41 Fla. L. Weekly D1196bTop of Form
Attorney’s
fees — Proposal for settlement — Trial court erred in finding that plaintiff
timely accepted proposal for settlement where plaintiff did not accept proposal
during 30-day period provided for in rule — Tolling — Filing of rule 1.090
motion to enlarge time to accept proposal for settlement under rule 1.442 does
not toll 30-day acceptance period between date of proposal and when it is
deemed rejected — Conflict certified
fees — Proposal for settlement — Trial court erred in finding that plaintiff
timely accepted proposal for settlement where plaintiff did not accept proposal
during 30-day period provided for in rule — Tolling — Filing of rule 1.090
motion to enlarge time to accept proposal for settlement under rule 1.442 does
not toll 30-day acceptance period between date of proposal and when it is
deemed rejected — Conflict certified
LAURA OCHOA, Appellant, v. DONNA KOPPEL and PROGRESSIVE
SELECT INSURANCE COMPANY, a Foreign Profit Corporation, Appellees. 2nd
District. Case No. 2D14-1866. Opinion filed May 20, 2016. Appeal from the
Circuit Court for Pinellas County; Jack Day, Judge. Counsel: George A. Vaka and
Nancy A. Lauten of Vaka Law Group, P.L., Tampa, for Appellant. Anthony J.
Russo, Ezequiel Lugo and Jared M. Krukar of Butler Weihmuller Katz Craig LLP,
Tampa; and Paul U. Chistolini and William G.K. Smoak of Smoak, Chistolini &
Barnett, PLLC, Tampa, for Appellee Donna Koppel. No appearance for remaining
Appellee.
SELECT INSURANCE COMPANY, a Foreign Profit Corporation, Appellees. 2nd
District. Case No. 2D14-1866. Opinion filed May 20, 2016. Appeal from the
Circuit Court for Pinellas County; Jack Day, Judge. Counsel: George A. Vaka and
Nancy A. Lauten of Vaka Law Group, P.L., Tampa, for Appellant. Anthony J.
Russo, Ezequiel Lugo and Jared M. Krukar of Butler Weihmuller Katz Craig LLP,
Tampa; and Paul U. Chistolini and William G.K. Smoak of Smoak, Chistolini &
Barnett, PLLC, Tampa, for Appellee Donna Koppel. No appearance for remaining
Appellee.
(SALARIO, Judge.) Laura Ochoa appeals a final judgment
entered after the trial court ruled that Donna Koppel timely accepted a
proposal for settlement that Ms. Ochoa served pursuant to section 768.79,
Florida Statutes (2013), and Florida Rule of Civil Procedure 1.442. She asserts
that Ms. Koppel failed to accept the proposal during the thirty-day period
provided for in rule 1.442(f)(1) and that Ms. Koppel’s motion to enlarge the
time to accept the proposal, which the trial court ultimately denied, did not
toll that thirty-day period while it was pending. We agree, reverse, and
certify conflict with the Fifth District’s decision in Goldy v. Corbett
Cranes Services, Inc., 692 So. 2d 225 (Fla. 5th DCA 1997).
entered after the trial court ruled that Donna Koppel timely accepted a
proposal for settlement that Ms. Ochoa served pursuant to section 768.79,
Florida Statutes (2013), and Florida Rule of Civil Procedure 1.442. She asserts
that Ms. Koppel failed to accept the proposal during the thirty-day period
provided for in rule 1.442(f)(1) and that Ms. Koppel’s motion to enlarge the
time to accept the proposal, which the trial court ultimately denied, did not
toll that thirty-day period while it was pending. We agree, reverse, and
certify conflict with the Fifth District’s decision in Goldy v. Corbett
Cranes Services, Inc., 692 So. 2d 225 (Fla. 5th DCA 1997).
I.
On December 9, 2011, Ms. Ochoa was injured in a crash with a
car driven by Ms. Koppel. In April 2013, she sued Ms. Koppel, alleging
negligence and seeking damages to compensate her for her injuries.
car driven by Ms. Koppel. In April 2013, she sued Ms. Koppel, alleging
negligence and seeking damages to compensate her for her injuries.
On September 3, 2013, Ms. Ochoa served Ms. Koppel with a
proposal for settlement pursuant to section 768.79 and rule 1.442. The proposal
offered to dismiss the action with prejudice in exchange for a lump-sum payment
by Ms. Koppel of $100,000. Rule 1.442(f)(1) provides that a proposal for
settlement is “deemed rejected” if not accepted within thirty days after
service of the proposal, and Ms. Ochoa’s proposal stated that it would be
withdrawn if not accepted within that time. On the same day she served the
proposal, Ms. Ochoa filed a notice that the case was ready for trial.
proposal for settlement pursuant to section 768.79 and rule 1.442. The proposal
offered to dismiss the action with prejudice in exchange for a lump-sum payment
by Ms. Koppel of $100,000. Rule 1.442(f)(1) provides that a proposal for
settlement is “deemed rejected” if not accepted within thirty days after
service of the proposal, and Ms. Ochoa’s proposal stated that it would be
withdrawn if not accepted within that time. On the same day she served the
proposal, Ms. Ochoa filed a notice that the case was ready for trial.
On October 2, 2013 — one day before the thirty-day period
to accept the settlement proposal expired — Ms. Koppel filed a motion seeking
to enlarge the time in which to respond to the proposal. The motion cited
Florida Rule of Civil Procedure 1.090, which governs enlargements of time, and
alleged that Ms. Koppel had not had sufficient time to evaluate the proposal
because (1) she had recently received through discovery a new MRI report
bearing on Ms. Ochoa’s alleged injuries and (2) the case remained “in its
infancy” and Ms. Ochoa’s deposition had not been taken. Ms. Ochoa later filed a
notice setting a hearing on the motion for December 2, 2013.
to accept the settlement proposal expired — Ms. Koppel filed a motion seeking
to enlarge the time in which to respond to the proposal. The motion cited
Florida Rule of Civil Procedure 1.090, which governs enlargements of time, and
alleged that Ms. Koppel had not had sufficient time to evaluate the proposal
because (1) she had recently received through discovery a new MRI report
bearing on Ms. Ochoa’s alleged injuries and (2) the case remained “in its
infancy” and Ms. Ochoa’s deposition had not been taken. Ms. Ochoa later filed a
notice setting a hearing on the motion for December 2, 2013.
Although we do not have a transcript of the hearing, the
parties agree that the court did not render a decision on December 2 and that
it instead requested that the parties submit additional authorities on or
before December 5. The day after the hearing, on December 3, 2013, Ms. Koppel
served a notice purporting to accept the proposal for settlement. Two days
later, on December 5, 2013, she provided the court with the authorities it had
requested. Later that day, the court entered an order denying Ms. Koppel’s
request to enlarge the time in which to accept the proposal for settlement.
parties agree that the court did not render a decision on December 2 and that
it instead requested that the parties submit additional authorities on or
before December 5. The day after the hearing, on December 3, 2013, Ms. Koppel
served a notice purporting to accept the proposal for settlement. Two days
later, on December 5, 2013, she provided the court with the authorities it had
requested. Later that day, the court entered an order denying Ms. Koppel’s
request to enlarge the time in which to accept the proposal for settlement.
Ms. Ochoa next filed a motion to strike Ms. Koppel’s notice
accepting the proposal for settlement on grounds that it was untimely. Ms.
Koppel opposed the motion and argued that under the Fifth District’s decision
in Goldy, her filing of a motion to enlarge time under rule 1.090 tolled
the thirty-day period in which she was authorized to accept the proposal.
According to Ms. Koppel, the period remained tolled until the trial court
denied her motion for enlargement of time on December 5, 2013. Ms. Koppel
coupled her response to the motion to strike with a motion to enforce the
settlement that she asserted was created by her acceptance of Ms. Ochoa’s
proposal for settlement.
accepting the proposal for settlement on grounds that it was untimely. Ms.
Koppel opposed the motion and argued that under the Fifth District’s decision
in Goldy, her filing of a motion to enlarge time under rule 1.090 tolled
the thirty-day period in which she was authorized to accept the proposal.
According to Ms. Koppel, the period remained tolled until the trial court
denied her motion for enlargement of time on December 5, 2013. Ms. Koppel
coupled her response to the motion to strike with a motion to enforce the
settlement that she asserted was created by her acceptance of Ms. Ochoa’s
proposal for settlement.
After a hearing, the trial court agreed that Ms. Koppel’s
filing of a motion to enlarge time tolled the time she had to accept the
settlement proposal, denied the motion to strike the notice of acceptance, and
granted the motion to enforce settlement. The trial court then entered a final
judgment dismissing Ms. Ochoa’s case with prejudice based upon the proposal and
acceptance. Ms. Ochoa timely appealed.
filing of a motion to enlarge time tolled the time she had to accept the
settlement proposal, denied the motion to strike the notice of acceptance, and
granted the motion to enforce settlement. The trial court then entered a final
judgment dismissing Ms. Ochoa’s case with prejudice based upon the proposal and
acceptance. Ms. Ochoa timely appealed.
II.
This case presents the question of whether the filing of a
motion under rule 1.090 to enlarge the time to accept a proposal for settlement
automatically tolls the thirty-day period for accepting that proposal until the
motion to enlarge is decided.1 The issue is thus one that requires
construction of a rule of civil procedure. Our review is de novo. Saia Motor
Freight Line, Inc. v. Reid, 930 So. 2d 598, 599 (Fla. 2006).
motion under rule 1.090 to enlarge the time to accept a proposal for settlement
automatically tolls the thirty-day period for accepting that proposal until the
motion to enlarge is decided.1 The issue is thus one that requires
construction of a rule of civil procedure. Our review is de novo. Saia Motor
Freight Line, Inc. v. Reid, 930 So. 2d 598, 599 (Fla. 2006).
A.
Rule 1.442 governs the procedures by which proposals for
settlement are made and accepted or rejected. See also Audiffred v.
Arnold, 161 So. 3d 1274, 1277 (Fla. 2015). As relevant here, rule
1.442(f)(1) provides that “[a] proposal shall be deemed rejected unless
accepted by delivery of a written notice of acceptance within 30 days after
service of the proposal.” In addition, it provides that the provisions of
Florida Rule of Judicial Administration 2.514(b), which grant five additional
days to act if service of the document requiring the act is made by mail or
email, “do not apply to this subdivision.” The rule thus sets a hard thirty-day
deadline after which, unless accepted, a proposal for settlement is deemed by
the rule to have been rejected.
settlement are made and accepted or rejected. See also Audiffred v.
Arnold, 161 So. 3d 1274, 1277 (Fla. 2015). As relevant here, rule
1.442(f)(1) provides that “[a] proposal shall be deemed rejected unless
accepted by delivery of a written notice of acceptance within 30 days after
service of the proposal.” In addition, it provides that the provisions of
Florida Rule of Judicial Administration 2.514(b), which grant five additional
days to act if service of the document requiring the act is made by mail or
email, “do not apply to this subdivision.” The rule thus sets a hard thirty-day
deadline after which, unless accepted, a proposal for settlement is deemed by
the rule to have been rejected.
Rule 1.090(b) governs the enlargement of time periods established
by the civil rules. It provides, in relevant part:
by the civil rules. It provides, in relevant part:
When
an act is required or allowed to be done at or within a specified time by order
of court, by these rules, or by notice given thereunder, for cause shown the
court at any time in its discretion (1) with or without notice, may order the
period enlarged if request therefor is made before the expiration of the period
originally prescribed or as extended by a previous order, or (2) upon motion
made and notice after the expiration of the specified period, may permit the
act to be done when failure to act was the result of excusable neglect . . . .
an act is required or allowed to be done at or within a specified time by order
of court, by these rules, or by notice given thereunder, for cause shown the
court at any time in its discretion (1) with or without notice, may order the
period enlarged if request therefor is made before the expiration of the period
originally prescribed or as extended by a previous order, or (2) upon motion
made and notice after the expiration of the specified period, may permit the
act to be done when failure to act was the result of excusable neglect . . . .
The rule does not contain any provision which tolls the
running of the applicable time periods while a motion made pursuant to its
provisions is pending.
running of the applicable time periods while a motion made pursuant to its
provisions is pending.
The rules of civil procedure are to be interpreted in accord
with ordinary principles of statutory construction. Barco v. Sch. Bd. of
Pinellas Cty., 975 So. 2d 1116, 1121 (Fla. 2008); Saia, 930 So. 2d
at 599. The cardinal principle of statutory construction is that a statute must
be given its plain and ordinary meaning and, where that meaning is unambiguous,
the effect that meaning dictates. See Kephart v. Hadi, 932 So. 2d
1086, 1091 (Fla. 2006) (citing Zuckerman v. Alter, 615 So. 2d 661, 663
(Fla. 1993)). That principle resolves this case.
with ordinary principles of statutory construction. Barco v. Sch. Bd. of
Pinellas Cty., 975 So. 2d 1116, 1121 (Fla. 2008); Saia, 930 So. 2d
at 599. The cardinal principle of statutory construction is that a statute must
be given its plain and ordinary meaning and, where that meaning is unambiguous,
the effect that meaning dictates. See Kephart v. Hadi, 932 So. 2d
1086, 1091 (Fla. 2006) (citing Zuckerman v. Alter, 615 So. 2d 661, 663
(Fla. 1993)). That principle resolves this case.
The texts of rules 1.090 and 1.442 are unambiguous in that
neither contains language that could in any way be construed as providing that
the time to accept a proposal for settlement is tolled when a motion to enlarge
the time to do so is filed. Apart from providing that the thirty-day period is
not extended when service is by mail or email, rule 1.442 says nothing about
the computation or enlargement of time. Rule 1.090 provides that a party may
seek to have the time in which an act must be performed enlarged, but such an
extension requires an order of the court, the exercise of the trial judge’s
discretion, and a showing by the movant that grounds for an enlargement exist
— i.e., cause shown and, in the case of motions made after the expiration of
the time period, excusable neglect. It too contains no provision tolling time
while a motion for enlargement is pending.
neither contains language that could in any way be construed as providing that
the time to accept a proposal for settlement is tolled when a motion to enlarge
the time to do so is filed. Apart from providing that the thirty-day period is
not extended when service is by mail or email, rule 1.442 says nothing about
the computation or enlargement of time. Rule 1.090 provides that a party may
seek to have the time in which an act must be performed enlarged, but such an
extension requires an order of the court, the exercise of the trial judge’s
discretion, and a showing by the movant that grounds for an enlargement exist
— i.e., cause shown and, in the case of motions made after the expiration of
the time period, excusable neglect. It too contains no provision tolling time
while a motion for enlargement is pending.
The practical effect of interpreting the rule to provide
automatic tolling upon the filing of a motion for enlargement is to give the
party filing the motion additional time under circumstances other than those
the rule contemplates. The filing of the motion grants a party a de facto
enlargement of time — without the judicial supervision, exercise of discretion,
and substantive showings rule 1.090 requires — until the motion is decided.2 Neither rule contains any textual
indication that this result was intended.
automatic tolling upon the filing of a motion for enlargement is to give the
party filing the motion additional time under circumstances other than those
the rule contemplates. The filing of the motion grants a party a de facto
enlargement of time — without the judicial supervision, exercise of discretion,
and substantive showings rule 1.090 requires — until the motion is decided.2 Neither rule contains any textual
indication that this result was intended.
Accordingly, we hold that the filing of a rule 1.090 motion
to enlarge time to accept a proposal for settlement under rule 1.442 does not
toll the thirty-day acceptance period between the date of the proposal and when
it is deemed rejected. Rule 1.442(f)(1) sets a hard thirty-day deadline for
acceptances, and rule 1.090 authorizes enlargements but does not provide for
tolling. To hold that a motion to enlarge the thirty-day period automatically
tolls it until the motion is decided would require us to insert the necessary
text into one or the other of the rules where that text does not in fact exist.
That exercise is foreclosed to us. Cf. Hayes v. State, 750 So. 2d
1, 4 (Fla. 1999) (“We are not at liberty to add words to statutes that were not
placed there by the Legislature.”); FINR II, Inc. v. Hardee Cty., 164
So. 3d 1260, 1264 (Fla. 2d DCA), rev. granted, 182 So. 3d 632 (Fla.
2015) (holding that a court may not “rewrite the statute to insert an
additional requirement not placed there by the legislature”).
to enlarge time to accept a proposal for settlement under rule 1.442 does not
toll the thirty-day acceptance period between the date of the proposal and when
it is deemed rejected. Rule 1.442(f)(1) sets a hard thirty-day deadline for
acceptances, and rule 1.090 authorizes enlargements but does not provide for
tolling. To hold that a motion to enlarge the thirty-day period automatically
tolls it until the motion is decided would require us to insert the necessary
text into one or the other of the rules where that text does not in fact exist.
That exercise is foreclosed to us. Cf. Hayes v. State, 750 So. 2d
1, 4 (Fla. 1999) (“We are not at liberty to add words to statutes that were not
placed there by the Legislature.”); FINR II, Inc. v. Hardee Cty., 164
So. 3d 1260, 1264 (Fla. 2d DCA), rev. granted, 182 So. 3d 632 (Fla.
2015) (holding that a court may not “rewrite the statute to insert an
additional requirement not placed there by the legislature”).
Our holding finds additional support in the fact that when
the supreme court has intended that the filing of a motion should toll time, it
has not had difficulty expressing that intention. Under Florida Rule of
Appellate Procedure 9.300(b), the filing of a motion to enlarge time
automatically “toll[s] the time schedule of any proceeding in the court until
disposition of the motion.” Because the supreme court knows how to provide for
tolling when that is desired, it seems unlikely that the omission of a tolling
provision in rules 1.090 and 1.442 was unintentional. Cf. Cason v.
Fla. Dep’t of Mgmt. Servs., 944 So. 2d 306, 315 (Fla. 2006) (“[W]e have
pointed to language in other statutes to show that the Legislature ‘knows how
to’ accomplish what it has omitted in the statute in question.” (quoting Rollins
v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000))).
the supreme court has intended that the filing of a motion should toll time, it
has not had difficulty expressing that intention. Under Florida Rule of
Appellate Procedure 9.300(b), the filing of a motion to enlarge time
automatically “toll[s] the time schedule of any proceeding in the court until
disposition of the motion.” Because the supreme court knows how to provide for
tolling when that is desired, it seems unlikely that the omission of a tolling
provision in rules 1.090 and 1.442 was unintentional. Cf. Cason v.
Fla. Dep’t of Mgmt. Servs., 944 So. 2d 306, 315 (Fla. 2006) (“[W]e have
pointed to language in other statutes to show that the Legislature ‘knows how
to’ accomplish what it has omitted in the statute in question.” (quoting Rollins
v. Pizzarelli, 761 So. 2d 294, 298 (Fla. 2000))).
B.
In Goldy, the Fifth District held that a motion to
enlarge the time to accept a proposal for settlement tolls the thirty-day
period until the motion is decided. 692 So. 2d at 228. It reasoned that where
time limitations are strictly construed, the filing of a motion to enlarge time
should toll the applicable time period. Id. Doing so with regard to
proposals for settlement made sense to the Fifth District because it avoids
punishing a party with a “sincere desire to settle” pursuant to a proposal for
settlement and a legitimate need for an enlargement of time. Id.
enlarge the time to accept a proposal for settlement tolls the thirty-day
period until the motion is decided. 692 So. 2d at 228. It reasoned that where
time limitations are strictly construed, the filing of a motion to enlarge time
should toll the applicable time period. Id. Doing so with regard to
proposals for settlement made sense to the Fifth District because it avoids
punishing a party with a “sincere desire to settle” pursuant to a proposal for
settlement and a legitimate need for an enlargement of time. Id.
Our court has twice discussed Goldy. In Pinnacle
Corp. of Central Florida, Inc. v. R.L. Jernigan Sandblasting & Painting,
Inc., 718 So. 2d 1265, 1266 (Fla. 2d DCA 1998), which was an appeal from a
final default judgment, we cited it without analysis for the proposition that a
defendant’s motion to extend time to answer a complaint “effectively
extend[ed]” the time it had to do so. That statement is dictum; we resolved the
case on the basis that the default was improper under rule 1.500 because the
defendant’s answer was on file before an order of default was entered. Id.
In Donohoe v. Starmed Staffing, Inc., 743 So. 2d 623 (Fla. 2d DCA 1999),
we reversed an order denying an award of fees and costs based on a proposal for
settlement because the proposal was not timely accepted. We rejected the
defendant’s argument under Goldy that its motion to enlarge the time to
accept or reject the proposal tolled the thirty-day period finding that Goldy
was distinguishable on the facts. Id. at 625. Neither Pinnacle
nor Donohoe held that Goldy represented the law of this district.
Nor did either case analyze the validity of its reasoning. We now do so for the
first time, and we respectfully disagree with our sister court.
Corp. of Central Florida, Inc. v. R.L. Jernigan Sandblasting & Painting,
Inc., 718 So. 2d 1265, 1266 (Fla. 2d DCA 1998), which was an appeal from a
final default judgment, we cited it without analysis for the proposition that a
defendant’s motion to extend time to answer a complaint “effectively
extend[ed]” the time it had to do so. That statement is dictum; we resolved the
case on the basis that the default was improper under rule 1.500 because the
defendant’s answer was on file before an order of default was entered. Id.
In Donohoe v. Starmed Staffing, Inc., 743 So. 2d 623 (Fla. 2d DCA 1999),
we reversed an order denying an award of fees and costs based on a proposal for
settlement because the proposal was not timely accepted. We rejected the
defendant’s argument under Goldy that its motion to enlarge the time to
accept or reject the proposal tolled the thirty-day period finding that Goldy
was distinguishable on the facts. Id. at 625. Neither Pinnacle
nor Donohoe held that Goldy represented the law of this district.
Nor did either case analyze the validity of its reasoning. We now do so for the
first time, and we respectfully disagree with our sister court.
We are unable to reconcile the Fifth District’s holding with
the requirement that the civil rules be interpreted in accord with ordinary
principles of statutory construction. As we have described, although rule 1.090
authorizes enlargements of time, the applicable rules do not provide for
tolling pending a decision on a motion for enlargement — whether of a strictly
construed time period or otherwise. By limiting its tolling rule to time
periods that are strictly construed, the Goldy court appears to have
assumed (correctly, in our view) that tolling would not ordinarily be
authorized or permitted when a party files a motion to enlarge a deadline. Its
decision that time is nonetheless automatically tolled whenever the time limit
is one that is strictly construed thus seems more like a revision of the rules
to meet the perceived equities of a case — here, the protection of a party
with a sincere desire to settle — than it does an exercise in determining what
the rules actually authorize and what they do not.3
the requirement that the civil rules be interpreted in accord with ordinary
principles of statutory construction. As we have described, although rule 1.090
authorizes enlargements of time, the applicable rules do not provide for
tolling pending a decision on a motion for enlargement — whether of a strictly
construed time period or otherwise. By limiting its tolling rule to time
periods that are strictly construed, the Goldy court appears to have
assumed (correctly, in our view) that tolling would not ordinarily be
authorized or permitted when a party files a motion to enlarge a deadline. Its
decision that time is nonetheless automatically tolled whenever the time limit
is one that is strictly construed thus seems more like a revision of the rules
to meet the perceived equities of a case — here, the protection of a party
with a sincere desire to settle — than it does an exercise in determining what
the rules actually authorize and what they do not.3
Even if this approach to interpreting the civil rules might
be appropriate in some circumstances — we do not mean to imply that it is —
it is particularly unjustified here because rule 1.090, as drafted, provides a
trial court with ample discretion to address the perceived equities with which Goldy
was concerned. See Morales v. Sperry Rand Corp., 601 So. 2d 538,
540 (Fla. 1992) (rejecting the notion that former Florida Rule of Civil
Procedure 1.070(j) was “unduly harsh” because rule 1.090(b) provides trial
courts with broad discretion to extend deadlines if reasonable grounds exist), superseded
by rule on other grounds as stated in Thomas v. Silvers, 748 So. 2d
263 (Fla. 1999). If a party that is sincerely interested in settlement has a
bona fide need for more time to accept or reject it, the court has the
discretion to rectify that problem by granting an enlargement of time. If the
party is unable to get a motion seeking an enlargement heard before the time
expires, but the trial court determines that an enlargement is warranted, its
decision to grant the enlargement rectifies the problem.4 If, on the other hand, the trial
court determines that the extension was unwarranted, there is no equitable
problem for a tolling rule to solve because an extension was not merited in the
first place. In sum, the court has sufficient room to address the problem of
the party who is sincerely interested in settlement within the confines of
existing rules.
be appropriate in some circumstances — we do not mean to imply that it is —
it is particularly unjustified here because rule 1.090, as drafted, provides a
trial court with ample discretion to address the perceived equities with which Goldy
was concerned. See Morales v. Sperry Rand Corp., 601 So. 2d 538,
540 (Fla. 1992) (rejecting the notion that former Florida Rule of Civil
Procedure 1.070(j) was “unduly harsh” because rule 1.090(b) provides trial
courts with broad discretion to extend deadlines if reasonable grounds exist), superseded
by rule on other grounds as stated in Thomas v. Silvers, 748 So. 2d
263 (Fla. 1999). If a party that is sincerely interested in settlement has a
bona fide need for more time to accept or reject it, the court has the
discretion to rectify that problem by granting an enlargement of time. If the
party is unable to get a motion seeking an enlargement heard before the time
expires, but the trial court determines that an enlargement is warranted, its
decision to grant the enlargement rectifies the problem.4 If, on the other hand, the trial
court determines that the extension was unwarranted, there is no equitable
problem for a tolling rule to solve because an extension was not merited in the
first place. In sum, the court has sufficient room to address the problem of
the party who is sincerely interested in settlement within the confines of
existing rules.
On the other hand, however, Goldy‘s holding that a
motion to enlarge time automatically tolls time where the subject deadline is
strictly construed seems to us inconsistent with the concept of a strictly
construed deadline. Allowing a party to suspend the occurrence of a deadline
through the simple act of putting a piece of paper in the court file tends to
liberalize rather than strictly enforce that deadline. Moreover, Goldy‘s
tolling rule has obvious practical detriments. Dissenting from the Goldy
majority’s holding on tolling, Judge Griffin summarized them as follows:
motion to enlarge time automatically tolls time where the subject deadline is
strictly construed seems to us inconsistent with the concept of a strictly
construed deadline. Allowing a party to suspend the occurrence of a deadline
through the simple act of putting a piece of paper in the court file tends to
liberalize rather than strictly enforce that deadline. Moreover, Goldy‘s
tolling rule has obvious practical detriments. Dissenting from the Goldy
majority’s holding on tolling, Judge Griffin summarized them as follows:
Any time, including the day
before the offer is due to expire, the motion to extend the deadline is simply
filed. The deadline thus does not ever arrive and the offeror does not get the
benefit of [rule 1.442], nor can he withdraw the offer without losing the
benefit of the rule. If the filing of the motion to extend prevents expiration,
the offeree will likely always file one since there is no downside to doing so.
If the motion is ever called up for hearing, the worst that can happen is the
motion is denied and all that extra time will have been bought during which the
offer (which cannot be “withdrawn” without losing the right to fees) can be
accepted at leisure.
before the offer is due to expire, the motion to extend the deadline is simply
filed. The deadline thus does not ever arrive and the offeror does not get the
benefit of [rule 1.442], nor can he withdraw the offer without losing the
benefit of the rule. If the filing of the motion to extend prevents expiration,
the offeree will likely always file one since there is no downside to doing so.
If the motion is ever called up for hearing, the worst that can happen is the
motion is denied and all that extra time will have been bought during which the
offer (which cannot be “withdrawn” without losing the right to fees) can be
accepted at leisure.
692 So. 2d at 228-29 (Griffin, J., concurring in part and
dissenting in part). The existence of these problems is all the more reason to
apply the rules as they are written, leave enlargements of time to the
discretion of the trial judge in accord with those rules, and leave any broader
policy issues with the rules to the body to which the law commits them — the
supreme court.
dissenting in part). The existence of these problems is all the more reason to
apply the rules as they are written, leave enlargements of time to the
discretion of the trial judge in accord with those rules, and leave any broader
policy issues with the rules to the body to which the law commits them — the
supreme court.
III.
We hold that the filing of a motion to enlarge time to
respond to a proposal for settlement does not automatically toll that time
pending a decision on the motion. Accordingly, we reverse the final judgment,
remand for further proceedings consistent with this opinion, and certify
conflict with Goldy.
respond to a proposal for settlement does not automatically toll that time
pending a decision on the motion. Accordingly, we reverse the final judgment,
remand for further proceedings consistent with this opinion, and certify
conflict with Goldy.
Reversed; remanded; conflict certified. (SILBERMAN and
BADALAMENTI, JJ., Concur.)
BADALAMENTI, JJ., Concur.)
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1Two other issues are potentially
implicated here. The first is whether, in light of the fact that the thirty-day
period after which a settlement proposal is deemed rejected is also statutory
under section 768.79, that deadline is extendable under rule 1.090 at all. Compare
BNP Paribas v. Wynne, 944 So. 2d 1004, 1006 (Fla. 4th DCA 2005) (holding
that rule 1.090 “is inapplicable to procedural deadlines under a special
statutory proceeding”), with Schmidt v. Fortner, 629 So. 2d 1036,
1038 n.3 (Fla. 4th DCA 1993) (“Because the time for responding to an offer of
judgment under section 768.79 is now governed by rule 1.442, there is no reason
why rule 1.090(b) would not authorize the enlargement . . . .”). The second is
whether, because the proposal itself provided that it would be “withdrawn”
within thirty days and Ms. Ochoa did not agree to enlarge that time, the offer
was by its terms insusceptible of acceptance notwithstanding any enlargement of
the thirty-day period under rule 1.442. The case can be fully resolved on the
question of tolling addressed in the text, and neither additional issue is
thoroughly presented by the briefs. Therefore, we express no opinion on either
question.
implicated here. The first is whether, in light of the fact that the thirty-day
period after which a settlement proposal is deemed rejected is also statutory
under section 768.79, that deadline is extendable under rule 1.090 at all. Compare
BNP Paribas v. Wynne, 944 So. 2d 1004, 1006 (Fla. 4th DCA 2005) (holding
that rule 1.090 “is inapplicable to procedural deadlines under a special
statutory proceeding”), with Schmidt v. Fortner, 629 So. 2d 1036,
1038 n.3 (Fla. 4th DCA 1993) (“Because the time for responding to an offer of
judgment under section 768.79 is now governed by rule 1.442, there is no reason
why rule 1.090(b) would not authorize the enlargement . . . .”). The second is
whether, because the proposal itself provided that it would be “withdrawn”
within thirty days and Ms. Ochoa did not agree to enlarge that time, the offer
was by its terms insusceptible of acceptance notwithstanding any enlargement of
the thirty-day period under rule 1.442. The case can be fully resolved on the
question of tolling addressed in the text, and neither additional issue is
thoroughly presented by the briefs. Therefore, we express no opinion on either
question.
2We acknowledge that tolling and
enlargement are different in that tolling suspends the running of a time period
while enlargement adds time to it. See Hankey v. Yarian, 755 So.
2d 93, 98 (Fla. 2000). The important point for our interpretation of these rules,
however, is that the effect in a case like this is the same; however named, the
result is that a party gets more time than it would otherwise have to do an
act.
enlargement are different in that tolling suspends the running of a time period
while enlargement adds time to it. See Hankey v. Yarian, 755 So.
2d 93, 98 (Fla. 2000). The important point for our interpretation of these rules,
however, is that the effect in a case like this is the same; however named, the
result is that a party gets more time than it would otherwise have to do an
act.
3Goldy
cited two decisions for the proposition that the filing of a motion to enlarge
time tolls deadlines that are strictly construed — Morales v. Sperry Rand
Corp., 601 So. 2d 538 (Fla. 1992), and Nationwide Mutual Fire Insurance
Co. v. Holmes, 352 So. 2d 1233 (Fla. 4th DCA 1977). Morales said
that the 120-day deadline to effect service under rule 1.070(j) is to be
strictly construed and that rule 1.090 is available to enlarge that deadline in
appropriate cases. 601 So. 2d at 539-40. Holmes held that it was error
for a trial court to allow the substitution of a personal representative for a
deceased party where no motion for substitution was made within ninety days as
required by rule 1.260(a)(1) and, in so holding, noted that “[t]here is no
indication that Plaintiff moved for an enlargement” of the deadline. 352 So. 2d
at 1234. Neither case said, let alone held, that the filing of a motion to
enlarge a strictly construed deadline automatically tolls time.
cited two decisions for the proposition that the filing of a motion to enlarge
time tolls deadlines that are strictly construed — Morales v. Sperry Rand
Corp., 601 So. 2d 538 (Fla. 1992), and Nationwide Mutual Fire Insurance
Co. v. Holmes, 352 So. 2d 1233 (Fla. 4th DCA 1977). Morales said
that the 120-day deadline to effect service under rule 1.070(j) is to be
strictly construed and that rule 1.090 is available to enlarge that deadline in
appropriate cases. 601 So. 2d at 539-40. Holmes held that it was error
for a trial court to allow the substitution of a personal representative for a
deceased party where no motion for substitution was made within ninety days as
required by rule 1.260(a)(1) and, in so holding, noted that “[t]here is no
indication that Plaintiff moved for an enlargement” of the deadline. 352 So. 2d
at 1234. Neither case said, let alone held, that the filing of a motion to
enlarge a strictly construed deadline automatically tolls time.
4The problem in Goldy was that
after the proposal was automatically withdrawn upon the expiration of the
deadline, the motion to enlarge time filed by the other party “was never heard
by the court in view of [the] absolute withdrawal of the offer.” 692 So. 2d at
226. The Goldy opinion does not state whether the party seeking the
enlargement failed to seek a hearing. Because rule 1.090 by its terms requires
that the court actually grant a party an extension of time in its discretion —
and does not indicate that tolling is accomplished by the mere filing of the
motion itself — we believe that the approach most consistent with the rules is
to require the party seeking the enlargement of time to set a hearing or insist
on a ruling, whichever may be required, and not to create an automatic tolling
rule that springs into effect upon the filing of a motion for enlargement. See,
e.g., Three Lions Constr., Inc. v. The Namm Grp., Inc., 183 So. 3d
1119, 1119-20 (Fla. 3d DCA 2015) (rejecting the argument that a motion to
enlarge time under rule 1.090(b) tolled the time to respond to a proposal for
settlement where the party seeking the enlargement “did not obtain a hearing on
the motion prior to the expiration of the time for acceptance of the Proposal”
and the motion was not otherwise agreed to by the parties).
after the proposal was automatically withdrawn upon the expiration of the
deadline, the motion to enlarge time filed by the other party “was never heard
by the court in view of [the] absolute withdrawal of the offer.” 692 So. 2d at
226. The Goldy opinion does not state whether the party seeking the
enlargement failed to seek a hearing. Because rule 1.090 by its terms requires
that the court actually grant a party an extension of time in its discretion —
and does not indicate that tolling is accomplished by the mere filing of the
motion itself — we believe that the approach most consistent with the rules is
to require the party seeking the enlargement of time to set a hearing or insist
on a ruling, whichever may be required, and not to create an automatic tolling
rule that springs into effect upon the filing of a motion for enlargement. See,
e.g., Three Lions Constr., Inc. v. The Namm Grp., Inc., 183 So. 3d
1119, 1119-20 (Fla. 3d DCA 2015) (rejecting the argument that a motion to
enlarge time under rule 1.090(b) tolled the time to respond to a proposal for
settlement where the party seeking the enlargement “did not obtain a hearing on
the motion prior to the expiration of the time for acceptance of the Proposal”
and the motion was not otherwise agreed to by the parties).
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