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.

Man with a cart full of money to pay for the family law appeal

Appeals 101: How do I Pay my Family Law Appeal Attorney’s Fees?

Family law cases are oftentimes stressful, lengthy, and expensive ordeals that can extend through trial court into the appellate courts.  But the legislature recognizes that such cases are unique, and thus it provides an avenue for seeking some relief from the cost of attorney’s fees for these cases. As part of our continuing Appeals 101 series, here’s the scoop on getting your ex to pay for your family law appeal attorney’s fees — whether you are appealing an equitable distribution, a child custody order, or any other issue related to your marriage dissolution or custody dispute.

Man with a cart full of money to pay for the family law appeal

It can feel like you need a cart full of money to pay for your family law appeal. You may be able to get your ex to cover those costs.

The basis for attorney’s fees in family law appeals

Section 61.16, Florida Statutes, allows a party to ask a court to force the other side to “pay a reasonable amount for attorney’s fees” in some family law cases.  The purpose of the statute “is to ensure that both parties will have a similar ability to obtain competent legal counsel.”  Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997).  “[I]t is not necessary that one spouse be completely unable to pay attorney’s fees for the trial court to require the other spouse to pay those fees.”  Id.

Section 61.16 also applies on appeal.  The statute states “In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous.”  However, the court may also consider what are known as the Rosen factors (for the case from whence they came):  “the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation.”  Rosen v. Rosen, 696 So. 2d 697, 700 (Fla. 1997).

Can I seek attorney’s fees before the appeal is over, or do I have to wait?

Another way family law fees are different is that, rather than having no choice but to wait until the end of the appeal to seek fees, there is a limited avenue for a party to seek fee assistance during the appeal.  Florida Rule of Appellate Procedure 9.600(c)(1) says the trial court has continuing jurisdiction while an appeal is ongoing to enter orders awarding “temporary attorneys’ fees and costs reasonably necessary to prosecute or defend an appeal, or other awards necessary to protect the welfare and rights of any party pending appeal.”  This means that a party can ask the trial court for assistance from the other side to pay for fees as they are being incurred for the appeal.  In practice this procedure can sometimes be problematic, especially when the trial court does not have sufficient time to rule on such a request while the appeal is pending.  See Kasm v. Lynnel, 975 So. 2d 560 (Fla. 2d DCA 2008).

No matter the family law case, or whether a party has sought temporary fees with the trial court, the party that seeks an award of fees for the appeal should timely file a motion for fees with the appellate court under Florida Rule of Appellate Procedure 9.400(b).  Failure to do so may result in waiver of any ability to claim those fees later.  See Rados v. Rados, 791 So. 2d 1130, 1131-32 (Fla. 2d DCA 2001) (“A trial court cannot award appellate attorney’s fees unless the appellate court has authorized such an award.”).  A motion under rule 9.400(b) must be filed no later than the time for service of the reply brief.

How long will I have to wait for an award of attorney’s fees?

Don’t be surprised if the appellate court decides not to ultimately decide your entitlement to fees, instead sending your motion to the trial court.  Unlike trial courts, appellate courts are simply do not have the capability to take evidence.  Evidence may be necessary to determine the parties’ relative financial positions and the other factors discussed above.  Consequently, the appellate court often relies on the trial court to take such evidence and make those determinations for it.  Rados v. Rados, 791 So. 2d 1130 (Fla. 2d DCA 2001) (identifying the many ways that one appellate court handles such motions).

Most importantly, once an appeal is over, the trial court can only consider appellate fees with permission from the appellate court, usually based on a ruling on a timely-filed 9.400(b) motion.  Even if you would otherwise deserve your fees on appeal under the statute or the Rosen factors, the trial court does not have the power to award them for your appellate efforts if the appellate court does not order it to do so. If you are in, or suspect you will be, in a family law appeal, contact us and we can help ensure that any rights you have to fees are properly raised and preserved.

 

Second DCA holds you can get “fees for fees”—if it is in your contract

Ordinarily, where an attorneys’ fee award is available, a party is entitled to fees for litigating the entitlement to those fees, but not the amount.  The Second District Court of Appeal has now recognized that this rule is not absolute, and the language of an attorney fee provision in a contract can provide for a more extensive award.

In Trial Practices, Inc. v. Hahn Loeser & Parkes, LLP, 2D13-6051 & 2D14-86 (Fla. 2d DCA Apr. 12, 2017), Trial Practices (“TPI”) sued its former client for legal consulting services, claiming entitlement to a percentage of the client’s settlement of a third-party lawsuit.  The client prevailed against TPI, and the judgment was affirmed on appeal.

The client then sought an award of attorneys’ fees pursuant to the Consulting Agreement between himself and TPI.  The Consulting Agreement stated:

[the] prevailing party in any action arising from or relating to this agreement will be entitled to recover all expenses of any nature incurred in any way in connection with the matter, whether incurred before litigation, during litigation, in an appeal, . . . or in connection with enforcement of a judgment, including, but not limited to, attorneys’ and experts’ fees.

The trial court entered an award of fees that included a significant amount “attributed to [the client’s] attorney’s litigation of the issue of the amount of attorneys’ fees and costs.”  On appeal, the Second District held that the language of the “Consulting Agreement” was sufficiently broad to encompass this “fees for fees” award.

The Second District held that this case, in which fees were sought pursuant to contract, is distinguished from cases in which fees were sought pursuant to statute—where “fees for fees” is generally unavailable.  The Court also recognized that Florida law allows parties to “freely contract on the issue of attorney[s’] fees,” and that courts are not permitted to rewrite contracts to relieve parties of their obligations.

The Second District also held that attorneys who testified as fact witnesses in the original trial were entitled to receive reasonable compensation for their assistance, and that the “Consulting Agreement” was sufficiently broad to allow an award of overhead expenses as part of a cost award.  It did reverse, in part, for the trial court to itemize a bulk cost award in the judgment, and determine which costs were taxable and which costs were not taxable; and to change the date from which prejudgment was calculated.

In sum, if a party is seeking an award of attorneys’ fees pursuant to a broad contractual provision, the fee award may encompass not only time spent in litigating entitlement to fees, but also to litigating the amount.