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Nicholson-Kenny Capital Management12/14/2005
ing judge, who shall enter such orders and judgments as may be required to carry out the terms of the decisions as provided by section 44.103(5), Florida Statutes.
In Klein v. J.L. Howard, Inc., 600 So. 2d 511, 512 (Fla. 4th DCA 1992), we held that "upon the failure to move for a trial de novo within 20 days of the service of an arbitration award . . . the trial court is required to enforce the award and lacks discretion to do otherwise." (Emphasis supplied). Later, we again explained that 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." Johnson v. Levine, 736 So. 2d 1235, 1238 (Fla. 4th DCA 1999).
Neither Klein nor Johnson involved a case, as here, in which a notice for trial had already been served, and the trial had been set on a docket. The filing of a pleading styled "motion for trial" under such circumstances does not seem required, nor does the rule require that the pleading be styled "motion for trial." Instead, 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.
In Johnson we noted that we could not interpret "Exceptions to Arbitration Order" as requesting a trial de novo, because no mention of a trial was made anywhere in the document. We noted,
Frankly we can find nothing anywhere in any of these documents that could plausibly support an argument that in substance these defendants were really requesting a trial de novo. The words "trial de novo" appear nowhere in their papers. In fact there is nothing in any of them even hinting at or suggesting they wanted a trial or further trial proceedings. They merely attack the arbitrator's findings and conclusions. In our view, the trial judge was quite correct in finding that these "exceptions" simply failed to request a trial de novo.
736 So. 2d at 1239. To the contrary, in this case, based upon the provisions of the order setting trial, Nicholson's attorney filed a notice setting the attorney pretrial conference only four days after receiving the arbitrator's decision. In the notice, Nicholson clearly indicated a desire to proceed to trial in the case. Both attorneys attended the calendar call for the trial period, and Nicholson requested a trial date in open court, in accordance with the order setting trial. Its attorney met with Steinberg's attorneys to hammer out a joint pre-trial statement. There is no question in this case that Nicholson requested a trial within twenty days of the arbitrator's decision, and there is more than a "hint" of that fact in the filings with the court.
Even though the notice indicating a continued demand to proceed to trial was not specifically styled a "motion for trial de novo," we would conclude that Steinberg, through its conduct, is precluded from raising the issue of non-compliance with rule 1.820. It did not object when its attorneys were noticed to attend the pretrial conference; it worked with Nicholson's attorney to develop the pretrial statement; and it did not object to setting the trial at the docket call. All of these events occurred within the time in which Nicholson could have filed a "motion for trial de novo" had it known that Steinberg was insisting that it file a document so styled. Steinberg continued preparing for a trial and never revealed its argument that the notice of setting the pretrial conference in accordance with the order setting trial was insufficient to put it on notice that Nicholson intended to proceed with a trial.
The purpose
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