notice of Trial must be filed in 20 days, should be liberally construed, or strictly construed, such that the party is denied his right to trial if he does not strictly comply. First, the Opinion is a misapplication of the law of the Supreme Court in Lamb v. Matetzschk, 906 So. 2d 1037 (Fla. 2005); Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598 (Fla. 2006). The reason is that Lamb v. Matetzschk and Saia Motor Freight Line, Inc. v. Reid, do not apply to all Rules of Civil Procedure, but only rules and statutes which are in derogation of common law. Those cases hold that a statute which is in derogation of common law must be strictly construed. Therefore, there is a misapplication of those two cases, and there is also -3- ANDREWS AVE., FORT LAUDERDALE, FLA TEL. 1954) 5S5-5885

8 express and direct conflict with the legions of cases as exemplified by the case of Whiqum v. Heiliq-Mevers Furniture Inc., 682 So. 2d 643 (Fla. 1 st DCA 1996), which hold that Rules of Civil Procedure must be liberally construed to allow trial on the merits. Additionally, there is express and direct conflict with the case of Gallardo v. Scott, 821 So. 2d 1237 (Fla. 5 th DCA 2002), which holds that this specific Rule, R. Civ. P (h) must be liberally construed. Two Fourth District cases also hold that that Rule 1.820(h) must be liberally construed. Preferred Mutual Insurance Company v. Davis, 629 So. 2d 259 (Fla. 4 th DCA 1993); and Nicholson-Kenny Capital Manaqement. Inc. v. Richard Steinberg, Norman Fine, Steinberg Global Asset Manaqement, Ltd.. Corp., 31 Fla. L. Weekly, D423 (Fla. 4 th DCA, February 8, 2006). -4- ANDREWS AVE., FORT LAUDERDALE, FLA TEL. O5A)

9 ARGUMENT THERE IS A MISAPPLICATION OF THE LAW WITH THE SUPREME COURT'S OPINIONS IN LAMB v. MATETZSCHK, SUPRA; AND SAIA MOTOR FREIGHT LINE, INC., v. REID, SUPRA; AND THERE IS IN EXPRESS AND DIRECT CONFLICT WITH WHIGUM v. HEILIG- MEYERS FURNITURE, INC., SUPRA; AND GALLARDO v. SCOTT, SUPRA. There is a clear misapplication of law, and there also is clear express and direct conflict. The issue is whether the Non- Binding Arbitration Rule, 1.820(h) should be liberally or strictly construed. In this case, the issue is whether, when the plaintiff signified several times he wanted a trial, both before the arbitration hearing was scheduled, between the time of the arbitration hearing and the time of the arbitration Order, and more than 2 0 days after the arbitration Order, whether he can deny a trial because he did not file yet another pleading in the time gap within 20 days after the arbitration award. The Fourth District held that the job of appellate judges is to "read the tea leaves" of Supreme Court opinions. The Fourth District thought that the Supreme Court's decisions in Lamb v. Matetzschk and Saia Motor Frieght Line, Inc. v. Reid, indicate a tidal shift of the Florida Supreme Court to require strict construction of Rules of Civil Procedure. However, the Supreme Court in Lamb and Saia made clear that the basis of their -5- ANDREWS AVE., FORT LAUDERDALE, FLA. 333IS -TEL. (954)

10 opinions were simply that statutes and rules which are in derogation of common law must be strictly construed. Therefore, this Opinion of the Fourth District is a misapplication of the law of Lamb and Saia. As such, it is in express and direct conflict with the legions of Florida cases as exemplified by Whiqum v. Heilig- Meyers Furniture, Inc., supra, which hold that Rules of Civil Procedure should be liberally construed such that there will be trial on the merits. Additionally, there is express and direct conflict with cases specifically on Rule 1.280(h), which hold that this rule must be liberally construed. The Fifth District in Gallardo v. Scott, supra, held that the 20-day trial de novo deadline is not an inflexible deadline, and that interpretation would "turn the arbitration procedure on its head." The following is a quote from Gallardo: We do not disagree with the result in Klein and we do not believe the Klein court means to say that no matter how many provisions of section or Rule are ignored, the trial de novo deadline of section (4) alone must inflexibly be applied simply because it is the only one with an express consequence. Just from reading the statute, it can be seen that such was not the legislature's intent. Besides, the entry of final judgment is not a consequence of failing to follow the rule -6- ANDREWS AVE., FORT LAUDERDALE, FLA «TEL. (954) 5S5-5885

11 requirement; to the contrary, the entry of judgment is merely the end point of the statutory procedure itself. It is the stage of the proceedings where the decision is made (expressly or constructively) not to proceed with a trial after learning what the arbitrators thought of the claim. It would turn the arbitration procedure on its head to say that entry of judgment is the penalty for not timely requesting a trial de novo. Gallardo, The Gallardo opinion is from the Fifth District, but also two opinions from the Fourth District hold that the 2 0-day period under Rule 1.820(h) should be liberally construed. Preferred Mutual Insurance Company v. Davis, 629 So. 2d 259 (Fla. 4 th DCA 1993); and Nicholson-Kenny Capital Management, Inc. v. Richard Steinberg, Norman Fine, Steinberg Global Asset Management, Ltd., Corp., 31 Fla. L. Weekly, D423 (Fla. 4 th DCA, February 8, 2006). There are also other reasons why this Opinion is in express and direct conflict. 1. Under the Florida rule and the Florida Constitution, once a party demands a jury trial that right is "inviolate," and the right to a jury trial can not be taken away without an affirmative act, such as a written waiver. 2. Rule 1.090(b) holds that the trial courts can grant extensions to perform any actions under the rules, even after the time has passed, and should do so liberally if there is excusable neglect to allow cases to be tried on the merits. A Fourth District -7- ANDREWS AVE., FORT LAUDERDALE, FLA TEL. (95-4) 525-5B8S

12 case has specifically held that the trial courts should grant extensions under Rule 1.090(b) even after the 20-day time limit has passed to file a trial de novo, so that there can be trial on the merits. 3. The non-binding arbitration procedure deprives a party of his common law right to a jury trial, and therefore since it is in derogation of the common law, that statute must be strictly construed. Since the statute is ambiguous as to whether this deadline is inflexible, it must be strictly construed to allow the common law right of trial by jury. 4. An interpretation of the statute and rule such that a right to jury trial which had been demanded in the Answer, can be taken away because of an inadvertent technical failure to file a Notice for Trial De Novo in 20 days, would be in conflict with many rules of law. The first is that, in order to be deprived of the right to a jury trial and have a default entered, there must be repeated willful defiance of court orders. If a party does not make discovery on time, or even does not comply with an Order Compelling Discovery, this is not sufficient to grant a default and defeat a jury trial. There must be repeated willful defiance of court Orders. It certainly would be contrary to this rule of law to hold that an inadvertent technical oversight, such as not filing a pleading in 20 days, would defeat the right to a jury trial. 5. This interpretation would similarly be inconsistent with the rule of law that, even if a party does not file an Answer to a Complaint and a default is taken, the defendant is still entitled to a jury trial on damages. Since not filing an Answer and having a default does not defeat the right to -8- LAW OFFICES RICHARD A. SHERMAN, P. A. SUITE 303, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA »TEL. (954) S5

13 a jury trial on damages, it would certainly be inconsistent to hold that a technical inadvertence of not filing a later pleading on time would defeat the right to a jury trial which had been demanded. 6. The caselaw is clear that even if a party does not attend hearings, or does not attend a pretrial conference, this does not defeat his right to a jury trial. Once again, it would be inconsistent to hold that the technical inadvertence of not filing one pleading on time would defeat the right to a jury trial, when even the non-attendance at a calendar call does not defeat the constitutional right. 7. This holding would be inconsistent with the rule of law that even if a party does not file Answers to a Request for Admissions, it is error to enter a Summary Judgment against the party, which would deprive the party of a right to a jury trial, if other depositions or pleadings show there is an issue of fact; and also, the courts are instructed to allow belated Answers to Requests for Admissions so that the case can be tried on the merits. It would certainly be inconsistent with this rule of law to hold that the technical inadvertence of not filing one pleading timely, would defeat the right to a jury trial. 8. Florida law is clear that amendments to pleadings must be liberally allowed, so that cases can be tried on the merits. Since other pleadings clearly indicated the defendants' desire for a jury trial, under this rule of liberality, a jury trial should be allowed. CONCLUSION Accordingly, there is express and direct conflict, and this -9- LAW OFFICES RICHARD A. SHERMAN, P. A. SUITE 3OS, 1777 SOUTH ANDREWS AVE., FORT LAUDERDALE, FLA. 333IS -TEL. (954)

14 Honorable Court should accept jurisdiction. Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Sr., Esquire Suite South Andrews Avenue Fort Lauderdale, FL (954) Broward and Roderick L. McGee, Esquire RODERICK L. McGEE, P.A. Pompano Beach, FL Richard A. Sherman, Sr ANDREWS AVE., FORT LAUDERDALE, FLA TEL. (954)

15 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed this 17 th day of November, 2006 to: Todd E. Brant, Esquire Nancy W. Gregoire, Esquire BUNNELL, WOULFE, KIRSCHBAUM, KELLER, McINTYRE & GREGOIRE, P.A. 888 East Las Olas Boulevard, Suite 400 Fort Lauderdale, FL Roderick L. McGee, Esquire RODERICK L. McGEE, P.A Southwest 36th Avenue, #101 Pompano Beach, FL CERTIFICATION OF TYPE It is hereby certified that the size and type used in this Brief is 12 point Courier, a font that is not proportionately spaced. Law Offices of RICHARD A. SHERMAN, P.A. Richard A. Sherman, Sr., Esquire Suite South Andrews Avenue Fort Lauderdale, FL (954) Broward and Roderick L. McGee, Esquire RODERICK L. McGEE, P.A. /mn Ribhard A. Sherman, Sr. Pompano Beach. FL -11- ANDREWS AVE., FORT LAUDERDALE, FLA. 333IS «TEL. (954)

16 INDEX TO PETITIONER'S APPENDIX Page Opinion of the Fourth District, dated July 12, 2006 Al-4. ANDREWS AVE., FORT LAUDERDALE, FLA TEL. (95.4)

17 2006 WL ,31 Fla. L. Weekly D1859, Stowe v. Universal Property & Cas. Ins. Co., (Fla.App. 4 Dist. Page ) * Only the Westlaw citation is currently available. NOTICE: THIS OPINION HAS NOT BEEN RELEASED FOR PUBLICATION IN THE PERMANENT LAW REPORTS. UNTIL RELEASED, IT IS SUBJECT TO REVISION OR WITHDRAWAL. District Court of Appeal of Florida, Fourth District. Dennis STOWE, Appellant, v. UNIVERSAL PROPERTY & CASUALTY INSURANCE COMPANY, Appellee. No. 4D July 12, Background: Insurer moved for entry of final judgment in accordance with arbitrator's decision, even though insured had made a motion for trial prior to the decision. The Seventeenth Judicial Circuit Court, Broward County, Robert Lance Andrews, J., entered final judgment for arbitrator. Insured appealed. Holding: The District Court of Appeal, Gross, J., held that the motion for trial did not comply with requirement to make the motion within twenty days of arbitrator's decision. Affirmed. Hazouri, J., dissented and filed opinion. [I] 1.820(h). [2] Alternative Dispute Resolution 25T 25TII Arbitration 25TI1(H) Review, Conclusiveness, and Enforcement of Award 25Tk391 Enforcement in General. The failure to request a trial de novo within twenty days of service of arbitrator's decision creates a right to enforce an arbitration award that has become final and binding as a result of a failure to request a trial. West's F.S.A. RCP Rule I.820(h). [3] Insurance < S^'3324(3) XXVII Claims and Settlement Practices 217XXVIl(B)Claim Procedures 217XXVII(B)7 Arbitration 217k3305 Award 217k3324 Effect of Award 217k3324(3) Conclusiveness. [See headnote text below] [3] Insurance <@=>3331(1) XXVI1 Claims and Settlement Practices 217XXVII(B)Claim Procedures 217XXVI1(B)7 Arbitration 217k3326 Judicial Review 217k3331 Proceedings for Review 2l7k3331(l) In General. Alternative Dispute Resolution < =::> 374(4) 25T 25TII Arbitration 25TII(H) Review, Conclusiveness, and Enforcement of Award 25Tk366 Appeal or Other Proceedings for Review 25Tk374 Scope and Standards of Review 25Tk374(4) Evidence and Trial DeNovo. A motion for trial does not comply with requirement to make the motion within twenty days of arbitrator's decision, if the motion is filed after arbitration hearing, but before the rendition of the arbitrator's decision. West's F.S.A (5); West's F.S.A. RCP Rule > 2006 Thomson/West. No claim to original U.S. Govt. works. Insured's notice for trial that was served before the rendition of the arbitration decision did not comply with requirement to make the motion within twenty days of arbitrator's decision; thus, trial court correctly entered a final judgment for insurer. West's F.S.A (5); West's F.S.A. RCP Rule 1.820(h). Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Robert Lance Andrews, Judge; L.T. Case No (09). Roderick L. McGee of Roderick L. McGee, P.A., Pompano Beach, for appellant. fri

18 2006 WL , 31 Fla. L. Weekly D1859, Stowe v. Universal Property & Cas. Ins. Co., (Fla.App. 4 Dist. 2006) Page 2 Nancy W. Gregoire, Matthew D. Klein, and Todd E. Brant of Bunnell Woulfe Kirschbaum Keller Mclntyre Gregoire & Klein, P.A., Fort Lauderdale, for appellee. GROSS, J. **1 [I] The issue in this case is whether a motion for trial complies with Florida Rule of Civil Procedure 1.820(h) if it is filed after a section arbitration hearing but before the rendition of the arbitrator's decision. We hold that such a motion for trial fails to comply with the rule and affirm. In 2001, Dennis Stowe sued Universal Property & Casualty Insurance Company for breach of an insurance contract. Universal answered and asserted that Stowe's claim was not covered under the policy. From 2001 to 2004, the parties conducted discovery. In May, 2004, Stowe filed a notice to set the case for trial pursuant to Florida Rule of Civil Procedure The trial judge returned the notice to Stowe, because he had failed to comply with the judge's own rule that required a "mandatory hearing" before he would set a trial. In July, 2004, with the parties' agreement, the trial judge referred the case to non-binding arbitration pursuant to section , Florida Statutes (2004). The arbitration took place on September 1, At the arbitration hearing, Stowe's lawyer perceived that the arbitrator disagreed with his position. On September 21, 2004, Stowe scheduled a "mandatory hearing" before the trial judge for October 26, 2004, attaching a copy of his May, 2004, rule notice for trial. The record does not reflect that a hearing took place on October 26. On September 29, 2004, the arbitrator rendered his decision, finding that the insurance policy did not cover Stowe's claim. After the arbitrator's decision, Stowe did not file a motion for trial. On October 28, 2004, Universal moved for the entry of a final judgment in accordance with the arbitrator's decision. See (5). Fla. Stat. (2004); Fla. R. Civ. P (h). The trial judge granted the motion and entered final judgment. [2] The legal framework for this case derives from section and rule 1.820, which created the procedure to effectuate the statute. Section (5) states that an "arbitration decision shall be final if a request for a trial de novo is not filed within the time provided by rules promulgated by the Supreme Court." Rule 1.820(h) provides that "[i]f a motion for trial is not made within 20 days of service on the parties of the [arbitrator's] decision, the decision shall be referred to the presiding judge, who shall enter such orders and judgments as may be required to carry out the terms of the decision..." The "failure to request a trial de novo within the time provided in the rules creates a 'right to enforce an arbitration award that has become final and binding as a result of a failure to request a trial.' " Nicholson-Kenny Capital Mgmt., Inc. v. Steinberg, 31 Fla. L. Weekly D423 (Fla. 4th DCA Feb.8, 2006) (quoting Johnson v. Levine, 736 So.2d 1235, 1238 (Fla. 4th DCA 1999)). When it comes to interpreting rules of civil procedure, often the job of an intermediate appellate court is to read the tea leaves of Florida supreme court decisions. The recent trend in these decisions is to construe rules of civil procedure according to their plain meaning. Some high court opinions strictly construe provisions to create rules that are clear-cut and easy to apply. Thus, Lamb v. Matelzschk, 906 So.2d 1037 (Fla.2005), adopted a bright line rule concerning the form of a rule proposal for settlement. Recently, in Saia Motor Freight Line, Inc. v. Reid, 31 Fla. L. Weekly S281 (Fla. May 11, 2006), the supreme court described rule as establishing "a bright-line time requirement for motions for costs and attorney fees." Wilson v. Salomon, 923 So.2d 363 (Fla.2005) interpreted rule 1.420(e) by its "plain meaning" to "further the purpose of decreasing litigation over the purpose of the rule and fostering the smooth administration of the trial court's docket." **2 [3] The purpose of a rule 1.820(h) motion for trial "is to hasten the litigation along, make the parties evaluate the award, and either accept it or complete the litigation through trial." Nicholson-Kenny, at *4. An award cannot be evaluated until it is made by the arbitrator, indicating that the rule contemplates a motion made after an award. We have previously described the 20 day time period of rule 1.820(h) as a "window," meaning that it opens when an arbitrator serves a decision on the parties and closes 20 days later. State, Dep't of Trans, v. Bellsouth Telecomms., Inc., 859 So.2d 1278, 1279, 1280 n. 1 (Fla. 4th DCA 2003); see Bacon Family Partners, L.P. v. Apollo Condo. Ass'n, Inc., 852 So.2d 882, 888 (Fla. 2d DCA 2003) (describing rule l.820(h) as controlling the procedure "[a]fter the completion of the arbitration proceeding and notice to the parties of the arbitrator's decision"). Consistent with our previous decisions, we > 2006 Thomson/West. No claim to original U.S. Govt. works.

19 2006 WL ,31 Fla. L. Weekly D1859, Stowe v. Universal Property & Cas. Ins. Co., (Fla.App. 4 Dist. Page ) therefore conclude that Stowe's notice for trial served before the rendition of the arbitration decision did not comply with rule 1.820(h), so that the trial court correctly entered a final judgment. The position that Stowe urges us to adopt does violence to the concept of a bright-line rule. If a motion for trial after an arbitration hearing but before a decision complies with the rule, what about a motion after the arbitration is set, but before the hearing, or a motion filed before an order setting arbitration, but after arbitration has been put into play by the court or the parties? We distinguish two cases discussed at oral argument. Nicholson-Kenny involved a case that had been set for trial prior to the arbitration proceeding, a notice for pretrial conference filed after the arbitration decision was rendered, and the preparation of both sides for the upcoming trial. Under these circumstances, we held that the notice for pretrial conference satisfied the requirements of rule 1.820(h). In this case, Stowe filed no similar notice after the rendition of the arbitration decision. Swift v. Wilcox, 924 So.2d 885, 31 Fla. L. Weekly D739 (Fla. 4th DCA Mar.8, 2006), dealt with a different rule of procedure and a different policy behind the rule. There we found that the "primary evil" addressed by rule "was the uncertainty created by excessive tardiness in the filing of motions for fees and costs." Swift, at *2 (quoting Norris v. Treadwell, 907 So.2d 1217, 1218 (Fla. 1st DCA 2005), review granted, 919 So.2d 435 (Fla.2006)). We held that a motion for fees complied with the rule, and the policy behind it, when it was filed after the issuance of the order deciding the case, but before the largely ministerial act of entering the final judgment that conformed with the order. Affirmed. WARNER, J., concurs. HAZOURI, J, dissents with opinion. HAZOURI, J., dissenting. Although the majority holds that the time requirements set forth in Florida Rule of Civil Procedure 1.820(h) must be interpreted as a "brightline rule" requirement for filing a motion for trial following a voluntary arbitration, in my view the majority places form over substance. As the majority noted, this case was originally filed in 2001 and continued into litigation through May 2004 when Stowe filed a notice to set the case for jury trial, as is his right pursuant to Florida Rule of Civil Procedure Instead of receiving an order setting the case for trial, Stowe's notice was returned to him by the trial judge because the trial judge had established within his own division his own rule requiring that before a case could be set for trial, the parties seeking a trial date had to set a "mandatory" hearing. The purpose for such a procedure was to determine if the case was in fact ready for trial, i.e., that all the necessary discovery had been completed. **3 As noted, the arbitration took place on September 1, 2004, but prior to that time, on August 20, 2004, Stowe filed the mandatory notice of hearing scheduling that hearing for September 14, On September 10, 2004, Stowe filed another notice of mandatory hearing setting the hearing for October 5, On September 21, 2004, Stowe again filed a notice of mandatory hearing attaching a copy of his May 20, 2004, notice to set the case for trial, and setting a hearing on October 26, Can there really be any doubt that Stowe wanted his day Zin court? As the majority notes, at the arbitration hearing, Stowe's lawyer perceived that the arbitrator disagreed with his position. It would seem to me that no useful purpose is served in requiring Stowe's lawyer to actually receive an arbitrator's written decision before he could file a notice requesting a trial date. As this court stated in Nicholson-Kenny, "the purpose of the motion for trial in court-ordered non-binding arbitration is to hasten the litigation along, make the parties evaluate the award, and either accept it or complete the litigation through trial." Id. at *3. Where is it written in rule 1.820(h) that a litigant must wait until the actual rendition of a written arbitration award before seeking a trial de novo? The rule only calls for a motion for trial be made "within 20 days of service on the parties of the decision..." The rule does not say that the motion for trial can only be filedafter rendition of the arbitration award. The rule does not state that there is a "window" that opens upon the rendition of a written decision and closes 20 days later. As long as the trial court and the opposing party had notice within 20 days of the completion of the arbitration that Stowe wanted a trial, what possible purpose could be served by the majority's "bright-line rule?" Clearly, Stowe's continual effort to file a motion for a mandatory hearing to set the case for trial was well within 20 days of September 29, ) 2006 Thomson/West. No claim to original U.S. Govt. works.

20 2006 WL , 31 Fla. L. Weekly Dl 859, Stowe v. Universal Property & Cas. Ins. Co., (Fla.App. 4 Dist. Page ) In Nicholson-Kenny, this court did not stand on the formality of requiring a party to file a motion for trial after an arbitration award was rendered. Nicholson- Kenny Capital Management, Inc., sued Steinberg for misappropriation of trade secrets. After discovery and motion practice, Steinberg moved to set the case for trial. The trial court entered an order setting calendar call for August 29, The order prescribed the pretrial procedure, including the holding of a pretrial conference between the parties and the filing of the pretrial statement. It also ordered the parties to nonbinding arbitration pursuant to rule The parties went to arbitration and the arbitrator rendered a decision on August 13, Thereafter, Nicholson's attorney served a "Notice of Conference of Parties & Attorneys" on Steinberg. Steinberg had prevailed in the arbitration. It was not until after the pretrial conference that Steinberg filed a motion for final judgment alleging that because Nicholson failed to file a motion for trial de novo, the court was required to enter a final judgment on the arbitrator's decision. The trial court agreed with Steinberg and entered a final judgment. **4. This court ruled, despite the fact that Nicholson never filed a motion to set the case for trial after rendition of the arbitration award, that the filing of a pleadin g styled "motion for trial" under the circumstances of this case was not required. We even went so far as to say that the rule does not require that the pleading be styled "motion for trial." Instead of engaging in a "bright-line rule" analysis, this court stated that " i]nstead, we think the rule requires some notice to the opposing party that its adversary is rejecting an arbitration award and renewing its demand for trial, which in this case was already set." Id. at *2. As the court in Nicholson-Kenny noted: Justice Thornal, speaking for the court after adoption of the Rules of Civil Procedure, said: No longer are we concerned with the "tricks and technicalities of the trade:" The trial of a lawsuit should be a sincere effort to arrive at the truth. It is no longer a game of chess in which the technique of the maneuver captures the prize. Id. at *4 (quoting Cabot v. Clearwater Constr. Co., 89 So.2d 662, 664 (Fla. 1956)). In the instant case it is clear that Stowe did not wish to be bound by the non-binding arbitration. He filed a motion for mandatory notice of hearing on August 20, 2004, again on September 10, 2004, and a third time on September 21, To hold that Stowe had to wait for the rendition of the arbitrator's decision before filing a notice for trial, which he was prevented from doing due to the trial judge's procedure, creates a "bright-line rule" that obstructs the fair administration of justice and denies Stowe his right to a jury trial. Therefore, 1 would reverse and direct the trial court to vacate the final judgment and permit Stowe to proceed to trial Thomson/West. No claim to original U.S. Govt. works.