               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                            IN THE DISTRICT COURT OF APPEAL
                                            OF FLORIDA
                                            SECOND DISTRICT

CARMEN DE ACOSTA, as personal               )
representative of the Estate of John        )
de Acosta, deceased,                        )
                                            )
              Appellant,                    )
                                            )
v.                                          )        Case No. 2D18-423
                                            )
NAPLES COMMUNITY HOSPITAL, INC.             )
d/b/a NAPLES COMMUNITY HOSPITAL,            )
                                            )
              Appellee.                     )
                                            )

Opinion filed September 25, 2019.

Appeal from the Circuit Court for Collier
County; Lauren L. Brodie, Judge.

Douglas F. Eaton of Eaton & Wolk, PL,
Miami, for Appellant.

Michael R. D'Lugo of Wicker Smith
O'Hara McCoy & Ford, P.A., Orlando,
for Appellee.


MORRIS, Judge.

              Carmen de Acosta, as personal representative of the estate of John de

Acosta, appeals a final judgment entered in favor of Naples Community Hospital (NCH)

in Mrs. de Acosta's action for medical malpractice and loss of consortium. Because we

conclude that Mrs. de Acosta substantially complied with the requirement for moving for
a trial de novo pursuant to Florida Rule of Civil Procedure 1.820(h) and that NCH's

conduct in the matter operated as a waiver of strict compliance with the rule, we reverse

the final judgment.

                                     BACKGROUND

              The action below was originally filed in both Mr. and Mrs. de Acosta's

names in their individual capacities. However, during the pendency of the proceedings,

Mr. de Acosta died and the complaint was amended to list Mrs. de Acosta in her

capacity as representative of Mr. de Acosta's estate. The matter was initially set for trial

in February 2018, but in the interim, the trial court referred the case to nonbinding

arbitration. A nonbinding arbitration award was entered in favor of NCH on December

4, 2017. Nine days later, on December 13, 2017, Mrs. de Acosta filed her statement of

facts, identification of disputed facts, and identification of issues of law. NCH

responded, filing its own statement of facts and identification of issues of law on

December 15, 2017. On January 2, 2018, NCH filed a "Notice of Referral of Non-

Binding [sic] Arbitration Decision," wherein it argued that no party had moved for a trial

de novo within the time required by section 44.103(5), Florida Statutes (2017), and rule

1.820(h). On that same day, Mrs. de Acosta filed a motion for trial de novo and the trial

court entered an order directing the clerk of court to unseal the arbitration award. Mrs.

de Acosta filed an objection to the order directing the clerk to unseal the arbitration

award. However, on January 9, 2018, the trial court, sua sponte, entered final judgment

in favor of NCH, consistent with the arbitration award. In doing so, the trial court noted

that neither party had moved for trial de novo within the time required under rule

1.820(h).


                                            -2-
                                          ANALYSIS

              In this appeal, Mrs. de Acosta argues that because an initial trial date had

already been set, moving for trial de novo was superfluous. She also argues that she

indicated her rejection of the arbitration award by filing her statement of facts and

disputed issues and that NCH waived its right to challenge her failure to file a formal

motion for trial de novo when it responded by filing its own statements of facts and

disputed issues.

              We agree with Mrs. de Acosta that under the circumstances of this case,

rule 1.820(h) should not be strictly applied.1 Rule 1.820(h) provides in relevant part that

"[i]f a motion for trial is not made within 20 days of service on the parties of [a

nonbinding arbitration] 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 as provided by section 44.103(5)." Section 44.103(5), in turn, provides in

relevant part that "[a]n 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 [s]upreme [c]ourt."

              However, in Nicholson-Kenny Capital Management, Inc. v. Steinberg, 932

So. 2d 321 (Fla. 4th DCA 2006), the Fourth District applied the doctrine of waiver to its

analysis of rule 1.820(h), on facts similar to ours, where notice of trial had already been

served prior to arbitration proceedings and where, after an arbitration decision had been

rendered, both parties had filed documents or engaged in other conduct suggesting that

they were proceeding to an already set trial date. In doing so, the court rejected the




              1Our opinion should not be construed to create a general waiver or
exception to the requirements of rule 1.820(h).
                                              -3-
argument that a pleading styled "motion for trial" was required to be filed in a case

where a notice for trial had already been served and where a trial had already been set

on the docket. Id. at 324. The court noted that rule 1.820(h) did not even require that a

pleading be styled "motion for trial." Instead, the court interpreted the rule to "require[]

some notice to the opposing party that its adversary is rejecting an arbitration award

and renewing its demand for trial." Id.

              In Steinberg, the appellant's attorney filed a notice setting a pretrial

conference a mere four days after the arbitration decision was rendered, and in it,

appellant "clearly indicated a desire to proceed to trial in the case." Id. Thereafter, both

attorneys attended a calendar call, the appellant requested a trial date in open court in

accordance with the order setting trial, and the attorneys for both parties met to work out

a joint pretrial statement. Id. The court explained that "[t]here is no question . . . that

[appellant] requested a trial within twenty days of the arbitrator's decision" and that

"there is more than a 'hint' of that fact in the filings with the court." Id. The court's

decision to reverse and remand the final judgment was also predicated on the fact that

despite having multiple opportunities to object to proceeding to trial due to the

appellant's failure to formally move for a trial, the appellee never objected and instead

participated in proceedings moving the case along. Id. at 324-25.

              The rationale used by the court in Steinberg applies equally here. While

Mrs. de Acosta did not technically comply with rule 1.820(h) by filing a formal motion for

trial, she substantially complied with it by filing—a mere nine days after the arbitrator's

decision was rendered—her statement of facts, identification of disputed facts, and

identification of issue of law. In doing so, she indicated her rejection of the arbitrator's



                                             -4-
decision by summarily stating that "[t]he facts are in dispute regarding liability,

causation, and damages" and by noting that the parties' motion in limine was an issue

of law to be decided by the court. Further, as in Steinberg, the trial had already been

set on the docket in this case. Thus, by filing her statement of facts and identification of

disputed facts and issues of law, Mrs. de Acosta was clearly indicating that she wished

to proceed to the already set trial date.

              Crucial to our holding, however, is the fact that NCH filed its own

statement of facts and identification of issues of law, wherein it acknowledged there

were disputed factual and legal issues. That action led Mrs. de Acosta to believe that

NCH was also prepared to proceed to the already set trial date. It was only after the

twenty-day period set forth in rule 1.820(h) expired that NCH sought to have a final

judgment entered in its favor pursuant to rule 1.820(h) and section 44.103(5). Such

conduct appears to be in the nature of a "gotcha" tactic. That is not the purpose of rule

1.820(h), see Steinberg, 932 So. 2d at 325, and we disapprove of such tactics to the

extent that that was the intent. By engaging in the proceedings in this manner, NCH

waived Mrs. de Acosta's strict compliance with rule 1.820(h). Finally, we note that NCH

has not argued or otherwise shown that it was prejudiced in any way.

              Therefore we reverse and remand for a trial on the merits.

              Reversed and remanded.



KHOUZAM, C.J., Concurs.
ATKINSON, J., Dissents with opinion.




                                             -5-
ATKINSON, Judge, Dissenting.

              I respectfully dissent because the language of section 44.103(5), Florida

Statutes (2017), and Florida Rule of Civil Procedure 1.820(h) does not permit the

conclusion reached by the majority. Unless a party requests a trial de novo within

twenty days after the arbitration decision has been served on the parties, the decision

becomes final and must be enforced by the trial court: "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." § 44.103(5) (emphasis added). "If no request for

trial de novo is made within the time provided, . . . the presiding judge . . . shall enter

such orders and judgments as are required to carry out the terms of the decision." Id.

(emphasis added). "If a motion for trial is not made within 20 days of service on the

parties of the decision, . . . the presiding judge . . . shall enter such orders and

judgments as may be required to carry out the terms of the decision as provided by

section 44.103(5)." Fla. R. Civ. P. 1.820(h) (emphasis added).

              In no uncertain terms, the statute and rule require a motion for trial in

order to avoid the finality and enforcement of the arbitration decision. See Klein v. J.L.

Howard, Inc., 600 So. 2d 511, 512 (Fla. 4th DCA 1992) ("[U]nder the clear and

mandatory provisions of [the statute and rule], 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 added) (citations

omitted)).

              The majority opinion acknowledges that Mrs. de Acosta did not file a

motion for trial but asserts that rule 1.820(h) should not be "strictly applied" under the



                                             -6-
circumstances of this case. Those circumstances include the fact that Mrs. de Acosta

made filings in preparation for trial after service of the arbitrator's decision and that NCH

made its own pretrial filings in response. But the statute provides that a party is only

entitled to a trial de novo upon request, § 44.103(5), and the rule requires that the

request be made in the form of a "motion for trial," Fla. R. Civ. P. 1.820(h). See

Patterson v. Allstate Ins. Co., 884 So. 2d 178, 180 (Fla. 2d DCA 2004) ("[I]f no motion

for trial is timely served, then the trial court must enforce the decision of the arbitrator

and has no discretion to do otherwise." (emphasis added) (quoting Bacon Family

Partners, L.P. v. Apollo Condo. Ass'n, 852 So. 2d 882, 888 (Fla. 2d DCA 2003))),

abrogated on other grounds, Pino v. Bank of New York, 121 So. 3d 23 (Fla. 2013).

              Furthermore, the fact that parties exchange pretrial filings after receiving

an arbitration decision does not necessarily imply that those parties ultimately intend to

proceed to trial any more than a failure to file such documents implies that either party

has decided not to request a trial. All parties have until the end of the twenty days to

make that decision. In fact, it seems wholly reasonable that a party's decision whether

to request a trial in lieu of an arbitration decision could be informed by pretrial

documents filed during the twenty-day period, which filings might very well shed light on

the likelihood of success or failure at trial as compared to the outcome of the arbitration.

              A party can file and serve documents for the purpose of preparing for trial

after receiving an adverse arbitration decision, but it still retains the option to allow the

arbitration decision to become final and enforceable by operation of law at the end of

the twenty days. In the face of this reality, it seems reasonable that a party in whose




                                             -7-
favor the arbitration decision was entered, such as NCH, would continue to prepare for

trial as well.

                 Yet the majority suggests that NCH played "gotcha" by making pretrial

filings and waiting until after the twenty days had run before seeking to have the

arbitration decision enforced by final judgment. But NCH could not request enforcement

of the arbitration decision before the twenty days had run; up until that point, Mrs. de

Acosta still had the option to request a trial or let the arbitration decision become final.

By implying otherwise, the majority erroneously shifts the burden to the party seeking

enforcement of the arbitration decision and relieves the other party of its obligation to

make its intention to proceed to trial known during the twenty-day period—even though

the latter is a mandatory requirement plainly set forth in the governing rule and statute.

                 The potential for brinksmanship conduced by rule 1.820(h) is a natural

consequence of its statutorily prescribed function: the provision of a time period during

which the parties can decide whether or not to accept the decision of the arbitrator, a

strategic calculation that can be mulled at the same time as—and be informed by—the

ongoing preparation for a trial that may never happen. A court that relies on such

preparation to ascertain a party's intentions risks subversion of the litigants' justifiable

reliance on the framework of the rule in favor of the court's subjective speculation.

                 But even assuming a court could confidently divine a party's desire for a

trial de novo from that party's participation in trial preparation after receipt of the

arbitration decision, such an inference is irrelevant in light of the plain language of

section 44.103 and rule 1.820. The statute and rule are unequivocal. The judge "shall

enter" orders and judgments carrying out the terms of the arbitration decision unless a



                                              -8-
party makes "a motion for trial" within twenty days—not implies, not tacitly

communicates, not indicates a desire as the majority suggests, but moves for a trial.

Fla. R. Civ. P. 1.820(h); see § 44.103(5). Absent a motion for trial, the court has no

discretion but to perform its ministerial duty of enforcing the arbitration decision. See

United Auto. Ins. Co. v. Ortiz, 931 So. 2d 1025, 1026 (Fla. 4th DCA 2006) (describing

enforcement of the arbitration decision as a "ministerial act" over which the "trial court

has no discretion" when neither party requests a trial de novo within twenty days

(quoting Connell v. City of Plantation, 901 So. 2d 317, 319 (Fla. 4th DCA 2005))); cf.

Connell, 901 So. 2d at 319 (reversing and remanding for entry of a final judgment, even

though the defendant had already furnished the plaintiff with full payment of the

arbitration award, because "entry of a judgment in accordance with an arbitrator’s

decision is a ministerial act," a request for which the "trial court has no discretion to

deny" (citing Johnson v. Levine, 736 So. 2d 1235, 1238 (Fla. 4th DCA 1999) ("[T]hese

are not merely precatory provisions. They create the right to enforce an arbitration

award that has become final and binding as a result of a failure to request a trial."))).2



              2The     majority accurately cites to Nicholson-Kenny Capital Management,
Inc. v. Steinberg, 932 So. 2d 321 (Fla. 4th DCA 2006), as having expressed that the
rule does not require a pleading styled "motion for trial." However, that proposition is
questionable in light of the language of the relevant subsection of the rule, which is
entitled "Time for Filing Motion for Trial." Fla. R. Civ. P. 1.820(h). Section 44.103(5)
sets forth that the "arbitration decision shall be final if a request for a trial de novo is not
filed within the time provided" by rule 1.820(h), which provides that a party "may file a
motion for trial." (Emphasis added.) At any rate, the rule unambiguously requires that a
motion be made. See Fla. R. Civ. P. 1.820(h) (requiring the court to enforce the
arbitration decision "[i]f a motion for trial is not made"); see also § 44.103(5) (requiring
enforcement "[i]f no request for trial de novo is made"). It is not necessary here to
address the question of whether a written filing is required or if the motion can be made
orally, because Mrs. de Acosta did neither. In that regard, Steinberg is arguably
distinguishable from this case. In Steinberg, although the appellant did not file a motion
for new trial, it did "request[] a trial date in open court" after having received the
                                             -9-
              Pursuant to the unambiguous language of the governing statute and rule,

the arbitration decision became final and enforceable as a matter of law after no party

moved for a trial during the twenty days after the decision had been served on the

parties. I would affirm because the trial court did not err by entering judgment in

accordance with the arbitration decision.




arbitration decision but before the twenty days had elapsed, Steinberg, 932 So. 2d at
324—a definitive and overt act much more akin to the statutory requirement of a specific
"request" for a trial (albeit still falling short of the rule's requirement that a "motion for
trial" be made) than any effort made by Mrs. de Acosta in this case.
                                            - 10 -
