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.

Have You Seen the Second DCA’s New Procedures on Oral Argument?

Jared and Judges of Second D C A at Practicing Before the Second D C A C L E.

Jared Krukar introduces the judges of the court at the 2017 Practicing Before the Second DCA CLE presented by the Florida Bar Appellate Practice Section. Photo by Kristin Norse.

The Second District Court of Appeal has long been known for its liberality in granting oral argument, but also had a discrete list of types of cases in which it would almost never do so.  However, the Court recently updated its Internal Operating Procedures[.pdf] (“IOPs”) to reduce the list of exceptions and leave the judges with more express discretion.

The prior Internal Operating Procedures expressly listed six types of cases where oral argument was “not generally permitted.”

The IOPs were last amended on October 15, 2015.  In that version, the Court stated it would generally not permit oral argument in appeals in which a pro se party is incarcerated, reemployment assistance appeals, original proceedings, postconviction appeals, 9.130 final and nonfinal appeals, and motions.

The Court always had discretion to grant oral argument in any of these cases, but rarely deviated from the list.

The new Internal Operating Procedures reduce the exceptions, but expand apparent discretion.

The revised IOPs, effective as of April 12, 2018, no longer expressly exclude from oral argument original proceedings, final and nonfinal 9.130 appeals, nonsummary postconviction appeals where the parties are represented, reemployment assistance appeals, or motions.

However, the IOPs added new language that elucidates the Court will likely apply discretion on a case-by-case basis more than it has in the past:

Requests for oral argument in expedited proceedings, including termination of parental rights and dependency cases, are presented first to the merits panel.  Upon the panel’s decision to grant oral argument, the clerk will set the case on an expedited basis.

Other than expedited proceedings, cases are set for oral argument prior to the assigned panel’s review.  As such, the cases are provisionally set for oral argument.  Should the panel of assigned judges decide unanimously that the court will not benefit from oral argument, the clerk will be directed to notify the attorneys or parties by order that the argument is cancelled.  An order cancelling argument for this reason will generally issue no later than two weeks before the date of the scheduled argument.

While the current IOPs still say that “the court permits oral argument as a matter of course in most proceedings,” this new language makes clear that the Court is aware of its discretion and will inevitably use it to reject oral argument when it deems fit to do so.

Does this mean more or less oral arguments in the Second District?

Well, according to the IOPs, it now appears that one can seek oral argument in nonfinal appeals, original proceedings, and certain other cases whereas before extraordinary measures would need to be taken.

But don’t jump the gun just yet.  The Second District’s “Notice to Attorneys and Parties[.pdf]” still contains a list of types of cases excluded from oral argument, and it still matches what the old IOPs said.  Presumably the Second District will be updating the notice to match the new IOPs, but for now, it governs what parties can file.  Also, check out our post on the Second District’s Practice Preferences as well to be sure you’re complying with all current requirements.

If you have a case on appeal and aren’t sure whether oral argument is available, or whether it is the best option for you, contact us and ask.  There are pros and cons to every decision like this, and we can help you make the right choice for you and your case.

Appeals 101: Why Rendition Matters

Rendition is a critical concept in Florida appeals, but not everyone understands its importance. The Fourth District this week in Guy v. Plaza Home Mortgage, Inc., No. 4D17-3335 (April 25, 2018) [.pdf] chided the Broward County Clerk’s foreclosure department for backdating final judgments when entering them on the Court docket. The decision offers a good reminder of the importance of rendition in appellate practice, and the reasons it matters.

Rendered Before Entered?

The case came to the court in an unusual procedural posture — a pro se appellant moved the court to correct the record because while the summary judgment hearing was held at 1:30 pm, the judgement’s electronic stamp “indicates that it was filed with the Broward County Clerk…at 8:35 a.m., nearly five hours hours earlier.”

The Broward Clerk explained that when the clerk’s office received the order from chambers, often a day or more after it was signed, its practice was to scan the item — which added a time and date stamp — then change the date but not the time to the date the order was signed by the Court. The result in this case is an order that appears to be rendered prior to being signed. And the result in general is that the real time docket on the date of signature does not show the order, and may not for several days. Then the order will all of a sudden “appear” that the item was added to the docket on the date the order was signed, whether or not the clerk’s office processed it on that day.

Why Rendition Matters

Let’s start with the definition of rendition: “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Fla. R. App. P. 9.020(i). Rendition can sometimes be tolled, such as when “there has been filed in the lower tribunal an authorized and timely motion for new trial, for rehearing” and a few other specific types of motions. When such a motion has been filed, the order is not considered rendered “until the filing of a signed, written order disposing of the last of such motions.” Id.

The problem, as the Fourth District explained, is that “[t]he time for appeal runs from the date of rendition, not the date the judgment is signed.” See Fla. R. App. P. 9.110(b). “By backdating the electronic filing stamp, the clerk changes the rendition date, possibly to the prejudice of an appellant.”

The Court pointed out that in this case, “appellant’s appellate rights were not affected,” and so the Court denied the motion to correct the record. The Court concluded “We nevertheless disapprove of the this practice as it is inconsistent with the appellate rules.”

How Backdating Rendition Affects Appellate Rights

Kudos to the Fourth District for calling out this potentially prejudicial practice. The time for appeal starts running from the date of rendition, and a backdated docket entry can unexpectedly shorten the time for appeal. We’ve seen a clerk wait 25 days to enter a final order on the docket, and then send the backdated rendered order by mail, leaving the attorney with no time to even discuss appeal with the client. The clerk’s docket is supposed even the playing field and allow all to know when an order is rendered and therefore appealable. Backdating leaves a party without notice and potentially deprives the party of the right to appeal.

The Takeaway on Rendition

When you’re not sure if an order has been rendered, it’s never a bad move to calendar your deadlines based on the date of signature, and regularly check the docket until you are sure of a rendition date. While a premature appeal can be subject to dismissal, if the order is rendered before the appellate court catches that an appeal was prematurely filed, “the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order.” See Fla. R. App. P. 9.110(l).

About Appeals 101

This post is part of our continuing Appeals 101 series. Click the link to find all of our posts on the basics of litigating an appeal.