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.

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.