Can It Be Done? Evaluating Judicial Authority to Expand the PFS Acceptance Period.

• Author: Ellison, Brian Lee
• Position: Proposal for settlement - Florida

When it comes to negotiating the resolution of a case, timing is important. But the moment a valid proposal for settlement (PFS) (1) is served, timing is everything. A defendant who does not timely accept a plaintiff's PFS may be ordered to pay the plaintiff's attorneys' fees and costs if the net judgment obtained is at least 25 percent greater than the plaintiff's offer. (2) Conversely, a plaintiff who does not timely accept a defendant's PFS may be ordered to pay the defendant's attorneys' fees and costs if the net judgment obtained by the plaintiff is at least 25 percent less than defendant's offer, or if there is a finding of no liability. Although Florida law is clear that parties may agree to an enlarged acceptance period, (3) thereby delaying the point at which fees and costs may be taxed, it is uncertain whether a court may enlarge the period over the offeror's objection.

F.S. [section]768.79 and Fla. R. Civ. P. 1.442 govern the procedural and substantive aspects of proposals for settlement. Both the statute and rule allow 30 days for an offeree to accept a PFS once it is duly served, but recent appellate decisions have differed on whether the acceptance window may be enlarged by court order on an offeree's motion. At least one district court of appeal has opined in dicta that more time may be granted over the objection of the offering party, pursuant to Rule 1.090. Meanwhile, at least one circuit court, sitting in an appellate capacity, has opined in dicta that the period is fixed by statute. This article first addresses those contrary positions, and then suggests that the issue may be resolved by a separation of powers analysis: If the 30-day acceptance period is classified as procedural, then courts likely have authority to grant an enlargement over the offeror's objection, but if the acceptance period is substantive, then courts are likely bound to strictly construe and apply the 30-day statutory period, barring any enlargement under the rules of procedure.

30 Days ... and Beyond

Generally, a trial court's authority to enlarge the period of time for a party to act is derived from Fla. Rul. Civ. P. 1.090. This rule provides in pertinent part that when a rule or order of court specifies a period of time for a party to act, "the court can at any time in its discretion ... order the period enlarged[.]" (4) Certain periods of time that cannot be enlarged under Rule 1.090 are expressly enumerated, and they do not include the provisions of Rule 1.442 or [section]768.79.5

While Rule 1.090 puts no limitation on enlargements of time to accept a PFS, the plain language of both Rule 1.442 and [section]768.79 grants no more and no less than 30 days for a party to accept a proposal. Both authorities are also silent as to whether more time may be given to accept a PFS. In fact, [section]768.79(1) provides that when a party submits an offer that is not accepted within 30 days, the party "shall be entitled to recover reasonable costs and attorney's fees" from the offeree. (6) Further, both the rule and statute must be strictly construed, as the award of fees and costs is a sanction that is in derogation of common law. (7) Ostensibly, then, the procedural rules do not expressly bar a court from enlarging the time to accept a PFS past 30 days, but, at the same time, [section]768.79 nowhere indicates that the time can be extended. As a result of that ambiguity, authorities are now split, or at least in doubt, as to how the timing aspects of the statute and the applicable procedural rules are to be interpreted.

Most recently, PFS acceptance periods were addressed in Ochoa v. Koppel, 197 So. 3d 77 (Fla. 2d DCA 2016), when the Second District Court of Appeal reviewed the trial court's ruling that a party timely accepted a valid proposal after the 30-day period had expired. The plaintiff argued that her PFS was enforceable against the defendant, who had moved under Rule 1.090 for an enlargement of time a day before the 30-day window ended, but had accepted the proposal before the trial court could rule on the motion. (8) The central issue on appeal, therefore, became not whether the time to accept a PFS could be enlarged, but whether moving for an extension would automatically toll the 30-day acceptance window.

The Second District evaluated Rules 1.090 and 1.442, and concluded that they contained "no provision tolling time while a motion for enlargement is pending." (9) The Second District also opined in dicta that had the motion gone before the trial court, Rule 1.090 conferred broad discretion on the judge to grant more time to accept the PFS upon a showing that the moving party had a "bona fide interest" in settling the case. (10) Still, despite that reasoning, the Second District suggested in an intriguing footnote that it was unclear whether Rule 1.090 could confer authority to a trial court to enlarge a statutory period of time imposed by the legislature in [section]768.79(1). (11) The court described this "potentially implicated" issue as "whether, in light of the fact that the [30]-day period after which a [PFS] is deemed rejected is also statutory under [[section]]768.79, that deadline is extendable under [R]ule 1.090 at all." (12) Without deciding that issue, the Second...