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

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(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?

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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.

Florida Court’s Jurisdiction Over Out-of-State Party in Domestic Violence Cases

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Florida courts may only act if they have personal jurisdiction over the defendant, even in the case of alleged domestic violence. Having family in Florida, visiting Florida on vacation in the past, and sending a spouse and children to visit family in Florida are insufficient contacts to confer personal jurisdiction.  Youssef v. Zaitouni, Case No. 2D17-926 (Fla. 2d DCA Feb. 14, 2018) [.pdf].

When is there personal jurisdiction over an out-of-state resident?

Husband, an Ohio resident, moved through counsel to vacate an injunction entered against him in Florida after his estranged Wife moved to Florida and sought and obtained a domestic violence injunction (DVI) against him.  Husband argued that Florida did not have personal jurisdiction over him because he did not have sufficient contacts with Florida under Florida’s long arm statute, Section 48.193.  The trial court found that family members residing in Florida and past visits were sufficient contacts with Florida to confer jurisdiction.  In the alternative, the trial court invoked its “emergency jurisdiction over the minor children” under the Uniform Child Custody Jurisdiction and Enforcement Act, Sections 61.501-542, Fla. Stat.  (UCCJEA).

The Second District Court of Appeal yesterday reversed the refusal to vacate the injunction, and remanded for dismissal for lack of jurisdiction.  First, the court held that the contacts were not sufficient to confer personal jurisdiction under the long arm statute.  Second, the court found that the UCCJEA governed custody proceedings, and did not create an independent basis for the trial court to exercise personal jurisdiction.

What does this mean for parties seeking domestic violence protection against an out-of-state spouse or alleged abuser?

For the accused party, we recommend you contact a family law attorney right away to discuss your options and determine whether a motion to quash is appropriate in your case.  If you appear in court or respond to the petition without a lawyer, you will likely waive this important defense.

For those seeking protection, we recommend you be prepared to demonstrate the accused’s contacts with the state of Florida.  If you cannot, you should consider instead seeking an injunction in the accused’s home state, and then having that injunction domesticated and enforced in Florida.

But please don’t take legal advice from a blog post.  These cases are complicated, and it is best to consult an attorney with experience in these matters to get advice specific to your unique circumstances.

Dineen Wasylik and Jared Krukar of DPW Legal represented the winning party on appeal. DPW Legal focuses on assisting parties in navigating complicated procedural issue, both on appeal, and by supporting trial counsel.

Many thanks to the trial counsel in this case, Felicia Williams of Father’s Rights Law, P.A.  who did an excellent job of preserving her client’s rights to appeal and to be heard in the proper jurisdiction.  Check out Felicia’s video on what to do if you are served with a domestic violence injunction.