Florida Supreme Court issues Koppel v. Ochoa, whose reasoning and repeated dicta strongly suggest that in all cases where a party seeks to enlarge time to do anything, the mere filing of the Rule 1.090(b) motion to enlarge time does NOT stop the clock

Florida Supreme Court 5-17-18:

“Rules 1.090 and 1.442 do not, and did not, provide for tolling of the time periods by the filing of a motion for extension and are applicable to this and all other cases.”​

I ran across the Florida Supreme Court’s May 17, 2018 Koppel v. Ochoa opinion the other day and thought it important to make all Florida lawyers aware of it, because of its serious implications for all motions to enlarge (extend) time.

Koppel’s holding is narrow (“a motion to enlarge does not toll the time to accept a proposal for settlement”), but its implications are broad (“… rule [1.090] … provides for additional time only after cause has been shown … it is apparent from the text of the rule that motions to enlarge are not granted without a showing of cause before the trial judge … Rules 1.090 and 1.442 do not, and did not, provide for tolling of the time periods by the filing of a motion for extension and are applicable to this and all other cases”). Koppel v. Ochoa, SC16-1474, 2018 WL 2251709, at *1​, *5,​ and *7​ ​(Fla. May 17, 2018)​ (emphasis added).

So even though Koppel’s holding is limited to Rule 1.442 proposals for settlement, Koppel’s reasoning and repeated dicta strongly suggest that in all cases where a party seeks to enlarge time to do anything, the mere filing of the Rule 1.090(b) motion to enlarge time does NOT stop the clock.

​Hence in any extension-of-time situation, such as the typical more-time-to-respond-to-the-complaint request, the safest practice would be to either (1) get a written agreement from opposing counsel to extend the deadline; or (2) file a motion to dismiss the complaint before the deadline; or (3) file a bare-bones answer to the complaint before the deadline and later move to file a more robust amended answer.

The first of these options is recognized as valid in Berman’s authoritative treatise. 4 Fla. Prac., Berman’s Civil Procedure § 1.090:3, n. 2 (April 2018 edition) (“[i]n the state court practice, the absence of a court order would have significance only where the parties dispute the existence or terms of an agreement for extension of time”).

And contrary to the seemingly plain meaning of Rule 1.140(h)(1) (“Waiver of Defenses”), case law holds that the Rule 1.190 right to amend to add affirmative defenses overrides any Rule 1.140(h)(1) waiver. Rahabi v. Fla. Ins. Guar. Ass’n, Inc., 71 So. 3d 241, 244 (Fla. 4th DCA 2011) (“we reconcile rules 1.140(h)(1) and 1.190(e) to mean that if a defendant is without knowledge to present a defense in a responsive pleading, but later acquires such knowledge through due diligence, the court may permit the defendant to add that defense as long as the amendment does not affect the substantial rights of the plaintiff,” cited on this point in 4 Fla. Prac., Berman’s Civil Procedure § 1.140:50, text at note 12 (April 2018 edition); likewise, Nehme v. Smithkline Beecham Clinical Laboratories, Inc., 822 So. 2d 519, 520 n. 1 (Fla. 5th DCA 2002).

A party could of course file a Rule 1.090(b) motion to extend the deadline (“enlarge time”) to e.g. respond to a complaint, but the problem of course is that in busy courts, it’s likely that the movant won’t be able to get a hearing before the deadline passes.

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George Zadorozny, Attorney-at-Law / MASTERY™ Legal Research /Legal Research, Writing, & Consulting For Lawyers Only / My Fellow Lawyers Are My Clients™

GeorgeZadorozny

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GEORGE ZADOROZNY, ATTORNEY-AT-LAW

MASTERY LEGAL RESEARCH

LEGAL RESEARCH, WRITING, & CONSULTING FOR LAWYERS ONLY

MY FELLOW LAWYERS ARE MY CLIENTS™

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Practice Limited to Research, Writing, & Consulting for Attorneys

Rated AV by Martindale-Hubbell, and Superb (10 out of 10) by Avvo.com

Florida Bar ’82, J.D. Northwestern ’82, B.A. Yale ’78,

Carlton Fields ’82-’86

(727) 858-3325 or (727) 862-8348 * E-mail gzesq@yahoo.com

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Expertise: Maximizing your litigation power with the most powerfully persuasive causes of action, affirmative defenses, precedents, and arguments in master-level pleadings, motions, memoranda, and appeals; writer of crisp English.

Among the multitude of matters I have worked on since joining the Florida Bar in 1982 are these: reclaiming the Superman copyright for his creator’s family; lawyer compensation; litigation generally, especially business litigation; breach of contract (regular or implied-in-fact or implied-in-law); civil theft; injunctions; FDUTPA, including FDUTPA bond hearings; LLC law; torts generally; and overall more than a quarter century of multi-faceted legal research and writing of the finest quality.

Legal Work:

1986-present          See above.

1982-1986               Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, Florida.

Education:

J.D. 1982                 Northwestern University School of Law, Chicago, Illinois.

B.A. 1978                 Yale, New Haven, Connecticut.  Magna cum laude; Distinction in the English Major.

Miscellany:

Won $25,000 in cash and prizes on Jeopardy!, the television quiz show.

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Endorsements of George Zadorozny, Esq. Posted on Avvo.com by Fellow Florida Lawyers:

Larry Hart, Esq., Partner at Carlson, Meissner, Hart & Hayslett, P.A.,

New Port Richey, Florida, (727) 847-2737, lhart@carlsonmeissner.com:

“I strongly endorse this lawyer. An exceptional legal mind and analytical partner in legal problem solving. I have turned to George regarding pretrial matters through appellate issues in both civil and criminal matters. His research skills are extraordinary and the clarity of his application of the in-depth research he produces to the matters in controversy is among the very best I’ve encountered in over 30 years of practice. It is a pleasure to work with him.”

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Sheryl Hunter, Esq., President of Hunter Business Law,

Tampa, Florida, (813) 867-2640, info@hunterbusinesslaw.com:

“George is a terrific find. I have hired him to provide research and writing on several litigation matters and his work is excellent. He digs deep, is diligent, trustworthy and thorough as well as smart, timely, hard working and reasonably priced. I’m very happy to endorse George!”

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Andrew M. Lyons, Esq., Owner of The Lyons Law Group, P.A.,

Trinity, Florida, (727) 375-8900, info@lyonslawgroup.com:

“I endorse this lawyer. George Zadorozny is a great attorney and possesses a brilliant legal mind. I’ve known George for a number of years, and he is of the highest professional and personal integrity.  I would not hesitate to hire George as my personal attorney, nor would any other lawyer that I know; he is truly a lawyer’s lawyer.”

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More References:          

Michael Edwards, Esq., 1820 S.E. Port St. Lucie Boulevard, Port St. Lucie, FL 34952, Telephone (772) 335-4949; michaeledwardslaw@gmail.com

Frederick T. Reeves, Esq., 5709 Tidalwave Drive, New Port Richey, Florida 34652, Telephone (727) 844-3006; freeves@tbaylaw.com

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WRITING SAMPLES:  Sent to you on request to me at gzesq@yahoo.com.

CONTACT ME AT:  gzesq@yahoo.com or (727) 858-3325.

RATE:  $100 per  hour.

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GEORGE ZADOROZNY, ATTORNEY-AT-LAW

MASTERY LEGAL RESEARCH

LEGAL RESEARCH, WRITING, & CONSULTING FOR LAWYERS ONLY

MY FELLOW LAWYERS ARE MY CLIENTS™

═════════════════════════════════════════════════════

Practice Limited to Research, Writing, & Consulting for Attorneys

Rated AV by Martindale-Hubbell, and Superb (9.6 out of 10) by Avvo.com

Florida Bar ’82, J.D. Northwestern ’82, B.A. Yale ’78,

Carlton Fields ’82-’86

(727) 858-3325 or (727) 862-8348 * E-mail gzesq@yahoo.com

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