Ochoa v. Koppel

• Decision Date: 20 May 2016
• Docket Number: No. 2D14–1866.,2D14–1866.
• Citation: 197 So.3d 77
• Parties: Laura OCHOA, Appellant, v. Donna KOPPEL and Progressive Select Insurance Company, a Foreign Profit Corporation, Appellees.
• Court: Florida District Court of Appeals

197 So.3d 77

Laura OCHOA, Appellant,
v.
Donna KOPPEL and Progressive Select Insurance Company, a Foreign Profit Corporation, Appellees.

No. 2D14–1866.

District Court of Appeal of Florida, Second District.

May 20, 2016.
Rehearing Denied July 14, 2016.

George A. Vaka and Nancy A. Lauten of Vaka Law Group, P.L., Tampa, for Appellant.

Anthony J. Russo, Ezequiel Lugo and Jared M. Krukar of Butler Weihmuller Katz Craig LLP, Tampa; and Paul U. Chistolini and William G.K. Smoak of Smoak, Chistolini & Barnett, PLLC, Tampa, for Appellee Donna Koppel.

No appearance for remaining Appellee.

SALARIO, Judge.

Laura Ochoa appeals a final judgment entered after the trial court ruled that Donna Koppel timely accepted a proposal for settlement that Ms. Ochoa served pursuant to section 768.79, Florida Statutes (2013), and Florida Rule of Civil Procedure 1.442. She asserts that Ms. Koppel failed to accept the proposal during the thirty-day period provided for in rule 1.442(f)(1) and that Ms. Koppel's motion to enlarge the time to accept the proposal, which the trial court ultimately denied, did not toll that thirty-day period while it was pending. We agree, reverse, and certify conflict with the Fifth District's decision in Goldy v. Corbett Cranes Services, Inc., 692 So.2d 225 (Fla. 5th DCA 1997).

I.

On December 9, 2011, Ms. Ochoa was injured in a crash with a car driven by Ms. Koppel. In April 2013, she sued Ms. Koppel,

197 So.3d 79

alleging negligence and seeking damages to compensate her for her injuries.

On September 3, 2013, Ms. Ochoa served Ms. Koppel with a proposal for settlement pursuant to section 768.79 and rule 1.442. The proposal offered to dismiss the action with prejudice in exchange for a lump-sum payment by Ms. Koppel of $100,000. Rule 1.442(f)(1) provides that a proposal for settlement is “deemed rejected” if not accepted within thirty days after service of the proposal, and Ms. Ochoa's proposal stated that it would be withdrawn if not accepted within that time. On the same day she served the proposal, Ms. Ochoa filed a notice that the case was ready for trial.

On October 2, 2013—one day before the thirty-day period to accept the settlement proposal expired—Ms. Koppel filed a motion seeking to enlarge the time in which to respond to the proposal. The motion cited Florida Rule of Civil Procedure 1.090, which governs enlargements of time, and alleged that Ms. Koppel had not had sufficient time to evaluate the proposal because (1) she had recently received through discovery a new MRI report bearing on Ms. Ochoa's alleged injuries and (2) the case remained “in its infancy” and Ms. Ochoa's deposition had not been taken. Ms. Ochoa later filed a notice setting a hearing on the motion for December 2, 2013.

Although we do not have a transcript of the hearing, the parties agree that the court did not render a decision on December 2 and that it instead requested that the parties submit additional authorities on or before December 5. The day after the hearing, on December 3, 2013, Ms. Koppel served a notice purporting to accept the proposal for settlement. Two days later, on December 5, 2013, she provided the court with the authorities it had requested. Later that day, the court entered an order denying Ms. Koppel's request to enlarge the time in which to accept the proposal for settlement.

Ms. Ochoa next filed a motion to strike Ms. Koppel's notice accepting the proposal for settlement on grounds that it was untimely. Ms. Koppel opposed the motion and argued that under the Fifth District's decision in Goldy, her filing of a motion to enlarge time under rule 1.090 tolled the thirty-day period in which she was authorized to accept the proposal. According to Ms. Koppel, the period remained tolled until the trial court denied her motion for enlargement of time on December 5, 2013. Ms. Koppel coupled her response to the motion to strike with a motion to enforce the settlement that she asserted was created by her acceptance of Ms. Ochoa's proposal for settlement.

After a hearing, the trial court agreed that Ms. Koppel's filing of a motion to enlarge time tolled the time she had to accept the settlement proposal, denied the motion to strike the notice of acceptance, and granted the motion to enforce settlement. The trial court then entered a final judgment dismissing Ms. Ochoa's case with prejudice based upon the proposal and acceptance. Ms. Ochoa timely appealed.

II.

This case presents the question of whether the filing of a motion under rule 1.090 to enlarge the time to accept a proposal for settlement automatically tolls the thirty-day period for accepting that proposal until the motion to enlarge is decided.¹ The issue is thus one that requires

197 So.3d 80

construction of a rule of civil procedure. Our review is de novo. Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla.2006).

A.

Rule 1.442 governs the procedures by which proposals for settlement are made and accepted or rejected. See also Audiffred v. Arnold, 161 So.3d 1274, 1277 (Fla.2015). As relevant here, rule 1.442(f)(1) 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.” In addition, it provides that the provisions of Florida Rule of Judicial Administration 2.514(b), which grant five additional days to act if service of the document requiring the act is made by mail or email, “do not apply to this subdivision.” The rule thus sets a hard thirty-day deadline after which, unless accepted, a proposal for settlement is deemed by the rule to have been rejected.

Rule 1.090(b) governs the enlargement of time periods established by the civil rules. It provides, in relevant part:

When an act is required or allowed to be done at or within a specified time by order of court, by these rules, or by notice given thereunder, for cause shown the court at any time in its discretion (1) with or without notice, may order the period enlarged if request therefor is made before the expiration of the period originally prescribed or as extended by a previous order, or (2) upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect....

The rule does not contain any provision which tolls the running of the applicable time periods while a motion made pursuant to its provisions is pending.

The rules of civil procedure are to be interpreted in accord with ordinary principles of statutory construction. Barco v. Sch. Bd. of Pinellas Cty., 975 So.2d 1116, 1121 (Fla.2008) ; Saia, 930 So.2d at 599. The cardinal principle of statutory construction is that a statute must be given its plain and ordinary meaning and, where that meaning is unambiguous, the effect that meaning dictates. See Kephart v. Hadi, 932 So.2d 1086, 1091 (Fla.2006) (citing Zuckerman v. Alter, 615 So.2d 661, 663 (Fla.1993) ). That principle resolves this case.

The texts of rules 1.090 and 1.442 are unambiguous in that neither contains language that could in any way be construed as providing that the time to accept a proposal for settlement is tolled when a motion to enlarge the time to do so is filed. Apart from providing that the thirty-day period is not extended when service is by mail or email, rule 1.442 says nothing about the...