43
Fla. L. Weekly D22cop of Form

Attorney’s
fees — Proposal for settlement — Trial court did not err in finding that
service requirements of Rule 2.516 do not apply to proposals for settlement —
Conflict certified

OLDCASTLE SOUTHERN GROUP, INC., A
GEORGIA CORPORATION, Appellant, v. RAILWORKS TRACK SYSTEMS, INC., A NEVADA
CORPORATION AUTHORIZED TO TRANSACT BUSINESS IN THE STATE OF FLORIDA, Appellee.
1st District. Case No. 1D17-48. Opinion filed December 21, 2017. An appeal from
the Circuit Court for Duval County. Thomas M. Beverly, Judge. Counsel: Peter P.
Murnaghan and Jill K. Schmidt of Murnaghan & Ferguson, P.A., Tampa, for
Appellant. Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; Eric L.
Leach and C. Ryan Eslinger of Milton, Leach, Whtiman, D’Andrea & Eslinger,
P.A., Jacksonville, for Appellee.

(BILBREY, J.) Railworks Track
Systems, Inc., the plaintiff at trial, sent a proposal for settlement1 by email to Oldcastle Southern Group,
Inc., the defendant. The proposal was received by Oldcastle, not accepted, and
then following trial Railworks received a judgment more than 25 percent greater
than the amount demanded in the proposal. See § 768.79(1), Fla. Stat.
(2014). Oldcastle contends the proposal had to be served in accordance with
rule 2.516, Florida Rules of Judicial Administration, and since it was not
Railworks was not entitled to an award of attorneys’ fees. We hold that the
proposal did not have to be served in accordance with rule 2.516. We also
reject without further comment Oldcastle’s argument that the trial court
awarded an unreasonably high hourly rate to Railworks’ attorneys and paralegal.

It is undisputed that Railworks’
proposal for settlement did not contain a subject line on the email beginning
with “SERVICE OF COURT DOCUMENT”; did not include the case number in the
service line; and did not include in the body of the email the case number, the
court where the case was pending, the name of the party, or the title of the
document served — all of which would be required if rule 2.516(b)(1)(E)
applied.2 Oldcastle contends that these
omissions mean that the proposal was not served as required by rule 2.516, was
therefore invalid, and the award of fees was error.

There is a split of authority among
other district courts as to whether a proposal for settlement must be served as
provided by rule 2.516. Compare Wheaton v. Wheaton, 217 So. 3d 125 (Fla.
3d DCA 2017), rev. granted, 2017 WL 4785810 (Fla. October 24, 2017), with
McCoy v. R.J. Reynolds Tobacco Co., 42 Fla. L. Weekly D2281, 2017 WL
4812662 (Fla. 4th DCA October 25, 2017), and Boatright v. Philip
Morris USA, Inc., 218 So. 3d 962 (Fla. 2d DCA 2017). We adopt the view of McCoy
and Boatright and hold that compliance with rule 2.516 is not required
when serving a proposal for settlement. We certify conflict with Wheaton.

Our review of the issue of
entitlement to fees is de novo. Kuhajda v. Borden Dairy Co. of Alabama, LLC,
202 So. 3d 391 (Fla. 2016). We construe the rules of court in the same manner
as we construe statutes. Saia Motor Freight Line, Inc. v. Reid, 930 So.
2d 598 (Fla. 2006). Section 768.79(3), Florida Statutes (2014), requires
service of the proposal, without specifying the manner of service, “upon the
party to whom it is made, but it shall not be filed unless it is accepted or
unless filing is necessary to enforce the provisions of this section.” Rule
2.516 provides, in part,

(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme
court administrative order specifies a different means of service, 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.

The parties agree that Railworks’
proposal for settlement was not a pleading. See Fla. R. Civ. P.
1.100(a). Oldcastle contends that the proposal falls under rule 2.516(a)’s
application to “every other document filed in any court proceeding” and
therefore “must be served in accordance with this rule.” Although — consistent
with section 768.79(3) — rule 1.442(d), Florida Rules of Civil Procedure,
requires “[a] proposal shall be served on the party or parties to whom it is
made,” it continues by stating that a proposal “shall not be filed unless
necessary to enforce the provisions of this rule.” We agree with McCoy
and Boatright that since the proposal for settlement is not to be filed
when it is served, the proposal is not included in the clause “every other
document filed in any court proceeding.” McCoy, 42 Fla. L. Weekly at
D2282, 2017 WL 4812662, at *1; Boatright, 218 So. 3d at 967.3

Oldcastle also makes an argument
concerning rule 2.516(d), which was not addressed in McCoy, Boatright,
or Wheaton. Rule 2.516(d), states in part, “Filing. All 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).
Oldcastle argues that the emphasized language supports its contention that the
proposal falls under rule 2.516(a) in that the proposal is an “other document”
but is not “filed in any court proceeding” due to application of general law
and rules, specifically section 768.79(3) and rule 1.442(d). In so arguing
Oldcastle attempts to use subsection (d) to expand the definition of “other
document” in subsection (a). We disagree with Oldcastle’s argument.

Oldcastle’s argument regarding rule
2.516(d) suffers from the same problem as the appellees’ argument in Boatright
regarding subsection (b). There, Judge Badalamenti stated,

[Appellees’]
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 email, 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). . . . It makes no sense for rule 2.516(b)(1)’s
email service requirement to apply to a broader scope of documents than
specified by 2.516(a), which is the portion of rule 2.516 defining scope.

Boatright, 218 So. 3d at 967. Subsection (a) of rule 2.516 concerns
service while subsection (d) concerns filing. Subsection (d) should not be read
to expand what is a document under subsection (a).

Based on the above, we find no error
in the trial court’s determination that the service requirements of rule 2.516
do not apply to proposals for settlement.

AFFIRMED; CONFLICT CERTIFIED. (RAY
and WINOKUR, JJ., CONCUR.)

__________________

1Rule 1.442, Florida Rules of Civil
Procedure, uses the term proposal for settlement while section 768.79, Florida
Statutes (2014), uses the term offer of judgment when made by a defendant or
demand for judgment when made by a plaintiff. For the sake of simplicity and
consistency the Appellee/plaintiff’s demand for judgment is referred to as a
proposal for settlement.

2Although immaterial to our
resolution of the case, the proposal attached to the email contained all of
this information. It is also undisputed that Oldcastle actually received the
proposal and was not prejudiced by the omissions.

3We also agree with Boatright
that Wheaton misconstrued our earlier opinion in Floyd v. Smith,
160 So. 3d 567 (Fla. 1st DCA 2015). Boatright, 218 So. 3d at 969-70. The
issue in Floyd was the application of rule 1.442(c)(2)(G)’s requirement
that the proposal had to contain “a certificate of service in the form required
by rule 1.080.” Floyd, 160 So. 3d at 569. Rule 1.080(a) explicitly
references rule 2.516, meaning that, unlike here, there was no question in Floyd
as to whether rule 2.516 applied to the limited issue in that case. Rule 2.516
was discussed in the context of whether the proposal had to contain a
certificate of service, and we held that it did not; but we did not consider
the issue of whether rule 2.516 applied to service of a proposal for
settlement. Floyd, 160 So. 3d at 569.

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