42
Fla. L. Weekly D842aTop of Form
Fla. L. Weekly D842aTop of Form
Attorney’s
fees — Proposal for settlement — Trial court erred when it partially denied
plaintiffs’ post-trial motion to tax attorney’s fees and costs based on its
conclusion that proposals for settlement served by the plaintiffs upon
defendants’ attorneys could not serve as basis to award fees and costs because
they were not served by email — Conflict certified — Section 768.79 and rule
1.442 do not mandate email as the exclusive method for service of pretrial
proposals for settlement upon a party — Mandatory e-mail service requirement
set forth in rule 2.516(b)(1) does not apply to service of pretrial proposals
for settlement — Plaintiffs strictly complied with statute and corresponding
procedural rules governing service of proposals for settlement by serving
proposals via certified mail and attaching to each of their proposals a
certificate of service
fees — Proposal for settlement — Trial court erred when it partially denied
plaintiffs’ post-trial motion to tax attorney’s fees and costs based on its
conclusion that proposals for settlement served by the plaintiffs upon
defendants’ attorneys could not serve as basis to award fees and costs because
they were not served by email — Conflict certified — Section 768.79 and rule
1.442 do not mandate email as the exclusive method for service of pretrial
proposals for settlement upon a party — Mandatory e-mail service requirement
set forth in rule 2.516(b)(1) does not apply to service of pretrial proposals
for settlement — Plaintiffs strictly complied with statute and corresponding
procedural rules governing service of proposals for settlement by serving
proposals via certified mail and attaching to each of their proposals a
certificate of service
RICHARD
BOATRIGHT and DEBORAH BOATRIGHT, his wife, Appellants, v. PHILIP MORRIS USA INC.,
and LIGGETT GROUP, LLC, Appellees. 2nd District. Case No. 2D15-1781. Opinion
filed April 12, 2017. Appeal from the Circuit Court for Polk County; John M.
Radabaugh, Judge. Counsel: Philip J. Padovano, Celene H. Humphries, and Maegen
P. Luka of Brannock & Humphries, Tampa, and Jonathan R. Gdanski, Steven
Hammer, and Brittany Chambers of Schlesinger Law Offices, P.A., Fort
Lauderdale, for Appellants. M. Sean Laane and Geoffrey J. Michael of Arnold
& Porter LLP, Washington, D.C.; and William P. Geraghty and Rachel A.
Canfield of Shook, Hardy & Bacon, L.L.P., Miami, for Appellee Philip Morris
USA Inc. Wayne L. Thomas of Akerman Senterfitt, Tampa; and Kelly Anne Luther,
Maria Ruiz, Giselle Gonzalez Manseur, and Ann M. St. Peter-Griffith of
Kasowitz, Benson, Torres & Friedman, LLP, Miami; and Karen H. Curtis of
Clarke Silverglate, P.A., Miami, for Appellee Liggett Group, LLC.
BOATRIGHT and DEBORAH BOATRIGHT, his wife, Appellants, v. PHILIP MORRIS USA INC.,
and LIGGETT GROUP, LLC, Appellees. 2nd District. Case No. 2D15-1781. Opinion
filed April 12, 2017. Appeal from the Circuit Court for Polk County; John M.
Radabaugh, Judge. Counsel: Philip J. Padovano, Celene H. Humphries, and Maegen
P. Luka of Brannock & Humphries, Tampa, and Jonathan R. Gdanski, Steven
Hammer, and Brittany Chambers of Schlesinger Law Offices, P.A., Fort
Lauderdale, for Appellants. M. Sean Laane and Geoffrey J. Michael of Arnold
& Porter LLP, Washington, D.C.; and William P. Geraghty and Rachel A.
Canfield of Shook, Hardy & Bacon, L.L.P., Miami, for Appellee Philip Morris
USA Inc. Wayne L. Thomas of Akerman Senterfitt, Tampa; and Kelly Anne Luther,
Maria Ruiz, Giselle Gonzalez Manseur, and Ann M. St. Peter-Griffith of
Kasowitz, Benson, Torres & Friedman, LLP, Miami; and Karen H. Curtis of
Clarke Silverglate, P.A., Miami, for Appellee Liggett Group, LLC.
(BADALAMENTI,
Judge.) Appellants Richard and Deborah Boatright are former Engle1 plaintiffs who obtained a $32.75
million jury verdict against Appellees Philip Morris USA Inc. and Liggett
Group, LLC (the tobacco companies). The trial court partially denied the
Boatrights’ posttrial motion to tax attorneys’ fees and costs, holding that
proposals for settlement served by the Boatrights upon the tobacco companies’
attorneys could not serve as a basis to award fees and costs because they were
not served by e-mail. The trial court reasoned that the method of service by
which the Boatrights served their proposals for settlement — U.S. Certified
Mail — did not strictly comply with the service requirements for proposals for
settlement. We disagree and reverse.
Judge.) Appellants Richard and Deborah Boatright are former Engle1 plaintiffs who obtained a $32.75
million jury verdict against Appellees Philip Morris USA Inc. and Liggett
Group, LLC (the tobacco companies). The trial court partially denied the
Boatrights’ posttrial motion to tax attorneys’ fees and costs, holding that
proposals for settlement served by the Boatrights upon the tobacco companies’
attorneys could not serve as a basis to award fees and costs because they were
not served by e-mail. The trial court reasoned that the method of service by
which the Boatrights served their proposals for settlement — U.S. Certified
Mail — did not strictly comply with the service requirements for proposals for
settlement. We disagree and reverse.
PROCEDURAL
AND FACTUAL BACKGROUND
AND FACTUAL BACKGROUND
The
facts here are both undisputed and straightforward. Prior to trial, the
Boatrights served four proposals for settlement on the tobacco companies — one
from each plaintiff to each defendant for $200,000, totaling $800,000. Attached
to each of the four proposals was a corresponding certificate of service signed
by the Boatrights’ attorney. The certificates of service attached to the
proposals were set forth in the following format: “I hereby certify that on the
31st of July, 2014, the foregoing document was served on [the tobacco
companies’ respective attorneys] at [the corresponding law firm’s mailing
address] . . . for PHILLIP MORRIS U.S.A., INC. [or LIGGETT GROUP, LLC]
via U.S. Certified Mail.” (Bolded text in originals). The tobacco companies
received and did not accept the proposals.
facts here are both undisputed and straightforward. Prior to trial, the
Boatrights served four proposals for settlement on the tobacco companies — one
from each plaintiff to each defendant for $200,000, totaling $800,000. Attached
to each of the four proposals was a corresponding certificate of service signed
by the Boatrights’ attorney. The certificates of service attached to the
proposals were set forth in the following format: “I hereby certify that on the
31st of July, 2014, the foregoing document was served on [the tobacco
companies’ respective attorneys] at [the corresponding law firm’s mailing
address] . . . for PHILLIP MORRIS U.S.A., INC. [or LIGGETT GROUP, LLC]
via U.S. Certified Mail.” (Bolded text in originals). The tobacco companies
received and did not accept the proposals.
Upon
receiving the jury’s verdict, the Boatrights filed a motion to tax attorneys’
fees and costs based in part on the tobacco companies’ failure to accept the
Boatrights’ proposals for settlement.2 See § 768.79(6)(b), Fla. Stat.
(2013); Fla. R. Civ. P. 1.442(h). After a hearing on the motion, the trial
court held that the Boatrights were not entitled to attorneys’ fees and costs
because they did not serve their proposals for settlement on the tobacco
companies’ attorneys by e-mail, and therefore did not strictly comply with
section 768.79 and rule 1.442.
receiving the jury’s verdict, the Boatrights filed a motion to tax attorneys’
fees and costs based in part on the tobacco companies’ failure to accept the
Boatrights’ proposals for settlement.2 See § 768.79(6)(b), Fla. Stat.
(2013); Fla. R. Civ. P. 1.442(h). After a hearing on the motion, the trial
court held that the Boatrights were not entitled to attorneys’ fees and costs
because they did not serve their proposals for settlement on the tobacco
companies’ attorneys by e-mail, and therefore did not strictly comply with
section 768.79 and rule 1.442.
DISCUSSION
The
question before us is whether section 768.79 and rule 1.442 mandate e-mail as
the exclusive method for service of pretrial proposals for settlement upon a
party. Because section 768.79 and rule 1.442 depart from common law, they
demand strict compliance and strict construction. See Diamond
Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 377 (Fla. 2013); Campbell
v. Goldman, 959 So. 2d 223, 226 (Fla. 2007) (citing Willis Shaw Express,
Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003)). Failure to
strictly comply with section 768.79 and rule 1.442 will render a proposal for
settlement invalid, and therefore incapable of supporting an award of
attorneys’ fees and costs. Campbell, 959 So. 2d at 226.
question before us is whether section 768.79 and rule 1.442 mandate e-mail as
the exclusive method for service of pretrial proposals for settlement upon a
party. Because section 768.79 and rule 1.442 depart from common law, they
demand strict compliance and strict construction. See Diamond
Aircraft Indus., Inc. v. Horowitch, 107 So. 3d 362, 377 (Fla. 2013); Campbell
v. Goldman, 959 So. 2d 223, 226 (Fla. 2007) (citing Willis Shaw Express,
Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278 (Fla. 2003)). Failure to
strictly comply with section 768.79 and rule 1.442 will render a proposal for
settlement invalid, and therefore incapable of supporting an award of
attorneys’ fees and costs. Campbell, 959 So. 2d at 226.
We
must discern a drafter’s intent by analyzing the text’s plain and ordinary
meaning. Gallagher v. Manatee County, 927 So. 2d 914, 919 (Fla. 2d DCA
2006) (quoting State v. Burris, 875 So. 2d 408, 410 (Fla. 2004)).3 Where, as here, “there are several
rules pertaining to the same subject they are to be construed together and in
relation to each other.” In re Cleary’s Estate, 135 So. 2d 428, 430
(Fla. 2d DCA 1961).
must discern a drafter’s intent by analyzing the text’s plain and ordinary
meaning. Gallagher v. Manatee County, 927 So. 2d 914, 919 (Fla. 2d DCA
2006) (quoting State v. Burris, 875 So. 2d 408, 410 (Fla. 2004)).3 Where, as here, “there are several
rules pertaining to the same subject they are to be construed together and in
relation to each other.” In re Cleary’s Estate, 135 So. 2d 428, 430
(Fla. 2d DCA 1961).
A.
The Text and Interplay of Section 768.79, Rule 1.442, and Rule 1.080
The Text and Interplay of Section 768.79, Rule 1.442, and Rule 1.080
Section
768.79 does not provide for any particular method of service of a proposal for
settlement. It merely states that a proposal for settlement “shall be served”
upon the party to whom the proposal is made, but it shall not be filed with the
court unless it is accepted, or filing is necessary to enforce the provisions
of the statute. § 768.79(3). Similarly, rule 1.442(d) states that “[a] proposal
shall be served on the party or parties to whom it is made but shall not be
filed unless necessary to enforce the provisions of this rule.” Thus, although
both section 768.79 and rule 1.442 do not set any specific method of service
for proposals for settlement, they are both absolutely clear that proposals for
settlement are not to be filed, unless: (1) they are part of a motion
for incorporation into a final judgment; or (2) they are part of a motion to
enforce the provisions of section 768.79 or rule 1.442, such as a motion for
attorneys’ fees and costs.
768.79 does not provide for any particular method of service of a proposal for
settlement. It merely states that a proposal for settlement “shall be served”
upon the party to whom the proposal is made, but it shall not be filed with the
court unless it is accepted, or filing is necessary to enforce the provisions
of the statute. § 768.79(3). Similarly, rule 1.442(d) states that “[a] proposal
shall be served on the party or parties to whom it is made but shall not be
filed unless necessary to enforce the provisions of this rule.” Thus, although
both section 768.79 and rule 1.442 do not set any specific method of service
for proposals for settlement, they are both absolutely clear that proposals for
settlement are not to be filed, unless: (1) they are part of a motion
for incorporation into a final judgment; or (2) they are part of a motion to
enforce the provisions of section 768.79 or rule 1.442, such as a motion for
attorneys’ fees and costs.
There
is no dispute that the Boatrights did not file their proposals with the trial
court until they sought to enforce the attorneys’ fees and costs provisions of
section 768.79(6)(b) and rule 1.442(h). There is also no dispute that the
Boatrights attached their proposals to their motion to tax attorneys’ fees and
costs. Therefore, the Boatrights strictly complied with section 768.79 and rule
1.442.
is no dispute that the Boatrights did not file their proposals with the trial
court until they sought to enforce the attorneys’ fees and costs provisions of
section 768.79(6)(b) and rule 1.442(h). There is also no dispute that the
Boatrights attached their proposals to their motion to tax attorneys’ fees and
costs. Therefore, the Boatrights strictly complied with section 768.79 and rule
1.442.
That
said, the tobacco companies contend that rule 1.442 provides additional
guidance as to the method of service of proposals for settlement upon an opposing
party. In particular, they point to rule 1.442(c)(2)(G), which states that “[a]
proposal [for settlement] shall . . . include a certificate of service in the
form required by [Florida Rule of Civil Procedure] 1.080.” There is no dispute
that the Boatrights’ proposals for settlement each contained a certificate of
service. The conundrum is that rule 1.442(c)(2)(G) refers to rule 1.080, which
does not specify “the form” of the certificate. In fact, rule 1.080 states
nothing about a certificate of service. The only reference to service is within
rule 1.080(a), which states that “[e]very pleading subsequent to the initial
pleading, all orders, and every other document filed in the action must
be served in conformity with the requirements of Florida Rule of Judicial
Administration 2.516.” (Emphasis added.) The plain language of rule 1.080(a)
yields the conclusion that, unless a document is filed in the action, its
service need not be in conformity with rule 2.516’s requirements.
said, the tobacco companies contend that rule 1.442 provides additional
guidance as to the method of service of proposals for settlement upon an opposing
party. In particular, they point to rule 1.442(c)(2)(G), which states that “[a]
proposal [for settlement] shall . . . include a certificate of service in the
form required by [Florida Rule of Civil Procedure] 1.080.” There is no dispute
that the Boatrights’ proposals for settlement each contained a certificate of
service. The conundrum is that rule 1.442(c)(2)(G) refers to rule 1.080, which
does not specify “the form” of the certificate. In fact, rule 1.080 states
nothing about a certificate of service. The only reference to service is within
rule 1.080(a), which states that “[e]very pleading subsequent to the initial
pleading, all orders, and every other document filed in the action must
be served in conformity with the requirements of Florida Rule of Judicial
Administration 2.516.” (Emphasis added.) The plain language of rule 1.080(a)
yields the conclusion that, unless a document is filed in the action, its
service need not be in conformity with rule 2.516’s requirements.
The
legislature and the drafters of the Florida Rules of Civil Procedure, as
adopted by our supreme court, have expressly stated that proposals for
settlement “shall not” be filed in an action until such time the proposal is
accepted or a party seeks enforcement of a proposal. § 768.79(3); Fla. R. Civ.
P. 1.442(d). Simply stated, proposals for settlement are not subject to the
service requirements of rule 2.516 because the proposals do not meet rule
1.080(a)’s threshold requirement that they be “filed in the action.” Because
the scope of rule 1.080(a) is confined to documents filed in an action, the
Boatrights have strictly complied with the applicable statute and rules we have
examined up to this point.
legislature and the drafters of the Florida Rules of Civil Procedure, as
adopted by our supreme court, have expressly stated that proposals for
settlement “shall not” be filed in an action until such time the proposal is
accepted or a party seeks enforcement of a proposal. § 768.79(3); Fla. R. Civ.
P. 1.442(d). Simply stated, proposals for settlement are not subject to the
service requirements of rule 2.516 because the proposals do not meet rule
1.080(a)’s threshold requirement that they be “filed in the action.” Because
the scope of rule 1.080(a) is confined to documents filed in an action, the
Boatrights have strictly complied with the applicable statute and rules we have
examined up to this point.
However,
the tobacco companies insist that the heart of their argument is found within
the language of rule 2.516. Accordingly, we now turn our attention to the text
of that rule.
the tobacco companies insist that the heart of their argument is found within
the language of rule 2.516. Accordingly, we now turn our attention to the text
of that rule.
B.
Rule 2.516(f)’s Certificate of Service Form
Rule 2.516(f)’s Certificate of Service Form
Rule
2.516(f) is the only rule we have identified setting forth the form of a
certificate of service to which rule 1.442(c)(2)(G) refers.4 Pursuant to the form in rule
2.516(f), an attorney must certify in substance “that the foregoing document
has been furnished to (here insert name or names, addresses used for service,
and mailing addresses) by (e-mail) (delivery) (mail) (fax) on . . . (date) . .
.”. Thus, within section 2.516(f)’s certificate of service requirements,
e-mail, hand delivery, mail, and fax are permissible methods of service.
Attachment of the certificate in rule 2.516(f) is “taken as prima facie proof
of . . . service in compliance” with rule 2.516.5
2.516(f) is the only rule we have identified setting forth the form of a
certificate of service to which rule 1.442(c)(2)(G) refers.4 Pursuant to the form in rule
2.516(f), an attorney must certify in substance “that the foregoing document
has been furnished to (here insert name or names, addresses used for service,
and mailing addresses) by (e-mail) (delivery) (mail) (fax) on . . . (date) . .
.”. Thus, within section 2.516(f)’s certificate of service requirements,
e-mail, hand delivery, mail, and fax are permissible methods of service.
Attachment of the certificate in rule 2.516(f) is “taken as prima facie proof
of . . . service in compliance” with rule 2.516.5
For
purposes of comparison, the Boatrights’ certificates of service state, “I
hereby certify that on the 31st of July, 2014, the foregoing document was
served on . . . counsel for PHILLIP MORRIS U.S.A., INC. [or LIGGETT
GROUP, LLC], via U.S. Certified Mail.” Here, the certificates of service
attached to the Boatrights’ proposals both track the form in rule 2.516(f) and
specify mail as the method of service. The Boatrights’ certificates of service
thus comply with the form of the certificate of service set forth in rule
2.516(f) and thus are evidence of prima facie service in compliance with rule
2.516. Therefore, to the extent that rule 1.442(c)(2)(G) incorporates the
certificate of service form in rule 2.516(f), the Boatrights have again
strictly complied with the applicable statute and rules.
purposes of comparison, the Boatrights’ certificates of service state, “I
hereby certify that on the 31st of July, 2014, the foregoing document was
served on . . . counsel for PHILLIP MORRIS U.S.A., INC. [or LIGGETT
GROUP, LLC], via U.S. Certified Mail.” Here, the certificates of service
attached to the Boatrights’ proposals both track the form in rule 2.516(f) and
specify mail as the method of service. The Boatrights’ certificates of service
thus comply with the form of the certificate of service set forth in rule
2.516(f) and thus are evidence of prima facie service in compliance with rule
2.516. Therefore, to the extent that rule 1.442(c)(2)(G) incorporates the
certificate of service form in rule 2.516(f), the Boatrights have again
strictly complied with the applicable statute and rules.
However,
the tobacco companies are not content with certificates of service which comply
with rule 2.516(f). Instead, the tobacco companies argue that the mandatory
e-mail service requirement located elsewhere in rule 2.516 applies to the
service of pretrial proposals for settlement on an opposing party.6 We now turn our attention to the
e-mail service requirement.
the tobacco companies are not content with certificates of service which comply
with rule 2.516(f). Instead, the tobacco companies argue that the mandatory
e-mail service requirement located elsewhere in rule 2.516 applies to the
service of pretrial proposals for settlement on an opposing party.6 We now turn our attention to the
e-mail service requirement.
C.
Applicability of Rule 2.516(b)(1)’s Mandatory E-Mail Service Requirement
Applicability of Rule 2.516(b)(1)’s Mandatory E-Mail Service Requirement
Rule
2.516 begins with two subsections entitled “(a) Service; When
Required” and “(b) Service; How Made.” In pertinent part, rule
2.516(a) states that “every pleading subsequent to the initial pleading and
every other document filed in any court proceeding . . . must be served in
accordance with this rule on each party.” (Emphasis added.) Rule 2.516(b)(1)
states that “[a]ll documents required or permitted to be served on
another party must be served by e-mail, unless the parties otherwise stipulate
or this rule otherwise provides.” (Emphasis added.) The thrust of rule
2.516(b)(1) is to mandate that e-mail be the exclusive service method for a
certain category of documents.
2.516 begins with two subsections entitled “(a) Service; When
Required” and “(b) Service; How Made.” In pertinent part, rule
2.516(a) states that “every pleading subsequent to the initial pleading and
every other document filed in any court proceeding . . . must be served in
accordance with this rule on each party.” (Emphasis added.) Rule 2.516(b)(1)
states that “[a]ll documents required or permitted to be served on
another party must be served by e-mail, unless the parties otherwise stipulate
or this rule otherwise provides.” (Emphasis added.) The thrust of rule
2.516(b)(1) is to mandate that e-mail be the exclusive service method for a
certain category of documents.
The
tobacco companies construe the phrase “all documents” in rule 2.516(b)(1) to
encompass any document which may be served upon an opposing party, including
proposals for settlement. Based upon our reading of the plain and ordinary
language set forth in section 768.79(3), rule 1.442(d), and rule 2.516, we
disagree with the tobacco companies’ construction.
tobacco companies construe the phrase “all documents” in rule 2.516(b)(1) to
encompass any document which may be served upon an opposing party, including
proposals for settlement. Based upon our reading of the plain and ordinary
language set forth in section 768.79(3), rule 1.442(d), and rule 2.516, we
disagree with the tobacco companies’ construction.
Legal
text “should be interpreted to give effect to every clause in it, and to accord
meaning and harmony to all of its parts.” Jones v. ETS of New Orleans, Inc.,
793 So. 2d 912, 914-15 (Fla. 2001) (quoting Acosta v. Richter, 671 So.
2d 149, 153-54 (Fla. 1996)). If a statutory provision appears to have a clear
meaning in isolation, “but when given that meaning is inconsistent with other
parts of the same statute or others in pari materia, the [c]ourt will examine
the entire act and those in pari materia in order to ascertain the overall
legislative intent.” Fla. State Racing Comm’n v. McLaughlin, 102 So. 2d
574, 575-76 (Fla. 1958). Whenever possible, we must avoid construing legal text
as “mere surplusage.” Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d
993, 996 (Fla. 2003) (citing Hawkins v. Ford Motor Co., 748 So. 2d 993
(Fla. 1999)).
text “should be interpreted to give effect to every clause in it, and to accord
meaning and harmony to all of its parts.” Jones v. ETS of New Orleans, Inc.,
793 So. 2d 912, 914-15 (Fla. 2001) (quoting Acosta v. Richter, 671 So.
2d 149, 153-54 (Fla. 1996)). If a statutory provision appears to have a clear
meaning in isolation, “but when given that meaning is inconsistent with other
parts of the same statute or others in pari materia, the [c]ourt will examine
the entire act and those in pari materia in order to ascertain the overall
legislative intent.” Fla. State Racing Comm’n v. McLaughlin, 102 So. 2d
574, 575-76 (Fla. 1958). Whenever possible, we must avoid construing legal text
as “mere surplusage.” Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d
993, 996 (Fla. 2003) (citing Hawkins v. Ford Motor Co., 748 So. 2d 993
(Fla. 1999)).
The
tobacco companies’ expansive reading of rule 2.516(b)(1) would render
subsection (a) meaningless and only prevails if we were to impermissibly read
rule 2.516(b)(1) in isolation. By its title, rule 2.516(a) sets forth when the
service requirements of rule 2.516 apply. Rule 2.516(a) confines the scope of
rule 2.516 to “every pleading subsequent to the initial pleading and every
other document filed in any court proceeding.” (Emphasis added.) Rule
2.516(b)(1) then sets forth the method by which those documents must be served,
which is principally by e-mail, albeit with some exceptions inapplicable to
this case. Reading rule 2.516(a) and (b)(1) together, the word “documents” in
subsection (b)(1) is confined in meaning to “document[s] filed in any court
proceeding,” consistent with the text of subsection (a). See Hechtman,
840 So. 2d at 996; Jones, 793 So. 2d at 914-15. It makes no sense for
rule 2.516(b)(1)’s e-mail service requirements to apply to a broader
scope of documents than specified by 2.516(a), which is the portion of rule
2.516 defining its scope.
tobacco companies’ expansive reading of rule 2.516(b)(1) would render
subsection (a) meaningless and only prevails if we were to impermissibly read
rule 2.516(b)(1) in isolation. By its title, rule 2.516(a) sets forth when the
service requirements of rule 2.516 apply. Rule 2.516(a) confines the scope of
rule 2.516 to “every pleading subsequent to the initial pleading and every
other document filed in any court proceeding.” (Emphasis added.) Rule
2.516(b)(1) then sets forth the method by which those documents must be served,
which is principally by e-mail, albeit with some exceptions inapplicable to
this case. Reading rule 2.516(a) and (b)(1) together, the word “documents” in
subsection (b)(1) is confined in meaning to “document[s] filed in any court
proceeding,” consistent with the text of subsection (a). See Hechtman,
840 So. 2d at 996; Jones, 793 So. 2d at 914-15. It makes no sense for
rule 2.516(b)(1)’s e-mail service requirements to apply to a broader
scope of documents than specified by 2.516(a), which is the portion of rule
2.516 defining its scope.
Even
more, because rule 2.516(a) expressly confines its scope to the service of
documents “filed in any court proceeding,” we are compelled to read the rule as
excluding documents which are not “filed in any court proceeding.” See
Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla.
1996) (“Under the principle of statutory construction, expressio unius est
exclusio alterius, the mention of one thing implies the exclusion of another.”
(citing Bergh v. Stephens, 175 So. 2d 787 (Fla. 1st DCA 1965))); see
also United States v. Koonce, 991 F.2d 693, 698 (11th Cir. 1993)
(“The canon of statutory construction that the inclusion of one implies the
exclusion of others is well-established.”).
more, because rule 2.516(a) expressly confines its scope to the service of
documents “filed in any court proceeding,” we are compelled to read the rule as
excluding documents which are not “filed in any court proceeding.” See
Moonlit Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla.
1996) (“Under the principle of statutory construction, expressio unius est
exclusio alterius, the mention of one thing implies the exclusion of another.”
(citing Bergh v. Stephens, 175 So. 2d 787 (Fla. 1st DCA 1965))); see
also United States v. Koonce, 991 F.2d 693, 698 (11th Cir. 1993)
(“The canon of statutory construction that the inclusion of one implies the
exclusion of others is well-established.”).
We
will not accept the tobacco company’s invitation to read rule 2.516(b)(1)’s
e-mail service in isolation so as to mandate e-mail service for all documents,
even those that have been mandated by the legislature to not be filed, such as
proposals for settlement. The prescriptions of rule 2.516(b)(1) “should no more
be allowed to trump [section 768.79] than the tail should be allowed to wag the
dog.” Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So. 3d 391, 395-96
(Fla. 2016).
will not accept the tobacco company’s invitation to read rule 2.516(b)(1)’s
e-mail service in isolation so as to mandate e-mail service for all documents,
even those that have been mandated by the legislature to not be filed, such as
proposals for settlement. The prescriptions of rule 2.516(b)(1) “should no more
be allowed to trump [section 768.79] than the tail should be allowed to wag the
dog.” Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So. 3d 391, 395-96
(Fla. 2016).
Our
review of the entire text of rule 2.516(b)(1) also supports our conclusion that
mandatory e-mail service is only required for documents that are filed in an
action. Rule 2.516(b)(1) only requires e-mail service “unless the parties
otherwise stipulate or this rule otherwise provides.” (Emphasis added.)
The emphasized phrase “unless . . . this rule otherwise provides” encompasses
the language in subsection (a), which confines the word “documents” to only
those documents filed in the action. Accordingly, the text and context of rule
2.516(b)(1) also support our construction.
review of the entire text of rule 2.516(b)(1) also supports our conclusion that
mandatory e-mail service is only required for documents that are filed in an
action. Rule 2.516(b)(1) only requires e-mail service “unless the parties
otherwise stipulate or this rule otherwise provides.” (Emphasis added.)
The emphasized phrase “unless . . . this rule otherwise provides” encompasses
the language in subsection (a), which confines the word “documents” to only
those documents filed in the action. Accordingly, the text and context of rule
2.516(b)(1) also support our construction.
Finally,
rule 2.516(d) states that “[a]ll documents must be filed with the court either
before service or immediately thereafter, unless otherwise provided for by
general law or other rules.” (Emphasis added.) Again, because section
768.79(3) and rule 1.442(d) expressly state that proposals for settlement shall
not be filed, we construe section 768.79(3) and rule 1.442(d) as exceptions
“provided for by general law and other rules.” If proposals for settlement are
excluded from the mandatory filing requirement in rule 2.516(d), they are also
excluded from the e-mail service requirement which is mandatory only if the
documents were required to be filed in the first instance. Thus, the context of
rule 2.516(d) supports our conclusion as well.
rule 2.516(d) states that “[a]ll documents must be filed with the court either
before service or immediately thereafter, unless otherwise provided for by
general law or other rules.” (Emphasis added.) Again, because section
768.79(3) and rule 1.442(d) expressly state that proposals for settlement shall
not be filed, we construe section 768.79(3) and rule 1.442(d) as exceptions
“provided for by general law and other rules.” If proposals for settlement are
excluded from the mandatory filing requirement in rule 2.516(d), they are also
excluded from the e-mail service requirement which is mandatory only if the
documents were required to be filed in the first instance. Thus, the context of
rule 2.516(d) supports our conclusion as well.
In
sum, we hold that the mandatory e-mail service requirement set forth in rule
2.516(b)(1) does not apply to service of pretrial proposals for settlement. In
the context of proposals for settlement, the mandatory e-mail service
requirement in rule 2.516(b)(1) is only triggered when the proposals are
attached to motions for acceptance or enforcement under section 768.79(3) or
rule 1.442(d) that are filed in court. The Boatrights attached their proposals
for settlement to their motion to tax attorneys’ fees and costs, filed with
their motion with the trial court, and had previously served their proposals
for settlement upon the tobacco companies’ counsel by U.S. Certified Mail.
sum, we hold that the mandatory e-mail service requirement set forth in rule
2.516(b)(1) does not apply to service of pretrial proposals for settlement. In
the context of proposals for settlement, the mandatory e-mail service
requirement in rule 2.516(b)(1) is only triggered when the proposals are
attached to motions for acceptance or enforcement under section 768.79(3) or
rule 1.442(d) that are filed in court. The Boatrights attached their proposals
for settlement to their motion to tax attorneys’ fees and costs, filed with
their motion with the trial court, and had previously served their proposals
for settlement upon the tobacco companies’ counsel by U.S. Certified Mail.
D. Matte
v. Caplan, Wheaton v. Wheaton, and Douglas v. Zachry Industrial,
Inc.
v. Caplan, Wheaton v. Wheaton, and Douglas v. Zachry Industrial,
Inc.
The
tobacco companies cite to opinions they believe support a broad construction of
rule 2.516(b)(1) and contradict our interpretation of the rule. None of these
cases address the discrete issue before us — namely, whether the e-mail
service requirement in rule 2.516(b)(1) applies to proposals for settlement.
Instead, these cases either decide ancillary issues which do not address the
interplay between rule 2.516(a) and 2.516(b)(1), or simply do not relate to
proposals for settlement at all. See Matte v. Caplan, 140 So. 3d
686, 689-90 (Fla. 4th DCA 2014) (holding that a motion for sanctions was
invalid because it did not comply with the e-mail formatting requirements in
rule 2.516(b)(1)(E)); see also Floyd v. Smith, 160 So. 3d 567,
569 (Fla. 1st DCA 2015) (implying that rule 2.516 governs proposals for
settlement, but ultimately holding that the absence of a certificate of service
did not render a proposal for settlement invalid where it was served by
e-mail); Courtney v. Catalina, Ltd., 130 So. 3d 739, 740 (Fla. 3d DCA
2014) (holding that a trial court erred in dismissing a case for lack of
prosecution where there was no evidence that plaintiff received a
computer-generated notice of inactivity); Milton v. Reyes, 22 So. 3d 624,
624 (Fla. 3d DCA 2009) (holding that a proposal for settlement could not
support a fee award because it failed to include any certificate of service
whatsoever, as required by the former version of rule 1.080).
tobacco companies cite to opinions they believe support a broad construction of
rule 2.516(b)(1) and contradict our interpretation of the rule. None of these
cases address the discrete issue before us — namely, whether the e-mail
service requirement in rule 2.516(b)(1) applies to proposals for settlement.
Instead, these cases either decide ancillary issues which do not address the
interplay between rule 2.516(a) and 2.516(b)(1), or simply do not relate to
proposals for settlement at all. See Matte v. Caplan, 140 So. 3d
686, 689-90 (Fla. 4th DCA 2014) (holding that a motion for sanctions was
invalid because it did not comply with the e-mail formatting requirements in
rule 2.516(b)(1)(E)); see also Floyd v. Smith, 160 So. 3d 567,
569 (Fla. 1st DCA 2015) (implying that rule 2.516 governs proposals for
settlement, but ultimately holding that the absence of a certificate of service
did not render a proposal for settlement invalid where it was served by
e-mail); Courtney v. Catalina, Ltd., 130 So. 3d 739, 740 (Fla. 3d DCA
2014) (holding that a trial court erred in dismissing a case for lack of
prosecution where there was no evidence that plaintiff received a
computer-generated notice of inactivity); Milton v. Reyes, 22 So. 3d 624,
624 (Fla. 3d DCA 2009) (holding that a proposal for settlement could not
support a fee award because it failed to include any certificate of service
whatsoever, as required by the former version of rule 1.080).
The
most analogous of these cases is Matte, where a defendant served a
motion for sanctions on plaintiff pursuant to section 57.105, Florida Statutes
(2013), shortly after being served with plaintiff’s complaint. 140 So. 3d at
687-88. The motion for sanctions was served on plaintiff by e-mail, but not
filed due to the twenty-one-day grace period in section 57.105(4). The e-mail
failed to comply with a number of formatting requirements in rule
2.516(b)(1)(E). Specifically, the e-mail failed to: (1) include a PDF copy of
the motion or a link to the motion on a website maintained by the clerk; (2)
include the words “SERVICE OF DOCUMENT” in the e-mail’s subject line; and (3)
include the case number, the name of each initial party, the title of each
document served, and the sender’s name and telephone number in the body of the
e-mail. Id. Eventually, defendant filed a timely motion for sanctions
with the trial court. Id. at 688. Plaintiff argued that the motion was
never properly served because defendant’s e-mail to plaintiff failed to comply
with rule 2.516(b)(1)(E). Id. The trial court denied the motion. Id.
On appeal, the Fourth District affirmed the judgment of the trial court. Id.
at 690. The Fourth District began its analysis of rule 2.516 by interpreting
subsection (b)(1). Then, without analyzing rule 2.516(a), the Fourth District
moved directly to the requirements in 2.516(b)(1)(E). Because the defendant did
not comply with the requirements, the Fourth District upheld the ruling of the
trial court.
most analogous of these cases is Matte, where a defendant served a
motion for sanctions on plaintiff pursuant to section 57.105, Florida Statutes
(2013), shortly after being served with plaintiff’s complaint. 140 So. 3d at
687-88. The motion for sanctions was served on plaintiff by e-mail, but not
filed due to the twenty-one-day grace period in section 57.105(4). The e-mail
failed to comply with a number of formatting requirements in rule
2.516(b)(1)(E). Specifically, the e-mail failed to: (1) include a PDF copy of
the motion or a link to the motion on a website maintained by the clerk; (2)
include the words “SERVICE OF DOCUMENT” in the e-mail’s subject line; and (3)
include the case number, the name of each initial party, the title of each
document served, and the sender’s name and telephone number in the body of the
e-mail. Id. Eventually, defendant filed a timely motion for sanctions
with the trial court. Id. at 688. Plaintiff argued that the motion was
never properly served because defendant’s e-mail to plaintiff failed to comply
with rule 2.516(b)(1)(E). Id. The trial court denied the motion. Id.
On appeal, the Fourth District affirmed the judgment of the trial court. Id.
at 690. The Fourth District began its analysis of rule 2.516 by interpreting
subsection (b)(1). Then, without analyzing rule 2.516(a), the Fourth District
moved directly to the requirements in 2.516(b)(1)(E). Because the defendant did
not comply with the requirements, the Fourth District upheld the ruling of the
trial court.
We
decline to apply Matte to the case before us. The Matte decision
does not concern proposals for settlement. As such, it does not directly
address the question we are called upon to decide here. Moreover, the Matte
court did not analyze whether the scope of documents to be filed by e-mail in
rule 2.516(b)(1) was limited by rule 2.516(a)’s confining that scope to
documents filed in an action. In fact, the Matte opinion does not
contain any analysis of rule 2.516(a) — it simply presumes that preliminary
service of a motion for sanctions under section 57.105(4) must be accomplished
by e-mail. As we have already explained, rule 2.516 contains no such
requirement for documents which are not required to be filed with the
court at the time at which that document is served. Similar to proposals for
settlement, motions for sanctions under section 57.105 are not filed in court
unless it is necessary to enforce them. Compare § 57.105(4), with
§ 768.79(3), and Fla. R. Civ. P. 1.442(d). The Matte court’s
failure to recognize the proper scope of documents subject to e-mail service
requirement constitutes a fatal flaw in that court’s reasoning. Accordingly, we
will not extend that reasoning to the milieu of service of pretrial proposals
for settlement.
decline to apply Matte to the case before us. The Matte decision
does not concern proposals for settlement. As such, it does not directly
address the question we are called upon to decide here. Moreover, the Matte
court did not analyze whether the scope of documents to be filed by e-mail in
rule 2.516(b)(1) was limited by rule 2.516(a)’s confining that scope to
documents filed in an action. In fact, the Matte opinion does not
contain any analysis of rule 2.516(a) — it simply presumes that preliminary
service of a motion for sanctions under section 57.105(4) must be accomplished
by e-mail. As we have already explained, rule 2.516 contains no such
requirement for documents which are not required to be filed with the
court at the time at which that document is served. Similar to proposals for
settlement, motions for sanctions under section 57.105 are not filed in court
unless it is necessary to enforce them. Compare § 57.105(4), with
§ 768.79(3), and Fla. R. Civ. P. 1.442(d). The Matte court’s
failure to recognize the proper scope of documents subject to e-mail service
requirement constitutes a fatal flaw in that court’s reasoning. Accordingly, we
will not extend that reasoning to the milieu of service of pretrial proposals
for settlement.
We
are instead persuaded by the analysis in Douglas v. Zachry Industrial,
Inc., No. 6:13-cv-1943-Orl-40GJK, 2015 WL 6750803, at *2-3 (M.D. Fla. Nov.
05, 2015). The Douglas plaintiff served a proposal for settlement upon
defendant by e-mail, and the text of the proposal specifically provided that
the proposal would not be filed with the court unless filing was necessary to
enforce the proposal. Id. at *1. Ultimately, the proposal was rejected
and plaintiff moved for attorneys’ fees and costs on the basis of the proposal.
Id. As in Matte, the defendant argued that the proposal was
invalid because it failed to comply with the formatting requirements of rule
2.516(b)(1)(E) — it did not contain the words “SERVICE OF COURT DOCUMENT” in
uppercase letters within the e-mail’s subject line. Douglas, 2015 WL 6750803,
at *1. Rather, the subject line contained all of these words in lowercase
letters. Id.
are instead persuaded by the analysis in Douglas v. Zachry Industrial,
Inc., No. 6:13-cv-1943-Orl-40GJK, 2015 WL 6750803, at *2-3 (M.D. Fla. Nov.
05, 2015). The Douglas plaintiff served a proposal for settlement upon
defendant by e-mail, and the text of the proposal specifically provided that
the proposal would not be filed with the court unless filing was necessary to
enforce the proposal. Id. at *1. Ultimately, the proposal was rejected
and plaintiff moved for attorneys’ fees and costs on the basis of the proposal.
Id. As in Matte, the defendant argued that the proposal was
invalid because it failed to comply with the formatting requirements of rule
2.516(b)(1)(E) — it did not contain the words “SERVICE OF COURT DOCUMENT” in
uppercase letters within the e-mail’s subject line. Douglas, 2015 WL 6750803,
at *1. Rather, the subject line contained all of these words in lowercase
letters. Id.
The
Douglas court held that the e-mail service requirement in rule 2.516 did
not apply to proposals for settlement. Id. at *2-3. Specifically, the Douglas
court held, as we do here, that rule 2.516(a) restricted the scope of the word
“documents” in rule 2.516(b)(1) to only those documents filed in court. Id.
at *2-3. Because rule 1.442(d) states that a proposal for settlement “shall
not” be filed, the Douglas court determined that the e-mail service
requirement did not apply to proposals for settlement. Id. at *2. And
because the e-mail service requirement did not apply, the e-mail formatting
requirements in rule 2.516(b)(1)(E) also did not apply. Id. at *2-3. In
addition, the Douglas court expressed disagreement with the holding of Matte.
Douglas, 2015 WL 6750803, at *3. We find the Douglas court’s
reading of rule 2.516(a) both persuasive and correct.
Douglas court held that the e-mail service requirement in rule 2.516 did
not apply to proposals for settlement. Id. at *2-3. Specifically, the Douglas
court held, as we do here, that rule 2.516(a) restricted the scope of the word
“documents” in rule 2.516(b)(1) to only those documents filed in court. Id.
at *2-3. Because rule 1.442(d) states that a proposal for settlement “shall
not” be filed, the Douglas court determined that the e-mail service
requirement did not apply to proposals for settlement. Id. at *2. And
because the e-mail service requirement did not apply, the e-mail formatting
requirements in rule 2.516(b)(1)(E) also did not apply. Id. at *2-3. In
addition, the Douglas court expressed disagreement with the holding of Matte.
Douglas, 2015 WL 6750803, at *3. We find the Douglas court’s
reading of rule 2.516(a) both persuasive and correct.
After
briefing and oral argument in this case, the Third District held that proposals
for settlement must comply with rule 2.516(b)(1)’s mandatory e-mail service
requirement. Wheaton v. Wheaton, 42 Fla. L. Weekly D411, D412 (Fla. 3d
DCA Feb. 15, 2017). There, the appellant served a proposal for settlement by
e-mail. Id. at D411. It was undisputed that this e-mailed proposal
neglected to comply with “certain requirements for service by e-mail” set forth
in rule 2.516(b)(1)(E)(i)-(v). Id. As such, the trial court ruled that
the proposal for settlement could not support an award of attorneys’ fees, and
the Third District affirmed. Id. at D412.
briefing and oral argument in this case, the Third District held that proposals
for settlement must comply with rule 2.516(b)(1)’s mandatory e-mail service
requirement. Wheaton v. Wheaton, 42 Fla. L. Weekly D411, D412 (Fla. 3d
DCA Feb. 15, 2017). There, the appellant served a proposal for settlement by
e-mail. Id. at D411. It was undisputed that this e-mailed proposal
neglected to comply with “certain requirements for service by e-mail” set forth
in rule 2.516(b)(1)(E)(i)-(v). Id. As such, the trial court ruled that
the proposal for settlement could not support an award of attorneys’ fees, and
the Third District affirmed. Id. at D412.
The
Wheaton court focused on rule 2.516(b)(1)’s language specifying that the
e-mail service requirement applies to documents that are either “required or
permitted to be served upon another.” Id. (citing Fla. R. Jud.
Admin 2.516(b)(1)) (emphasis added). The Wheaton court acknowledged that
proposals for settlement are not required to be contemporaneously filed upon
service, and therefore are not covered by rule 2.516(a). Id. However,
the Wheaton court reasoned that the e-mail service requirement extends
to proposals for settlement anyway, because proposals for settlement qualify as
documents “permitted to be served” under rule 2.516(b)(1). Id. The Wheaton
court then adopted the reasoning in Matte and Floyd and
essentially created a bright line rule that e-mail is the exclusive method for
service upon a party for any document whatsoever. Id. We respectfully
disagree with the Wheaton court.
Wheaton court focused on rule 2.516(b)(1)’s language specifying that the
e-mail service requirement applies to documents that are either “required or
permitted to be served upon another.” Id. (citing Fla. R. Jud.
Admin 2.516(b)(1)) (emphasis added). The Wheaton court acknowledged that
proposals for settlement are not required to be contemporaneously filed upon
service, and therefore are not covered by rule 2.516(a). Id. However,
the Wheaton court reasoned that the e-mail service requirement extends
to proposals for settlement anyway, because proposals for settlement qualify as
documents “permitted to be served” under rule 2.516(b)(1). Id. The Wheaton
court then adopted the reasoning in Matte and Floyd and
essentially created a bright line rule that e-mail is the exclusive method for
service upon a party for any document whatsoever. Id. We respectfully
disagree with the Wheaton court.
As
explained, rule 2.516(b)(1)’s mandatory service requirement is confined to
every pleading subsequent to the initial pleading and documents that are filed
in court — it does not extend to literally every document which is due to be
served. Our decision to reject Wheaton‘s holding is grounded in our
reading of the plain language of section 768.79(3) and rule 1.442(d). In no
uncertain terms, the legislature and supreme court have emphatically directed
that parties “shall” serve proposals for settlement on opposing parties — such
service is not merely “permitted.” § 768.79(3); Fla. R. Civ. P. 1.442(d).
Moreover, the plain language of rule 2.516(a) does not imply that “every
pleading subsequent to the initial pleading and every other document filed in a
court proceeding” are the only types of documents which are “required” to be
served — it merely states that they are the only types of documents which must
be served “in accordance with [rule 2.516].” To hold that rule 2.516(b)(1)’s
mandatory e-mail service requirement applies to proposals for settlement, or
any document not explicitly contemplated by rule 2.516(a), we would have to
rewrite rule 2.516(a) and turn a blind eye to section 768.79(3) and rule
1.442(d).
explained, rule 2.516(b)(1)’s mandatory service requirement is confined to
every pleading subsequent to the initial pleading and documents that are filed
in court — it does not extend to literally every document which is due to be
served. Our decision to reject Wheaton‘s holding is grounded in our
reading of the plain language of section 768.79(3) and rule 1.442(d). In no
uncertain terms, the legislature and supreme court have emphatically directed
that parties “shall” serve proposals for settlement on opposing parties — such
service is not merely “permitted.” § 768.79(3); Fla. R. Civ. P. 1.442(d).
Moreover, the plain language of rule 2.516(a) does not imply that “every
pleading subsequent to the initial pleading and every other document filed in a
court proceeding” are the only types of documents which are “required” to be
served — it merely states that they are the only types of documents which must
be served “in accordance with [rule 2.516].” To hold that rule 2.516(b)(1)’s
mandatory e-mail service requirement applies to proposals for settlement, or
any document not explicitly contemplated by rule 2.516(a), we would have to
rewrite rule 2.516(a) and turn a blind eye to section 768.79(3) and rule
1.442(d).
In
our final analysis, we respectfully diverge from the Wheaton court’s
construction of the applicable statute and rules of court. In our view, the
plain and unambiguous language of rule 2.516(b)(1)’s mandatory e-mail service
requirement is confined to “document[s] filed in any court proceeding,” in
conjunction with the text of subsection (a). See Hechtman, 840
So. 2d at 996; Jones, 793 So. 2d at 914-15. The Wheaton court’s
construction has great practicality in that it creates a bright-line e-mail
service requirement for all documents due to be served upon a party, but this
construction is not buttressed by the text of rule 2.516 and is contrary to the
plain language of section 768.79(3) and rule 1.442(d).
our final analysis, we respectfully diverge from the Wheaton court’s
construction of the applicable statute and rules of court. In our view, the
plain and unambiguous language of rule 2.516(b)(1)’s mandatory e-mail service
requirement is confined to “document[s] filed in any court proceeding,” in
conjunction with the text of subsection (a). See Hechtman, 840
So. 2d at 996; Jones, 793 So. 2d at 914-15. The Wheaton court’s
construction has great practicality in that it creates a bright-line e-mail
service requirement for all documents due to be served upon a party, but this
construction is not buttressed by the text of rule 2.516 and is contrary to the
plain language of section 768.79(3) and rule 1.442(d).
CONCLUSION
The
trial court erred in denying the Boatrights’ motion for attorneys’ fees and
costs for failing to strictly comply with section 768.79 and rule 1.442. The
mandatory e-mail service requirement in rule 2.516(b)(1) does not apply to
pretrial proposals for settlement. The Boatrights strictly complied with the
statute and corresponding procedural rules governing the service of proposals
for settlement by: (1) serving their proposals via U.S. Certified Mail; and (2)
attaching to each of their proposals a certificate of service. We reverse the
order of the trial court and remand for an award of attorneys’ fees and costs
in favor of the Boatrights. The amount of the award is to be determined by the
trial court. The court’s award of costs to the Boatrights pursuant to section
57.041 is affirmed. We certify conflict with the Third District’s decision in Wheaton.
trial court erred in denying the Boatrights’ motion for attorneys’ fees and
costs for failing to strictly comply with section 768.79 and rule 1.442. The
mandatory e-mail service requirement in rule 2.516(b)(1) does not apply to
pretrial proposals for settlement. The Boatrights strictly complied with the
statute and corresponding procedural rules governing the service of proposals
for settlement by: (1) serving their proposals via U.S. Certified Mail; and (2)
attaching to each of their proposals a certificate of service. We reverse the
order of the trial court and remand for an award of attorneys’ fees and costs
in favor of the Boatrights. The amount of the award is to be determined by the
trial court. The court’s award of costs to the Boatrights pursuant to section
57.041 is affirmed. We certify conflict with the Third District’s decision in Wheaton.
Affirmed
in part, reversed in part; remanded for award of attorneys’ fees and costs;
conflict certified. (SILBERMAN and LaROSE, JJ., Concur.)
in part, reversed in part; remanded for award of attorneys’ fees and costs;
conflict certified. (SILBERMAN and LaROSE, JJ., Concur.)
__________________
1Engle
v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
2The
Boatrights also moved to recover costs pursuant to section 57.041, Florida
Statutes (2013), which was granted by the trial court. That basis for the award
of costs is not being challenged in this appeal.
Boatrights also moved to recover costs pursuant to section 57.041, Florida
Statutes (2013), which was granted by the trial court. That basis for the award
of costs is not being challenged in this appeal.
3“The
same principles of construction apply to court rules as apply to statutes.” Mitchell
v. State, 911 So. 2d 1211, 1214 (Fla. 2005) (quoting Gervais v. City of
Melbourne, 890 So. 2d 412, 414 (Fla. 5th DCA 2004)).
same principles of construction apply to court rules as apply to statutes.” Mitchell
v. State, 911 So. 2d 1211, 1214 (Fla. 2005) (quoting Gervais v. City of
Melbourne, 890 So. 2d 412, 414 (Fla. 5th DCA 2004)).
4In
2012, the certificate of service in the now-defunct rule 1.080(f) was moved to
rule 2.516(f). See In re Amendments to Fla. R. Jud. Admin., Fla. R.
Civ. P., Fla. R. Crim. P., Fla. Prob. R., Fla. R. Traff. Ct., Fla. Sm. Cl. R.,
Fla. R. Juv. P., Fla. R. App. P., Fla. Fam. L. R. P. — E-Mail Serv. Rule,
102 So. 3d 505, 509-10 (Fla. 2012). We invite the drafters of the Florida Rules
of Civil Procedure to clarify rule 1.442(c)(2)(G), to the extent that the
certificate of the service is now contained within rule 2.516(f).
2012, the certificate of service in the now-defunct rule 1.080(f) was moved to
rule 2.516(f). See In re Amendments to Fla. R. Jud. Admin., Fla. R.
Civ. P., Fla. R. Crim. P., Fla. Prob. R., Fla. R. Traff. Ct., Fla. Sm. Cl. R.,
Fla. R. Juv. P., Fla. R. App. P., Fla. Fam. L. R. P. — E-Mail Serv. Rule,
102 So. 3d 505, 509-10 (Fla. 2012). We invite the drafters of the Florida Rules
of Civil Procedure to clarify rule 1.442(c)(2)(G), to the extent that the
certificate of the service is now contained within rule 2.516(f).
5It
would be strange if the certificate of service form set forth in rule 2.516(f)
listed an impermissible method of service. After all, a certificate of
service in compliance with rule 2.516(f) evidences prima facie proof of
service. Therefore, we suggest that litigants who wish to serve pretrial
proposals for settlement look to the methods of service listed in 2.516(f) for
guidance.
would be strange if the certificate of service form set forth in rule 2.516(f)
listed an impermissible method of service. After all, a certificate of
service in compliance with rule 2.516(f) evidences prima facie proof of
service. Therefore, we suggest that litigants who wish to serve pretrial
proposals for settlement look to the methods of service listed in 2.516(f) for
guidance.
6The
manner in which the tobacco companies arrive at this conclusion is not
immediately obvious, but they believe that the language referencing a
certificate of service in rule 1.442(d) also incorporates the entirety of rule
2.516 into section 768.79 and rule 1.442. Even if rule 1.442(d) refers to
something other than a certificate of service, we disagree with the tobacco
companies, as explained below.
manner in which the tobacco companies arrive at this conclusion is not
immediately obvious, but they believe that the language referencing a
certificate of service in rule 1.442(d) also incorporates the entirety of rule
2.516 into section 768.79 and rule 1.442. Even if rule 1.442(d) refers to
something other than a certificate of service, we disagree with the tobacco
companies, as explained below.
* *
*
*