Message
×
loading..

JOHN MCCOY v. R.J. REYNOLDS TOBACCO COMPANY ( 2017 )


Menu:
  •        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
    FOURTH DISTRICT
    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.
    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).
    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
    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.
    -2-
    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.
    *          *          *
    Not final until disposition of timely filed motion for rehearing.
    2 Section 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).
    -3-
    

Document Info

Docket Number: 4D16-1378

Judges: Gross

Filed Date: 10/25/2017

Precedential Status: Precedential

Modified Date: 10/19/2024