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.

Rules Governing Electronic Appendices and Records Amended to Ease Readability

THE NEWS

Effective Sunday, October 1, 2017, the Florida Supreme Court’s amendments to the appellate rules go into effect.  The amendments are largely designed to update the rules to comport with the realities of producing and easily reading electronic appendices and records.

THE TRAP FOR THE UNWARY PRACTITIONER

Rule 9.220 is amended, adding new requirements for an appendix.  Now, an appendix must:

  • contain a coversheet that meets specific requirements for content;
  • contain a certificate of service;
  • generally be filed as a separate, single PDF file;
  • be properly indexed and consecutively paginated, with the cover sheet being page 1 and the page numbers matching the PDF reader display;
  • “be bookmarked, consistently with the index, such that each bookmark states the date, name of the document which it references, and directs to the first page of that document;”
  • have bookmarks “viewable in a separate window.”

Further, no condensed transcripts are permitted in an appendix without leave of court.  The rule also changes the format for paper appendices, when so authorized.

The Fourth District has warned that it will strike any appendix that does not comply with the amended rules when they go into effect on October 1, 2017.

The Fourth District has already issued an email to all 4th DCA eDCA Filers, stating “Effective October 1, 2017, electronic appendices which do not comply with the amended Rule 9.220 will be stricken.”  So be ready and be compliant!

THE SUBSTANTIVE AMENDMENTS SUMMARIZED

9.020 – Adds a definition for “E-Filing System Docket.”

9.120 – Details the format and contents of the documents to be transmitted from the district courts to the supreme court in situations where a party is seeking discretionary review

9.141 – Removes the clerk’s exception that allowed it to avoid having to repaginate or reindex a record from a previously prepared record into a record for a collateral or postconviction criminal case.

9.200 – The record shall now be submitted as a PDF document, uploaded to the e-filing system docket, and available for download to attorneys and parties who have registered for access to the system.  The appellate court may direct the lower clerk to submit a replacement record when an original record is found to be noncompliant with the technical requirements of rule 9.200(d).

9.220 – See above.

Rules 9.160 and  9.180 contain only minor changes in terms to reflect that their respective documents are “transmitted” rather than “sent” or “filed.”

BONUS TIP FOR TRIAL LAWYERS


The fact that the new rules forbid condensed transcripts in an Appendix should send a strong signal to trial lawyers not to file them with trial courts in general. Appellate judges do a lot of reading, and citing to a condensed transcript makes it that much harder for them to find what you are talking about. They just don’t track well or lend themselves to good notetaking on an iPad or other electronic screen. And since it is all being e-filed, there is much less of an issue with killing trees. If you are filing a transcript with the trial court, file the full transcript. The appellate judges will be a lot happier when reviewing your record. And that just makes it easier for everyone to focus on the merits rather than searching for the right record cite.

THE LONG AND SHORT OF IT

Florida State Courts have come a long way since the supreme court started this e-filing journey in 2013.  There have been a few hiccups, especially with the appellate courts, but the appellate rules are really starting to come into their own.

That said, with any new rule amendment comes new opportunities for errors to be made.  If you have a case pending or about to be pending before a Florida appellate court, give DPW Legal a call so we can help you avoid any of the pitfalls.

 

Florida Supreme Court Announces New Test for Harmless Error in Civil Cases

One of the most important tasks in evaluating an appeal is determining not just whether the trial court committed legal error, but also determining whether that error is harmful enough to warrant reversal. And one of the more frustrating parts of that analysis — particularly where the evidence statute is at play — has been determining how the legal rules for evaluating whether error is harmful set out in criminal cases apply to civil appeals. The Florida Supreme Court last month helped civil practitioners along in this task by expressly defining the harmless error test in civil appeals, and holding that it is exactly the same as in criminal appeals. The case came to the court in the context of a certified question from the Fourth District Court of Appeal, asking:

IN A CIVIL APPEAL, SHALL ERROR BE HELD HARMLESS WHERE IT IS MORE LIKELY THAN NOT THAT THE ERROR DID NOT CONTRIBUTE TO THE JUDGMENT?

Special v. West Boca Med. Ctr., No. SC11–2511, 39 Fla. L. Weekly S676, 2014 WL 5856384 at *1 (Fla. Nov. 13, 2014) [.pdf]. The court answered NO to this question, and instead held civil appeals to the same (and more difficult) standard found in crimnal appeals. The court first discussed in-depth its leading criminal case on the issue, State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). It then announced the following rule:

To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.

Id. at * 3 (italics added). Applying this test, the court explained that the appellate court analyzing the alleged error must focus on the effect on the trier-of-fact, not merely the result. Id.. Specifically:

As the appellate court evaluates whether the beneficiary of the error has satisfied its burden, the court’s obligation is to focus on the effect of the error on the trier-of-fact and avoid engaging in an analysis that looks only to the result in order to determine harmless error. Could the admission of evidence that should have been excluded have contributed to the verdict? Could the exclusion of evidence that should have been admitted have contributed to the verdict? Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful.

Id. at *4. The Court explained that this “no reasonable possibility test” properly places the burden on the party who invited the error, and “will foster consistency in appellate courts’ analyses of harmless error.”

The Dissenters: Too Far, or Not Enough?

The announced rule garnered the support of only 4 out of the Court’s 7 Justices, however. Justice Pariente wrote a detailed dissent setting out her alternative proposed test but finding reversible error even under her proposed less-strict test. Justices Polston and Canaday sided with Justice Pariente on the proper test, but in their view the trial court did not commit reversible error under the proper test. Justice Lewis also dissented in part, but only because he would have gone further in finding error.

Justice Pariente’s Dissent in Part: “More Likely Than Not” Test

Justice Pariente dissented in part, focussing on the difference between criminal and civil cases. Her dissent explained:

I dissent, however, from the majority’s decision to adopt the same harmless error standard for civil cases as is used in criminal cases, despite the different burdens of proof and constitutional interests that are implicated in the civil and criminal contexts.

Id. at *13 (Pariente, J. dissenting). Justice Pariente would have made the test ““more likely than not” rather than “no reasonable possibility.” She explained:

[B]ecause of the differing burdens of proof and constitutional rights at stake, I disagree with the majority’s adoption of the identical standard for harmless error in civil cases as applies in criminal cases. By adopting the test for harmless error that applies to criminal cases without even referencing the different burdens and interests that apply in the civil context, the majority favors form over substance and offers no compelling explanation as to why the “no reasonable possibility” language from DiGuilio, which is rooted in the “beyond a reasonable doubt” burden of proof, should be used in civil cases. As stated by the Fourth District, the harmless error test for civil cases “should acknowledge the particular attributes of those cases.

Id. at *14 (Pariente, J. dissenting).

Justices Polston’s Dissent: Wrong Test, Wrong Result

Justice Polston, joined by Justice Canaday, agreed with Justice Pariente and took her anlysis one step further: Not only should the “more likely than not” standard apply in civil cases because of the different burdens of proof, but applying that test to the facts of this case, they would have found any error harmless.

Justice Lewis: “Our Courts Will Not Review Allegations of Error Lightly”

Justice Lewis, on the other hand, agrees with the test adopted by the Court. His quibble was mostly with the nuts and bolts of the tests’ application in this case, and not the adoption of the “no reasonable possibility” test. Indeed, the concurrence portion of his opinion explains that:

Equity and logic demand that the burden of proving an error to be harmless must be placed on the party who improperly introduced the evidence. Placing the burden on the party that introduced the error serves not only to penalize the offending party, but also discourages future efforts to introduce error into proceedings…. [B]y applying the DiGuilio test in the civil context, we signal to litigating parties that our courts will not review allegations of error lightly, nor perpetuate such errors by affording them less scrutiny than the “reasonable possibility of affecting the verdict” standard provides.

Id. at *21. Justice Lewis also pointed out that the statutory test for harmless error, as set out in § 59.041, Fla. Stat., is identical for both civil and criminal cases, so the courts’ application of the test should be identical as well.

My Take

It will be interesting to see how this decision ripples through the courts of appeal. It likely should result in more reversals, but I will be curious to see, statistically, whether it actually does. I suspect an uptick in PCA’s instead.

I note that a motion for rehearing has been filed in this case, so the decision is not yet final. I’ll update here when it is finalized.