30 Days Means 30 Days When It Comes To Proposals For Settlement

(1917) Going-Going-Gone!. United States, 1917. [Photograph] Retrieved from the Library of Congress, https://www.loc.gov/item/2002695576/.

Since 2016, the Second and Fifth Districts have been in conflict as to whether a motion for extension of time to respond to a proposal for settlement (PFS) under section 768.79, Florida Statutes, and Florida Rules of Civil Procedure 1.090  and 1.442 [.pdf] will toll the time to respond while the motion remains pending.  The Supreme Court in  Koppel v. Ochoa [.pdf] has now settled the conflict, holding that no motion will toll time for responding to a PFS.

The Conflict between the Second and Fifth Districts.

In 1997, the Fifth District in Goldy v. Corbett Crane Services held that a motion to enlarge time to respond to a proposal for settlement tolled the responsive period until the motion could be heard.  The court noted that there was no prejudice by applying this rule, because the offerror “always has the power to withdraw the offer at any time before acceptance if the [offeror’s] position changes.”

In 2016’s Ochoa v. Koppel [.pdf], the Second District considered a situation where a party accepted a proposal for settlement after 30 days had lapsed, but where a motion for extension of time had been filed before the 30-day mark and had not yet been heard.  The trial court enforced the settlement.  On appeal, the Second District reversed.  The court held that while a party may seek and obtain an extension of time to respond to a proposal for settlement under rule 1.090, that the motion itself did not create any tolling effect.  The Second District certified conflict with Goldy.

The Supreme Court agrees with the Second, disapproves the Fifth.

The Supreme Court took review of the conflict between Ochoa and Goldy to consider “whether the filing of a motion under Florida Rule of Civil Procedure 1.090 to enlarge the time to accept a proposal for settlement automatically tolls the 30-day deadline for accepting the proposal until the motion is decided.”  Koppel v. Ochoa.  It conducted a strict analysis of section 768.79; Rule 1.442 and Rule 1.090, refusing to consider or apply other rules because, it held, neither rule 1.090; nor 1.442; were ambiguous so the rules of construction were inapplicable.

Ultimately, the court recognized that both sides had valid concerns about abuse of the process that might support the logic of a tolling rule, but that the rules simply did not allow tolling.  It approved the Second District’s decision.

This decision impacts anyone with a PFS in a pending case in any Florida court, as well as anyone filing any extension of time in the trial court.

The Supreme Court took special care to rule that its decision would apply both prospectively and retroactively.  Thus, anyone with a pending PFS issue in the Fifth DCA that has relied on Goldy should take special note–you may have already lost your right to accept a proposal for settlement if more than 30 days has passed without a court order granting an extension.

The Supreme Court’s main ruling was also rather broad, and likely intentionally so.  It expressly stated Rules 1.090 and 1.442 do not, and did not, provide for tolling of the time periods by the filing of a motion for extension and are applicable to this and all other cases.”  Thus, no motion for extension of time will ever toll time in the trial court, whether it involves a PFS or a completely different proceeding (unless the rule specific to your proceeding provides for it).

These are dangerous traps for the unwary, both trial attorneys who are accustomed to trial judges allowing tolling as a matter of course, and for appellate practitioners in trial courts because they are accustomed to working with the Florida Rules of Appellate Procedure (which do provide for tolling on most motions on appeal, see rule 9.300.  Don’t get caught by this new trap!  If you have any concerns about how this new decision may impact your trial court case, give us a call and we can help.

Full disclosure: Jared Krukar was involved in the litigation of this case at the Second District Court of Appeal level.

Evidence Required When Seeking Defensive Summary Judgment

I love it when I get to report on my own victories. Today the Fifth District reversed a trial court’s grant of summary judgment in a personal injury case, on two important grounds. From a procedural nerd standpoint, the Court correctly held that the defendants could not get summary judgment by simply quoting the plaintiff’s deposition and arguing “he doesn’t have evidence.” The Court reiterated that “[t]he lack of convincing evidence in favor of a party opposing summary judgment is not the same as conclusive evidence in favor of the party seeking summary judgment.” A defendant seeking summary judgment “cannot simply allege that the plaintiff’s evidence may not be sufficient, but must in fact present evidence “establishing a lack of liability on their part.” The Court therefore reversed the grant of summary judgment to the parties that simply argued “he doesn’t have any evidence.”

But just as important is the Court’s interpretation of the release signed by the Plaintiff. The injury arose when Plaintiff Owen Peterson attended a paintball competition and surrounding expo at Disney World. He was hit in the head at the expo, and went to the hospital for his injuries. He was cleared for paintball, and so came back and the next day signed a release so he could participate in the paintball competition, which he did. Once he got home, he realized his head injury was worse than he initially realized, and eventually sued Disney and the vendor whose item hit him in the head. Disney sought summary judgment based on the release, which stated that it applied to injuries sustained “before, during and after” participation in the Event. The court ruled:

Our analysis of this post-claim release must evaluate whether both parties knowingly gave clear and valid consideration in the Waiver. The Waiver specifically stated, “In consideration of my and/or my child or ward’s participation in the Sport Type(s) and Event referenced above and any related activities (collectively, the ‘Event’),
wherever the Event may occur, I agree to assume all risks incidental to such participation.” The Waiver further notified the “Participant” that by signing the Waiver he declared himself “physically fit” and possessing “the skill level required to participate in the Event and/or any such activities.” This language clearly focused the signatory on the paintball competition, not the vendor area. The parties further admitted that Disney did not require people accessing only the vendor area to sign the Waiver.

We reject Disney’s argument that the Waiver’s reference to injuries suffered “before, during or after such participation” included the November 8 incident. The Waiver failed to clarify that it included any incident that occurred before its signing, and thus failed to notify Peterson of a post-claim release.

The case is Peterson v. Flare Fittings, Inc., Case No. 5D13-2235 (5th DCA Oct. 9, 2015)[.pdf]. This was one of the first cases I took on when I opened the doors to DPW Legal back in 2013. As the opinion notes, Peterson opposed the case pro se, after his prior attorney withdrew on the eve of trial soon after the Defendants filed their motions for summary judgment. To turn a pro se loss into an appellate win is just sweet as can be. So pleased to have gotten such a great result for my client.

Backlogged Clerk’s Office Doesn’t (Necessarily) Thwart Appeal

If you send a notice of appeal to the trial clerk, and they don’t stamp it, is it timely? It may be in the Fifth District, if you can prove that you got it to the clerk on time.

In Ocr-EDS, Inc. v. S & S Enter., Inc., No. 5D09-4330 (March 12, 2010)[.pdf], the Appellant’s Attorney’s secretary swore that she sent the notice of appeal to the Seminole County Clerk of Court via Fedex next day delivery on November 19, and the certificate of service reflected that date as well. She testified by affidavit that she called the clerk’s office to confirm the Notice had been received, and was told it was, it would not be processed for a week, but that the correct date would be on it. A staffer in the clerk’s office testified by affidavit to the authenticity of her signature on the FedEx receipt and that she actually did receive the FedEx package on November 20, which would have been timely. But the notice was not stamped by the clerk’s office until after that date, and so the Appellee filed a motion to dismiss for lack of jurisdiction.

What I find fascinating about this case is the difference of approach between the Fifth DCA and the Fourth in dealing with this issue of late. The Fourth DCA ruled that Fla. R. Civ. P. 1.080(e), which was added in 1984, means that the clerk’s stamp is conclusive of the date of filing of a document. Employing the tenet of statutory interpretation that like statutes should be read in pari materia, the Fifth DCA explained that the trial court has the power to correct clerical mistakes in judgements and “other parts of the record” pursuant to Rule 1.540(a). Dubbing an erroneous time stamp to be “clearly a clerical mistake,” the Court remanded for an evidentiary hearing before the trial court to allow that court the opportunity to determine whether there had been a clerical mistake, and if so, to correct the error. The Court concluded that “A rule that would deny a citizen who has timely sought an appeal his or her
right to appeal based upon a proven mistake by a clerk’s office employee is not
consistent with justice or due process.”

Keep in eye on this issue. With clerk’s offices state wide clearly backlogged, and conflict already certified, it is going to make it’s way up to the Florida Supreme Court sooner rather than later.

Update: These parties have asked the Florida Supreme Court to take up the issue. Keep an eye on Docket No. SC10-849.