Florida’s Fourth DCA Contradicts Itself – Serving Documents Not Filed by Email

2 Cases, Interpreting Virtually the Same Language, 4 Months Apart, 2 Different Results (and with 1 Concurring Judge in Common)

Under Florida Law, there are two statutes (at least) that require document service on opposing parties without filing with the Clerk, a Safe-Harbour letter pursuant to Fla. Stat. 57.105(4), and a Proposal for Settlement pursuant to Fla. Stat. 768.79. Both statutes authorize the award of attorneys fees in derogation of common law, and the American Rule, and are generally subject to strict construction. See Montgomery v. Larmoyeux, 14 So.3d 1067, 1072 (Fla. 4th DCA 2009).

Fla. Stat. 57.105(4) states in pertinent part,

(4) A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

And Fla. Stat. 768.79 states in pertinent part,

(3) 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.

Within a four-month period in 2017 the Fourth DCA has issued opinions as to whether each of the statutes requires strict compliance with Fla. R. Jud. Admin. 2.516 and its Email Service Requirements, with seemingly opposite results.

CASE #1 – Estimable v. Prophete, 4D16-725, Opinion Dated June 7, 2017. – 

Strict Compliance with Fla. R. Jud. Admin. 2.516 E-Mail Service Required for Safe-Harbour Motion Pursuant to Fla. Stat. 57.105(4) Even Though Service of Motion During Safe-Harbour Is  Not to be Filed with the Court.


Florida Rule of Judicial Administration 2.516 lies at the center of this appeal. The mother appeals a sanctions order, and argues the trial court erred in sanctioning her pursuant to section 57.105, Florida Statutes (2015), and Rule 2.516. While the father complied with section 57.105, she argues he failed to comply with the strict requirements of Rule 2.516. We agree and reverse.

Here, the father’s motion for sanctions complied with the twenty-one-day “safe harbor” provision as the father’s notice was sent on July 21, 2015, and the sanctions motion was filed thirty-five days later on August 25, 2015. However, the father’s “safe harbor” letter failed to strictly comply with Florida Rule of Judicial Administration 2.516.

Rule 2.516(b)(1)(E) requires: (i) the attachment of a copy of the document in PDF format, and a link to the document on a website maintained by a clerk; (ii) the subject line begin with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number; and (iii) the body of the e-mail identify the court in which the case 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.” Fla. R. Jud. Admin. 2.516(b)(1)(E)(i)-(ii).

We have held that strict compliance with Rule 2.516 is mandatory. Matte v. Caplan, 140 So. 3d 686, 689-90 (Fla. 4th DCA 2014) (“Litigants should not be left guessing at what a court will deem is ‘substantial compliance’ with the rules and statutes for the imposition of attorney’s fees as a sanction.”).

Here, the father failed to comply with all requirements. His letter failed to contain “SERVICE OF COURT DOCUMENT,” followed by the case number in the subject line, and did not include in the body of the email the case number, name of the initial party, and title of the document served. He also failed to attach a PDF copy or link containing his motion for sanctions. His letter’s non-compliance requires us to reverse the sanctions order.


CIKLIN, C.J., and TAYLOR, J., concur.


CASE #2-John McCoy v. R.J. Reynolds Tobacco Company, 4D16-1378, Opinion Dated: October 25, 2017 

Strict Compliance with Fla. R. Jud. Admin. 2.516 E-Mail Service NOT Required for Proposal’s for Settlement Even Though Initial Service of Proposal Is Not to be Filed with the Court.

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).

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 m ail. The plaintiff also filed a Notice of Serving Proposal for Settlement via email 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 email 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. (201 4 ). 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.

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 email requirements of that rule.

We reverse the circuit court order insofar as it applies to the 2014 offer s of judgment.



Is Record Evidence of Actual Notice the Difference?

Certainly, Fla. R. J. Admin 2.516(a) equally applies to the Safe Harbour letter of 57.105, Fla. Stat. as it does to an offer of judgment/proposal for settlement pursuant to 768.79, Fla. Stat.

So does record evidence of Actual Notice account for the difference? Possibly.

A possible distinction here, is that the Court acknowledges that “The Plaintiff also filed a Notice of Serving Proposal for Settlement via e-mail on the same date.” And, “[t]he defendants had actual knowledge of the proposals for settlement and did not accept them.”

However, in Estimable the Court relies on Matte v. Caplan, 140 So. 3d 686, 689-90 (Fla. 4th DCA 2014) which eschews  the actual notice argument altogether, stating there that,

“Appellant nevertheless argues that service was sufficient under the safe harbor provision of section 57.105(4) because he “substantially complied” with the rule and this resulted in actual notice to appellee, based on testimony of appellee’s counsel that she read the document.

As section 57.105 authorizes an award of attorney’s fees in derogation of common law, it must be strictly construed. See Montgomery v. Larmoyeux, 14 So.3d 1067, 1072 (Fla. 4th DCA 2009). Thus, even where a letter contained all of the information required by section 57.105(4), including a demand for attorney’s fees if the offending complaint was not withdrawn, the Third District held that this actual notice through a letter did not comport with the statutory requirement that a motion be served twenty-one days prior to it being filed with the court, reversing a section 57.105 award. See Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So.3d 670, 672 (Fla. 3d DCA 2009).”

In sum,  I do not believe the Court has receded from the requirement that since attorneys fees statutes in derogation of common law they need be strictly construed, but rather the Court in McCoy took the time to analyze the plain language of Fla. R. Jud. Admin. 2.516, while the Court in Estimable did not. The result of McCoy should seemingly invalidate the Estimable decision, even if the Fourth DCA (and the one concurring judge in-common) failed to catch the similarities between these two cases.

But what I surmise really happened, was that since the Appellee in Estimable did not file a response brief, the Court never was directed to fully review Fla. R. Jud. Admin. 2.516 and its applicability to documents that need not be filed with the Court.



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