42
Fla. L. Weekly D2281a

Attorney’s
fees — Proposal for settlement — Where defendants had actual notice of
plaintiff’s proposal for settlement, and plaintiff satisfied requirements of
section 768.79 on entitlement, it was error to deny attorney’s fees because
initial proposals were not emailed under rule 2.516(a) — Offer of judgment is
not a document “filed in any court proceeding” to which rule applied

JOHN MCCOY, Appellant, v. R.J.
REYNOLDS TOBACCO COMPANY, Individually and As Successor By Merger To BROWN
& WILLIAMSON TOBACCO CORPORATION, Individually and As Successor By Merger
To THE AMERICAN TOBACCO COMPANY, A Foreign Corporation; PHILIP MORRIS – USA,
INC., A Foreign Corporation; LORILLARD TOBACCO COMPANY, A Foreign Corporation;
LIGGETT GROUP LLC, (f/k/a Liggett Group, Inc., f/k/a Liggett & Myers
Tobacco Company); and VECTOR GROUP LTD., INC., (f/k/a Brooke Group, Ltd.), A
Foreign Corporation, Appellees. 4th District. Case No. 4D16-1378. October 25,
2017. Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy III, Judge; L.T. Case No. 08-25806 CACE (19) and
08-80000 CACE (19). Counsel: Celene H. Humphries, Shea T. Moxon, Maegen P. Luka
and Thomas J. Seider of Brannock & Humphries, Tampa; and Scott Schlesinger,
Steven Hammer, Jonathan R. Gdanski and Brittany Chambers of Schlesinger Law
Offices, P.A., Fort Lauderdale, for appellant. Scott Michael Edson of King
& Spalding LLP, Washington, D.C.; Val Leppert, William L. Durham II, and
Chad A. Peterson of King & Spalding LLP, Atlanta, Georgia; and Stephanie E.
Parker and John M. Walker of Jones Day, Atlanta, Georgia, for appellees, R.J.
Reynolds Tobacco Company and Lorillard Tobacco Company. Geoffrey J. Michael of
Arnold & Porter LLP, Washington, D.C., for appellee, Philip Morris USA Inc.

(GROSS, J.) We reverse the circuit
court’s order denying a motion for attorney’s fees based upon a 2014 proposal
for settlement under section 768.79, Florida Statutes (2015).1

On July 24, 2014, the plaintiff/appellant
served a proposal for settlement on each of three defendants. The proposals
were served by U.S. certified mail. The plaintiff also filed a Notice of
Serving Proposal for Settlement via e-mail on the same date.

The defendants had actual knowledge
of the proposals for settlement and did not accept them.

After a trial, the plaintiff
obtained a verdict that entitled him to attorney’s fees under section 768.79.
The plaintiff moved for attorney’s fees. The defendants opposed an award on
procedural grounds that he failed to e-mail the proposals under Florida Rule of
Judicial Administration 2.516.

The circuit court denied the motion
for fees for the failure to comply with Rule 2.516.

Where a party has actual notice of
an offer of settlement, and the offering party has satisfied the requirements
of section 768.79 on entitlement, to deny recovery because the initial offer
was not e-mailed is to allow the procedural tail of the law to wag the
substantive dog. See Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So.
3d 391, 395-96 (Fla. 2016). We agree with the analysis of Judge Badalamenti in Boatright
v. Philip Morris USA Inc., 218 So. 3d 962 (Fla. 2d DCA 2017).

The focus of the statute is on
actual notice — an offer of judgment is required to be “served 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.” § 768.79(3),
Fla. Stat. (2014). Echoing the requirements of the statute, Florida Rule of
Civil Procedure 1.442(d) provides that an offer “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.”

Identifying those documents for
which e-mail service is required, Rule 2.516(a) provides, in pertinent 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.

(Emphasis added). An offer of
judgment is not a pleading. See Fla. R. Civ. P. 1.100(a). At the time it
is initially served, an offer of judgment is not a document “filed in any court
proceeding”; both section 768.79(3) and Rule 1.442(d) expressly state that it
is not to be filed. Under the plain language of Rule 2.516(a), then, the
initial offer of judgment is outside of the e-mail requirements of that rule.

To arrive at a different conclusion,
Wheaton v. Wheaton imports language from rule 2.516(b) to add words to
the plain language of 2.516(a). 217 So. 3d 125, 126 (Fla. 3d DCA 2017). Instead
of focusing on subsection 2.516(a), which specifies when e-mail service is
“required,” the Wheaton court looked to subsection 2.516(b) to hold that
e-mail service was required for the initial delivery of an offer of judgment.

We disagree with Wheaton; subsection
(a) is not ambiguous, so a court should not add words to manipulate its
meaning. Even a strict construction of Rule 2.516(a) should consider “only the
literal words of [the] writing.” Strict Construction, Black’s Law Dictionary
(8th ed.) (Brian Garner ed.) p. 332.2

We reverse the circuit court order
insofar as it applies to the 2014 offers of judgment. (CIKLIN and KLINGENSMITH,
JJ., concur.)

__________________

1Because we
find the 2014 proposal for settlement to be valid, we do not reach the validity
of separate proposals for settlement served by e-mail in 2015.

2Section
768.79, Florida Statutes (2014) was enacted in 1986 by the legislature for the
purpose of “encourag[ing] parties’ to settle claims without going to trial.” Aspen
v. Bayless, 564 So. 2d 1081, 1083 (Fla. 1990). After three decades of
litigation, most lawyers and judges question whether Rule 1.442 and the statute
are “fulfilling [their] intended purpose of encouraging settlement or at times
is having the opposite effect of increasing litigation.” Campbell v. Goldman,
959 So. 2d 223, 227 (Fla. 2007) (Pariente, J., specially concurring). For an
excellent discussion about the tension between the substantive law and
procedural rules in this area, see Lauren Rehm, A Proposal for
Settling the Interpretation of Florida’s Proposals for Settlement, 64 Fla.
L. Rev. 1811 (2012).

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