JUDITH H. RICHMAN AND DUR-RICH REALTY, INC. vs ROBERT S. CALZARETTA, DEBRA CALZARETTA, KELSMEG, LLC AND SEA & SUN REALTY, INC.

• Court: District Court of Appeal of Florida
• Decided: May 13, 2022
• Docket: 21-1307
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

JUDITH H. RICHMAN AND DUR-RICH REALTY, INC.,

Appellants, Case No. 5D21-1307 v. LT Case No. 05-2017-CA-015505-X

ROBERT S. CALZARETTA, DEBRA CALZARETTA, KELSMEG, LLC AND SEA & SUN REALTY, INC.,

Appellees.

________________________________/

Opinion filed May 13, 2022

Appeal from the Circuit Court for Brevard County, Curt Jacobus, Judge.

August J. Stanton, Jr., of A. J. Stanton, Jr., P.A., Orlando, for Appellants.

Michael R. Riemenschneider and Jeffrey L. DeRosier, of Riemenschneider, Wattwood & DeRosier, P.A., Melbourne, for Appellees.

EISNAUGLE, J. Judith H. Richman and Dur-Rich Realty, Inc. (“Richman” and “Dur-

Rich”), appeal an order awarding Robert S. Calzaretta attorney’s fees and

costs pursuant to section 607.1604(1), Florida Statutes (2020). We reverse

because section 607.1604(1) does not authorize an award of fees incurred

in a garnishment proceeding.

In the underlying dispute, Calzaretta sought to inspect and copy

corporate records and obtained a judgment for attorney’s fees (the “fee

judgment”) pursuant to section 607.1604, which this court affirmed on

appeal. Dur-Rich Realty, Inc. v. Calzaretta, 291 So. 3d 616 (Fla. 5th DCA

2020). Thereafter, Calzaretta commenced garnishment proceedings to

collect the fee judgment and then moved for an additional award of attorney’s

fees incurred in the garnishment effort, once again relying on section

607.1604. The trial court granted the motion and rendered a second fee

judgment in the amount of $18,189.17. This appeal follows.

On appeal, Richman and Dur-Rich argue that section 607.1604(1)

does not authorize attorney’s fees in garnishment proceedings. Calzaretta

responds, in conclusory fashion, that the “seminal language ‘enforce its

rights under this section . . .’ clearly contemplates enforcement actions to

collect on the judgment.” In short, Calzaretta contends that enforcement of

2 his fee judgment is equivalent to the enforcement of his right to inspect and

copy corporate records. We agree with Richman and Dur-Rich and reverse. 1

Section 607.1604(1) provides:

If a corporation does not allow a shareholder who complies with s. 607.1602(1) to inspect and copy any records required by that subsection to be available for inspection, the circuit court in the applicable county may summarily order inspection and copying of the records demanded at the corporation’s expense upon application of the shareholder. If the court orders inspection and copying of the records demanded under s. 607.1602(1), it shall also order the corporation to pay the shareholder’s expenses, including reasonable attorney fees, incurred to obtain the order and enforce its rights under this section.

(emphasis added).

1 We acknowledge that Calzaretta’s reading of the statute might find some general support in the rules of grammar. However, given the lack of briefing, we decline to engage in a lengthy grammatical analysis here. Suffice it to say, we have considered various grammatical principles in reaching our decision, but we conclude any rules of grammar that arguably support Calzaretta’s reading are overridden by the context of the statute. See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 141 (2012) (“The presumption of legislative literacy is a rebuttable one; like all the other canons, this one can be overcome by other textual indications of meaning.”); see also State v. McGary, 93 P.3d 941, 945 (Wash. Ct. App. 2004) (“[W]e must also consider whether the grammatically correct construction of the statute makes sense within the statutory scheme as a whole.” (citation omitted)).

3 As our supreme court recently explained, when interpreting a statute,

Florida’s courts “follow the ‘supremacy-of-text principle’—namely, the

principle that ‘[t]he words of a governing text are of paramount concern, and

what they convey, in their context, is what the text means.’” Ham v. Portfolio

Recovery Assocs., LLC, 308 So. 3d 942, 946 (Fla. 2020) (alteration in

original) (quoting Antonin Scalia & Bryan A. Garner, Reading Law: The

Interpretation of Legal Texts 56 (2012)). “[E]very word employed in [a legal

text] is to be expounded in its plain, obvious, and common sense, unless the

context furnishes some ground to control, qualify, or enlarge it.” State v.

McKenzie, 331 So. 3d 666, 670 (Fla. 2021) (alteration in original) (citation

omitted). Importantly, “[c]ontext always matters because sound

interpretation requires paying attention to the whole law, not homing in on

isolated words or even isolated sections.” Id. at 671 (internal marks and

citation omitted).

When considering the entirety of the statute in context, we reject

Calzaretta’s strained reading of section 607.1604(1). Instead, we believe the

more reasonable reading is that the phrase, “enforce its rights under this

section,” refers to the statute’s primary objective—a shareholder’s right to

inspect and copy records. We do not read section 607.1604(1) to create a

litigation roundabout, where collection proceedings on a fee judgment are

4 followed by a new motion for fees and another fee judgment, only for the

cycle to start all over yet again.

In this case, Calzaretta was obviously not attempting, via the

garnishment proceedings, to obtain an order for the inspection and copying

of records, or even to enforce such an order. Instead, he was attempting to

collect on a fee judgment.

We therefore conclude that the plain language of section 607.1604(1)

does not authorize an award of fees incurred during garnishment

proceedings.2 As a result, we reverse the order on appeal and remand for

further proceedings.

REVERSED and REMANDED.

LAMBERT, C.J., and WALLIS, J., concur.

The motion at issue here, and the trial court’s order, relied on section 2

607.1604(1). We therefore do not consider whether Calzaretta might have been entitled to fees pursuant to some other statute.