Appellate Update – Second District Holds that a Motion to Enlarge Time to Respond to a Proposal for Settlement Does Not Automatically Toll the Time to Accept Proposal

June 29, 2016 by on News

In Ochoa v. Koppel, 2016 Fla. App. LEXIS 7726, *1 (Fla. 2d DCA May 20, 2016), Ochoa served Koppel with a proposed settlement pursuant to Florida Statute § 768.79 and Florida Rule of Civil Procedure 1.442. Ochoa’s proposal stated that it would be withdrawn if it was not accepted within thirty days after service of the proposal. One day before the expiration of the thirty day period, Koppel filed a motion under Florida Rule of Civil Procedure 1.090 seeking to enlarge the time in which to respond to the proposal. The trial court heard the motion, but did not render a decision. Instead, the trial court requested that the parties submit additional authority. Koppel then served a notice of acceptance of the proposal. Thereafter, Koppel proceeded to provide the court with the requested authority. The trial court ultimately denied Koppel’s motion requesting to enlarge the time for acceptance of the proposal.

As a result, Ochoa filed a motion to strike Koppel’s notice of acceptance because it was untimely. Koppel filed a response and a motion to enforce the settlement arguing that her motion tolled the thirty-day period. The trial court denied Ochoa’s motion to strike and granted Koppel’s motion to enforce the settlement. Ochoa appealed.

On appeal, the Second District explained that neither Rule 1.090 or 1.442 provide that time for acceptance of a proposal is tolled when a motion to enlarge the time is filed.  Rule 1.442(f)(1) specifically provides that “a proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal.”  This is a hard thirty-day deadline. The Second District also noted that Rule 1.090 “does not contain any provision which tolls the running of the applicable time periods while a motion made pursuant to its provisions is pending.”

As a result, the Second District held that a motion to enlarge the time to respond to a proposal for settlement does not automatically toll the time to respond pending a decision on the motion. The Court certified conflict with the case of Goldy v. Corbett Cranes Servs., Inc., 692 So. 2d 225 (Fla. 5th DCA 1997).

If you have any questions about this case or would like to refer an appellate matter, please contact our appellate attorneys.

Kansas R. Gooden
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Appellate Practice Group Leader
Direct: 904.493.3755
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Loreyn P. Raab
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