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February 24, 2017 by admin

Rules of Judicial Administration — Proposal for settlement — Service by e-mail — Attorney’s fees — Trial court properly denied motion for attorney’s fees pursuant to proposal for settlement because the service failed to comply with Rule of Judicial Administration 2.516, which sets forth requirements for service by e-mail

42
Fla. L. Weekly D411b
Top of Form

Rules
of Judicial Administration — Proposal for settlement — Service by e-mail —
Attorney’s fees — Trial court properly denied motion for attorney’s fees
pursuant to proposal for settlement because the service failed to comply with
Rule of Judicial Administration 2.516, which sets forth requirements for
service by e-mail — No merit to claim that proposals for settlement, which are
prohibited from being filed with the court contemporaneously with service, fall
outside the scope of rule 2.516 — A proposal for settlement falls clearly
within the scope of rule 2.516(b) and is subject to the rule’s requirements

SANDRA
KENT WHEATON, Appellant, vs. MARDELLA WHEATON, Appellee. 3rd District. Case No.
3D16-490. L.T. Case No. 15-190-P. Opinion filed February 15, 2017. An Appeal
from a non-final order from the Circuit Court for Monroe County, Luis M.
Garcia, Judge. Counsel: Hershoff, Lupino & Yagel and Robert C. Stober
(Tavernier), for appellant. Vernis & Bowling of the Florida Keys and
Matthew S. Francis (Islamorada), for appellee.

(Before
SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.)

(EMAS,
J.) Appellant Sandra Wheaton seeks review of the trial court’s order denying
her motion for attorney’s fees pursuant to a proposal for settlement. The trial
court denied the motion because the proposal for settlement, which was served
upon Appellee by e-mail, failed to comply with Florida Rule of Judicial
Administration 2.516, which sets forth certain requirements for service by
e-mail. Appellant contends that rule 2.516, and its e-mail requirements, are
inapplicable because a proposal for settlement is not filed contemporaneously
with the court. A trial court’s interpretation of court rules is reviewed de
novo, and “[o]ur courts have long recognized that the rules of construction
applicable to statutes also apply to the construction of rules.” Saia Motor
Freight Line, Inc. v. Reid
, 930 So. 2d 598, 599 (Fla. 2006) (quoting Brown
v. State
, 715 So. 2d 241, 243 (Fla. 1998)). We affirm the trial court’s
ruling, and hold that proposals for settlement served by e-mail must comply
with the e-mail service provisions of rule 2.516.

The
relevant portions of rule 2.516 provide:

(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
,
except applications for witness subpoenas and documents served by formal notice
or required to be served in the manner provided for service of formal notice,
must be served in accordance with this rule on each party. No service need be
made on parties against whom a default has been entered, except that pleadings
asserting new or additional claims against them must be served in the manner
provided for service of summons.

(b) Service; How Made. When
service is required or permitted to be made upon a party represented by an
attorney, service must be made upon the attorney unless service upon the party
is ordered by the court.

(1) Service by Electronic
Mail (“e-mail”).
All 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. A filer of an electronic document
has complied with this subdivision if the Florida Courts e-filing Portal
(“Portal”) or other authorized electronic filing system with a supreme court
approved electronic service system (“e-Service system”) served the document by
e-mail or provided a link by e-mail to the document on a website maintained by
a clerk (“e-Service”). The filer of an electronic document must verify that the
Portal or other e-Service system uses the names and e-mail addresses provided
by the parties pursuant to subdivision (b)(1)(A).

(Emphasis
added.)

The
rule thereafter delineates a variety of formatting and content requirements for
any document that is served by e-mail. See rule 2.516(b)(1)(E)(i)-(iv).1 It is undisputed that the instant
proposal for settlement, served by e-mail, did not meet the service by e-mail
requirements of rule 2.516.

However,
in asserting that proposals for settlement do not fall within the scope of rule
2.516, Appellant relies upon the language in rule 2.516(a) which provides 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.” Appellant contends that because the proposal for
settlement is neither a pleading nor a “document filed in any court
proceeding,” it is not subject to the requirements of rule 2.516.

It
is true, of course, that both the proposal for settlement statute (section
768.79, Florida Statutes) and the proposal for settlement rule (Florida Rule of
Civil Procedure 1.442) prohibit counsel from filing a proposal for settlement
contemporaneously with service of the proposal. In fact, a proposal for
settlement may only be filed with the court if the proposal is accepted or if
filing is necessary for enforcement purposes.2 Appellant asserts that compliance
with rule 2.516 would be required only upon the subsequent filing of a motion
for enforcement of the proposal for settlement (since such a motion would be
served and filed contemporaneously).

While
Appellant’s premise is correct (a party is not permitted to file her proposal
for settlement contemporaneously with service of the proposal), we disagree
with her conclusion, as it focuses on the incorrect portion of the rule. The
relevant language is contained in subdivision (b) of rule 2.516, which provides
in pertinent part: “All 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.” In this case, the
document in question (the proposal for settlement) is “permitted to be served
on another party.” And because the parties did not “otherwise stipulate,” and
because the rule does not “otherwise provide,”3 this proposal for settlement “must
be served by e-mail” and therefore must be served in compliance with the e-mail
requirements of rule 2.516, regardless of whether the document is
contemporaneously filed with the court. We find this language plain and
unambiguous, and hold that a proposal for settlement falls clearly within the
scope of rule 2.516(b) and is subject to that rule’s requirements.

In
so holding, we agree with the decision and analysis of our sister court in Floyd
v. Smith
, 160 So. 3d 567 (Fla. 1st DCA 2015) (holding that a proposal for
settlement served by e-mail must comply with the e-mail service requirements of
rule 2.516). See also Matte v. Caplan, 140 So. 3d 686 (Fla. 4th
DCA 2014) (affirming trial court’s denial of a motion for attorney’s fees
sought as a sanction pursuant to section 57.105(4), Florida Statutes (2013),
because the motion was not served in strict compliance with rule 2.516, and
implicitly recognizing that a motion for attorney’s fees under section
57.105(4) must comply with rule 2.516 even though the motion cannot be filed
contemporaneously with service on opposing counsel).

Affirmed.

__________________

1Rule
2.516(b)(1)(E) provides:

Format of E-mail for Service.
Service of a document by e-mail is made by an e-mail sent to all addresses
designated by the attorney or party with either (a) a copy of the document in
PDF format attached or (b) a link to the document on a website maintained by a
clerk.

(i) All documents served by
e-mail must be sent by an e-mail message containing a subject line beginning
with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by
the case number of the proceeding in which the documents are being served.

(ii) The body of the e-mail
must identify the court in which the proceeding is pending, the case number,
the name of the initial party on each side, the title of each document served
with that e-mail, and the name and telephone number of the person required to
serve the document.

(iii) Any document served by
e-mail may be signed by any of the “/s/,” “/s,” or “s/” formats.

(iv) Any e-mail which,
together with its attached documents, exceeds the appropriate size limitations
specified in the Florida Supreme Court Standards for Electronic Access to the
Court, must be divided and sent as separate e-mails, no one of which may exceed
the appropriate size limitations specified in the Florida Supreme Court
Standards for Electronic Access to the Court and each of which must be
sequentially numbered in the subject line.

2Rule
1.442(d) provides: “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.” Section 768.79(3), Fla. Stat. (2015) provides similarly: “The offer
shall 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.”

3To
the contrary, subdivision (d) of rule 2.516 provides in pertinent part: “All
documents must be filed with the court either before service or immediately
thereafter, unless otherwise provided for by general law or other rules.”
This provision implicitly acknowledges that even if a document (such as a
proposal for settlement) is not to be filed contemporaneously, it nevertheless
falls within the purview of this rule. Had the Florida Supreme Court intended
to exempt such served-but-not-contemporaneously-filed documents from the
requirements of rule 2.516, it surely would have said so in subdivision (d).

* *
*

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