Ochoa v. Koppel

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

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, 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 Ochoa's proposal stated that it would be withdrawn if not accepted within that time.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 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 computation or enlargement of time. Rule 1.090 provides that a party may seek to have the time in which an act must be performed enlarged, but such an extension requires an order of the court, the exercise of the trial judge's discretion, and a showing by the movant that grounds for an enlargement exist—i.e., cause shown and, in the case of motions made after the expiration of the time period, excusable neglect. It too contains no provision tolling time while a motion for enlargement is pending.

The practical effect of interpreting the rule to provide automatic tolling upon the filing of a motion for enlargement is to give the party filing the motion additional time under circumstances other than those the rule contemplates. The filing of the motion grants a party a de facto enlargement of time—without the judicial supervision, exercise of discretion, and substantive showings rule 1.090 requires—until the motion is decided.² Neither rule contains any textual indication that this result was intended.

Accordingly, we hold that the filing of a rule 1.090 motion to enlarge time to accept a proposal for settlement under rule 1.442 does not toll the thirty-day acceptance period between the date of the proposal and when it is deemed rejected. Rule 1.442(f)(1) sets a hard thirty-day deadline for acceptances, and rule 1.090 authorizes enlargements but does not provide for tolling. To hold that a motion to enlarge the thirty-day period automatically tolls it until the motion is decided would require us to insert the necessary text into one or the other of the rules where that text does not in fact exist. That exercise is foreclosed to us. Cf. Hayes v. State, 750 So.2d 1, 4 (Fla.1999) (“We are not at liberty to add words to statutes that were not placed there by the Legislature.”); FINR II, Inc. v. Hardee Cty., 164 So.3d 1260, 1264 (Fla. 2d DCA), rev. granted, 182 So.3d 632 (Fla.2015) (holding that a court may not “rewrite the statute to insert an additional requirement not placed there by the legislature”).

Our holding finds additional support in the fact that when the supreme court has intended that the filing of a motion should toll time, it has not had difficulty expressing that intention. Under Florida Rule of Appellate Procedure 9.300(b), the filing of a motion to enlarge time automatically “toll [s] the time schedule of any proceeding in the court until disposition of the motion.” Because the supreme court knows how to provide for tolling when that is desired, it seems unlikely that the omission of a tolling provision in rules 1.090 and 1.442 was unintentional. Cf. Cason v. Fla. Dep't of Mgmt. Servs., 944 So.2d 306, 315 (Fla.2006) (“[...