In the United States, the default is you pay your own attorney fees. Unless there is a statute or a contract the default applies. Litigators in Florida are not shy to seek fees from the other side. But how do we let the other party know that we will be seeking fees from them? This topic is the subject of massive disagreement that has reached the Florida Supreme Court where currently three cases are pending.
Three popular rules or statutes are used to shift fees: proposals for settlement (PPS) under Fla. R. Civ. P. 1.442; offer of judgment (OJ) under Fla. Stat. Section 768.79; and the sanctions rule of Fla. Stat. Section 57.105. Each rule has its particularities, but they all require that the document be “served” on the other party.
What Is Service?
Florida Rule of Judicial Administration 2.516 governs service. The rule tells us who to serve: “When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney.” The rule then tells us how: “all documents required or permitted to be served on another party must be served by email.” When you serve another attorney, the rule makes the default service by email, unless otherwise stipulated. Now, if the document you are serving was required to be filed, the e-filing portal e-service counts as service. When Florida e-filing is not involved you will have to serve the other attorney’s designated email or in the one listed in the Florida bar website. Rule 2.516(b) then tells us the specific format you have to follow when serving by email. The rule has 12 specific format requirements in your serving email. Three about the subject line, five about the body of the email, and four regarding the format of the document.
What Happens When Service Is Imperfect? It Depends
The answer to the situation when you omit one of the items in Rule 2.516(b)(1)(E) is the subject of a lot of litigation. It really depends, for now, on the type of fee-shifting option and on the district where your case sits.
In June 2014, the Fourth District was faced with a situation involving Rule 2.516 in Matte v. Caplan. Matte was a Section 57.105 case. Caplan objected to the Section 57.105 sanction because he said Matte had failed to serve the motion in compliance with Rule 2.516. The trial court agreed with Caplan and Matte appealed. The Fourth District, citing public policy concerns and predictability, agreed with Matte that the service of the Section 57.105 motion was defective, and that strict compliance was required.
In March 2017 came the Third District’s Wheaton v. Wheaton now pending in the Supreme Court. In Wheaton, Sandra Wheaton sought review of the trial court order denying her motion for fees pursuant to a PPS because it did not strictly comply with Rule 2.516(b)(1)(E). Appellant Wheaton argued that the “how” of Section (b)(1)(E) is subject to the “when required” in the preceding section (a) of the rule. And since section (a) says that only pleadings or documents “filed” with the court are subject to the rule, proposal for settlements, which are not required to be filed (and are not pleadings) are not subject to the specific requirements of 2.516(b)(1)(E). The Third District didn’t buy it. The court said that the appellant focused on the incorrect portion of the rule. That section (b) of 2.516 which provides that “all documents required or permitted to be served on other must be served by email, unless the parties otherwise or this rule otherwise provides” is the relevant portion to focus on. And since proposals for settlement are “permitted” to be filed, they are subject to the requirements of 2.516(b)(1)(E).
In April 2017 the Second District decided Boatright v. Philip Morris USA, also pending in the Supreme Court. Appellants—the Boatrights—had served via U.S. certified mail four different PPSs on each defendant in the case. Each PPS had an otherwise compliant paper certificate of service. The trial court held that the Boatrights were not entitled to fees because they did not serve their PPS by email, and therefore did not strictly comply with Section 768.79 and Rule 1.442. The Second District viewed things differently. The court said that Section (c)(2)(G) of 1.442 requires that the proposal have a certificate of service in the form required by Fla. R. Civ. P 1.080, which says nothing about the “form” of certificates of service and only mandates it when the document has to be “filed.” When a document has to be “filed” then it must comply with 2.516 (b). Since PPSs under 1.442 and OJ under Section 768.79 are not required to be filed, the Second held that the Boatrights strictly complied. The key logic for the Second’s decision is its analysis of the interplay between section (a) and (b)(1) in 2.516. The appellee (Phillip Morris) wanted the court to interpret the “all documents required or permitted to be served on another party must be served by email” of (b)(1) in isolation and thus, to include OJ and PPSs which are only required to be “served.” The court disagreed because it thought (b)(1) has to be read in the context of section (a) which limits the rule to “pleadings and every other document filed.” The court said that when “reading Rule 2.516(a) and (b)(1) together, the word “documents” in subsection (b)(1) is confined in meaning to “documents filed in any court proceeding,” … of subsection (a).”
The Second expressed its disagreement with the Fourth’s Matte v. Caplan saying that that case was limited to Section 57.105 sanctions motions, and that the Matte court did not really do an analysis of the interplay of Rule 2.516(a) and (b)(1) and thus, it was inapplicable. The Second also noted its disagreement with the Third’s Wheaton v. Wheaton for the same reasons. The court recognized the practicalities of the bright-line Wheaton court ruling but said that a plain reading of Rule 2.516, 1.442 and § 768.79, did not yield that result. The court then certified conflict with the Third in Wheaton. A couple of months later in June 2017, the Second District expanded its own ruling in Boatright to Section 57.105 motions in Isla Blue Development v. Moore.
In June 2017, three different judges in the Fourth reaffirmed the ruling of Matte in Estimable v. Prophete; a Section 57.105 case with defective service. The Fourth, to justify its decision, mentioned again the Matte rationale that “litigants should not be left to guessing at what a court will deem “substantial compliance” with rules and statutes for the imposition of fees.”
Three months later, in October 2017, the Fourth in McCoy v. R.J. Reynolds made a complete one-eighty and expressed its disdain for strict compliance. “To deny recovery because the initial offer was not emailed is to allow the procedural tail of the law to wag the substantive dog.” The court expressed its sympathy for the Second’s logic in Boatright and did not even mention its very own Matte and Estimable decisions which, though Section 57.105 cases, were undoubtedly relevant.
In December 2017 the First District reversed itself and said in Oldcastle v. Railworks that PPS and OJ do not have to be served in accordance with Rule 2.516. It was undisputed in Oldcastle that the PPS’s service was defective. The First agreed 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.”
Recently in July 2018 the Fifth District had to address the issue in the context of a defective Section 57.105 motion in Goersch v. Satellite Beach. The Fifth analyzed Rule 2.516 and read it radically different than the Second. The Fifth thought that since Section 57.105 motions have to be “filed” eventually, the ‘“timing of the “filing” is of no consequence to the requirement of service under the rule.” “The rule says “filed,” not “immediately filed or contemporaneously filed” said the court. Since the Section 57.105 motion at issue was ultimately filed, the Second thought it should be subject to the strict requirements of Rule 2.516. The Second backed its logic by pointing to 2.516(d) which requires that all documents “must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules.” The main rationale of the Fifth in Goersch was—just like the First, and Fourth—predictability.
In the end, this all ended in the Florida Supreme. Stay tuned, but for now, make sure you strictly comply with Rule 2.516 for anything you do; whether you have to serve it or file it. Thus far, nobody has argued that strict compliance is a bad thing.
Eduardo Ayala Maura is an attorney with Ayala Law in Miami.