Filing a motion to enlarge time will not automatically toll the time to accept a proposal for settlement.

On Thursday, the Florida Supreme Court resolved a conflict between the district courts of appeal and held that the mere filing of a motion to enlarge time under Florida Rule of Civil Procedure 1.090(b) does not toll the time to accept the proposal.  Koppel v. Ochoa, No. SC16-1474 (Fla. May 17, 2018)

It’s important to note what this opinion does not hold.  The opinion does not hold motions to enlarge time to accept proposals for settlement are improper.  To the contrary, the opinion states, “Rule 1.090 allows for the time period set forth in rule 1.442 to be enlarged, but this enlargement is at the trial court’s discretion if the motion was filed before expiration of the time period and cause has been shown.”  Even after the time period to accept the offer has expired, a court may enlarge it if excusable neglect and good cause are shown.

But a favorable ruling on the motion to enlarge time is necessary.  So in Koppel, the party receiving the proposal could not automatically toll the time for acceptance by filing a motion to enlarge time and then accept the proposal before the trial court ruled on its enlargement motion–under circumstances in which the trial court actually denied the motion to enlarge time.

The take-away:  If you want to extend the time to consider a proposal for settlement, move to enlarge the time quickly and try to obtain a ruling before the time period expires.

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Certiorari Proceedings Do Not Divest a Trial Court of Jurisdiction

It’s a common misconception that certiorari proceedings in an appellate court affect the lower court’s jurisdiction much like an appeal does.  In fact, they have no effect on the lower court’s jurisdiction.

Florida Rule of Appellate Procedure 9.600 describes the general rules regarding what jurisdiction the lower tribunal retains once an appeal is filed.  But certiorari is an original proceeding–not an appeal–so this rule does not apply.

That the filing of a petition for certiorari has no effect on the lower tribunal’s jurisdiction is best captured in this quote from a Second District decision:

Certiorari is an original proceeding in this court. See Fla. R. App. P. 9.030(b)(3). It has no effect on the jurisdiction of the circuit court unless a stay of the proceedings is granted. Although Florida Rule of Appellate Procedure 9.130(f) specifically prohibits the circuit court’s entry of a final judgment during the appeal of a nonfinal order, no similar rule exists when a nonfinal order is challenged by way of certiorari.

Curry v. State, 880 So. 2d 751, 755-56 (Fla. 2d DCA 2004).

Can the trial court decide to stay a case if a party seeks certiorari review of a nonfinal order?  That would be within the trial court’s discretion in managing the case.  But the trial court is free to proceed, even to the entry of a final judgment that could moot the certiorari proceeding entirely.

Jury Instructions & Verdict Forms

Jury instructions and verdict forms are often hurriedly put together in the middle of trial, when an attorney has 100 other things on the mind.  And yet, these documents are critical to success at trial.  They are the entire framework within which the jury must work to render its verdict.  On Wednesday, the Hillsborough County Bar Association’s Trial & Litigation Section presented a CLE on these key components at trial.  The advice that ran through all three presentations:  Prepare your draft instructions and verdict form early and revisit them throughout trial.  Here’s a few other points from the CLE:

  • Mark your proposed instructions and verdict form and make sure they are filed in the court record.
  • Keep the charge conference “on the record.”
  • If you propose a special jury instruction, do not overreach.  The trial court is only compelled to give that instruction if it is:
    • An accurate statement of the law;
    • Supported by the facts of the case;
    • Necessary for the jury to properly resolve the issues; and
    • Not covered in the other instructions given to the jury.
  • If a case has multiple claims or defenses, a special interrogatory verdict may be key.  But read it carefully, aloud even, to ensure the jury will be able to follow it.
  • In civil cases, failing to properly preserve issues regarding the jury instructions or verdict form will almost always be fatal to any appeal.
  • In criminal cases, some errors in instructions or verdict forms will be considered fundamental (assuming there was no possible strategic reason for the defendant to invite or stay silent about the error).

Special thanks to co-presenters Hon. Matthew Lucas, Hon. Nelly Khouzam, and Jessica Goodwin Costello.