Schussel v. Ladd Hairdressers, Inc.
| Decision Date | 07 July 1999 |
| Docket Number | No. 98-1853., No. 98-1713 |
| Parties | Tessie SCHUSSEL, Appellant/Cross-Appellee, v. LADD HAIRDRESSERS, INC., d/b/a Hair & Company, a Florida corporation, Appellee/Cross-Appellant. |
| Court | Florida District Court of Appeals |
Pamela Beckham of Beckham & Beckham, P.A., North Miami Beach, for appellant/cross-appellee.
Hinda Klein of Conroy, Simberg & Ganon, P.A., Hollywood, for appellee/cross-appellant.
This is an appeal by the plaintiff, Tessie Schussel (Schussel), of a final judgment for the defendant, Ladd Hairdressers, Inc. (Ladd), entered pursuant to a jury's verdict in a trip and fall negligence action. Ladd also appeals the trial court's non-final order denying Ladd's motion to tax costs and attorney's fees. These two cases have been consolidated for this appeal.
On April 21, 1995, Schussel fell in Ladd's shop after her hair appointment. Schussel, eighty-four years of age at the time, broke her left hip and left shoulder as a result of the fall. The injuries sustained by Schussel required surgery. According to Schussel, she tripped and fell over wires that were lying on the floor. However, Ladd asserted that Schussel fell because she became dizzy and that the wires played no role in her fall. The jury returned a verdict in Ladd's favor finding there was no negligence which was a legal cause of loss, injury or damage to Schussel. The trial court denied Ladd's subsequent motion to tax attorney's fees and costs pursuant to an offer of judgment, ruling that the offer of judgment was untimely.
Schussel asserts four points on appeal. We find that all four points are without merit and affirm the final judgment. We also find that the trial court was correct in denying Ladd's motion for attorney's fees and costs pursuant to its offer of judgment because the offer was untimely.
Ladd contends that it made a valid offer of judgment in the amount of $10,000.00 pursuant to section 768.79, Florida Statutes (1995) and Florida Rule of Civil Procedure 1.442. As a result of the jury verdict and final judgment of no liability, Ladd claims it is entitled to have the court assess costs and attorney's fees pursuant to the offer of judgment. The trial court's order denying the defendant's motion to tax costs and attorney's fees stated that the defendant's offer of judgment was untimely and thus unenforceable because the offer of judgment was made less than forty-five days before the first day of the docket on which the case was set for trial.
This case was initially set for a three week trial docket beginning August 18, 1997. Ladd's offer of judgment was served on July 24, 1997, twenty-five days before the first day that the trial docket was set to begin. The 1997 version of Florida Rule of Civil Procedure 1.442(b) delineates the time requirements necessary regarding a proposal for settlement (offer of judgment).1 Rule 1.442(b) indicates that, to be timely, a proposal for settlement must be served forty-five 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. In this case, the first date set for the docket to begin was for a three week period beginning August 18, 1997. There was no date certain for the trial to commence. Rule 1.442(b) allows for the distinction between the date that a case is set for trial and the first day of the docket and requires the forty-five day period be measured from whichever date is earlier. The defendant's offer of judgment did not comply with the strict requirements of Rule 1.442(b).
Ladd contends that the offer of judgment was...
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...is in derogation of the common law and is penal in nature."), approved, 849 So.2d 276 (Fla.2003); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999) (noting that "section 768.79 and Florida Rule of Civil Procedure 1.442 are punitive in nature . . . .") (citing TGI F......
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...4th DCA 1996). Numerous cases have described the offer of judgment statute as being "punitive." See, e.g., Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999) (describing section 768.79 as "punitive in nature"). As Seidman argues, the goals of the two statutes are th......
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...technical violation" as in Spruce Creek Development Co. v. Drew, 746 So.2d 1109 (Fla. 5th DCA 1999)); Schussel v. Ladd Hairdressers, Inc., 736 So.2d 776, 778 (Fla. 4th DCA 1999) (affirming order denying offer of judgment because it was untimely); see also Hall v. Lexington Ins. Co., 895 So.......
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