Boatright v. Philip Morris USA, Inc.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RICHARD BOATRIGHT and )
DEBORAH BOATRIGHT, his wife, )
)
Appellants, )
)
v. ) Case No. 2D15-1781
)
PHILIP MORRIS USA INC., and )
LIGGETT GROUP, LLC, )
)
Appellees. )
)
Opinion filed April 12, 2017.
Appeal from the Circuit Court for Polk
County; John M. Radabaugh, Judge.
Philip J. Padovano, Celene H. Humphries,
and Maegen P. Luka of Brannock &
Humphries, Tampa, and Jonathan R.
Gdanski, Steven Hammer, and Brittany
Chambers of Schlesinger Law Offices, P.A.,
Fort Lauderdale, for Appellants.
M. Sean Laane and Geoffrey J. Michael of
Arnold & Porter LLP, Washington, D.C.; and
William P. Geraghty and Rachel A. Canfield
of Shook, Hardy & Bacon, L.L.P., Miami, for
Appellee Philip Morris USA Inc.
Wayne L. Thomas of Akerman Senterfitt,
Tampa; and Kelly Anne Luther, Maria Ruiz,
Giselle Gonzalez Manseur, and Ann M. St.
Peter-Griffith of Kasowitz, Benson, Torres &
Friedman, LLP, Miami; and Karen H. Curtis
of Clarke Silverglate, P.A., Miami, for
Appellee Liggett Group, LLC.
BADALAMENTI, Judge.
Appellants Richard and Deborah Boatright are former Engle1 plaintiffs who
obtained a $32.75 million jury verdict against Appellees Philip Morris USA Inc. and
Liggett Group, LLC (the tobacco companies). The trial court partially denied the
Boatrights' posttrial motion to tax attorneys' fees and costs, holding that proposals for
settlement served by the Boatrights upon the tobacco companies' attorneys could not
serve as a basis to award fees and costs because they were not served by e-mail. The
trial court reasoned that the method of service by which the Boatrights served their
proposals for settlement—U.S. Certified Mail—did not strictly comply with the service
requirements for proposals for settlement. We disagree and reverse.
PROCEDURAL AND FACTUAL BACKGROUND
The facts here are both undisputed and straightforward. Prior to trial, the
Boatrights served four proposals for settlement on the tobacco companies—one from
each plaintiff to each defendant for $200,000, totaling $800,000. Attached to each of
the four proposals was a corresponding certificate of service signed by the Boatrights'
attorney. The certificates of service attached to the proposals were set forth in the
following format: "I hereby certify that on the 31st of July, 2014, the foregoing document
was served on [the tobacco companies' respective attorneys] at [the corresponding law
firm's mailing address] . . . for PHILLIP MORRIS U.S.A., INC. [or LIGGETT GROUP,
1
Engle v. Liggett Grp., Inc., 945 So. 2d 1246 (Fla. 2006).
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LLC] via U.S. Certified Mail." (Bolded text in originals). The tobacco companies
received and did not accept the proposals.
Upon receiving the jury's verdict, the Boatrights filed a motion to tax
attorneys' fees and costs based in part on the tobacco companies' failure to accept the
Boatrights' proposals for settlement.2 See § 768.79(6)(b), Fla. Stat. (2013); Fla. R. Civ.
P. 1.442(h). After a hearing on the motion, the trial court held that the Boatrights were
not entitled to attorneys' fees and costs because they did not serve their proposals for
settlement on the tobacco companies' attorneys by e-mail, and therefore did not strictly
comply with section 768.79 and rule 1.442.
DISCUSSION
The question before us is whether section 768.79 and rule 1.442 mandate
e-mail as the exclusive method for service of pretrial proposals for settlement upon a
party. Because section 768.79 and rule 1.442 depart from common law, they demand
strict compliance and strict construction. See Diamond Aircraft Indus., Inc. v.
Horowitch, 107 So. 3d 362, 377 (Fla. 2013); Campbell v. Goldman, 959 So. 2d 223, 226
(Fla. 2007) (citing Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So. 2d 276, 278
(Fla. 2003)). Failure to strictly comply with section 768.79 and rule 1.442 will render a
proposal for settlement invalid, and therefore incapable of supporting an award of
attorneys' fees and costs. Campbell, 959 So. 2d at 226.
We must discern a drafter's intent by analyzing the text's plain and
ordinary meaning. Gallagher v. Manatee County, 927 So. 2d 914, 919 (Fla. 2d DCA
2
The Boatrights also moved to recover costs pursuant to section 57.041,
Florida Statutes (2013), which was granted by the trial court. That basis for the award
of costs is not being challenged in this appeal.
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2006) (quoting State v. Burris, 875 So. 2d 408, 410 (Fla. 2004)).3 Where, as here,
"there are several rules pertaining to the same subject they are to be construed together
and in relation to each other." In re Cleary's Estate, 135 So. 2d 428, 430 (Fla. 2d DCA
1961).
A. The Text and Interplay of Section 768.79, Rule 1.442, and Rule 1.080
Section 768.79 does not provide for any particular method of service of a
proposal for settlement. It merely states that a proposal for settlement "shall be served"
upon the party to whom the proposal is made, but it shall not be filed with the court
unless it is accepted, or filing is necessary to enforce the provisions of the statute. §
768.79(3). Similarly, rule 1.442(d) states that "[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." Thus, although both section 768.79 and rule 1.442 do not set
any specific method of service for proposals for settlement, they are both absolutely
clear that proposals for settlement are not to be filed, unless: (1) they are part of a
motion for incorporation into a final judgment; or (2) they are part of a motion to enforce
the provisions of section 768.79 or rule 1.442, such as a motion for attorneys' fees and
costs.
There is no dispute that the Boatrights did not file their proposals with the
trial court until they sought to enforce the attorneys' fees and costs provisions of section
768.79(6)(b) and rule 1.442(h). There is also no dispute that the Boatrights attached
3
"The same principles of construction apply to court rules as apply to
statutes." Mitchell v. State, 911 So. 2d 1211, 1214 (Fla. 2005) (quoting Gervais v. City
of Melbourne, 890 So. 2d 412, 414 (Fla. 5th DCA 2004)).
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their proposals to their motion to tax attorneys' fees and costs. Therefore, the
Boatrights strictly complied with section 768.79 and rule 1.442.
That said, the tobacco companies contend that rule 1.442 provides
additional guidance as to the method of service of proposals for settlement upon an
opposing party. In particular, they point to rule 1.442(c)(2)(G), which states that "[a]
proposal [for settlement] shall . . . include a certificate of service in the form required by
[Florida Rule of Civil Procedure] 1.080." There is no dispute that the Boatrights'
proposals for settlement each contained a certificate of service. The conundrum is that
rule 1.442(c)(2)(G) refers to rule 1.080, which does not specify "the form" of the
certificate. In fact, rule 1.080 states nothing about a certificate of service. The only
reference to service is within rule 1.080(a), which states that "[e]very pleading
subsequent to the initial pleading, all orders, and every other document filed in the
action must be served in conformity with the requirements of Florida Rule of Judicial
Administration 2.516." (Emphasis added.) The plain language of rule 1.080(a) yields
the conclusion that, unless a document is filed in the action, its service need not be in
conformity with rule 2.516's requirements.
The legislature and the drafters of the Florida Rules of Civil Procedure, as
adopted by our supreme court, have expressly stated that proposals for settlement
"shall not" be filed in an action until such time the proposal is accepted or a party seeks
enforcement of a proposal. § 768.79(3); Fla. R. Civ. P. 1.442(d). Simply stated,
proposals for settlement are not subject to the service requirements of rule 2.516
because the proposals do not meet rule 1.080(a)'s threshold requirement that they be
"filed in the action." Because the scope of rule 1.080(a) is confined to documents filed
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in an action, the Boatrights have strictly complied with the applicable statute and rules
we have examined up to this point.
However, the tobacco companies insist that the heart of their argument is
found within the language of rule 2.516. Accordingly, we now turn our attention to the
text of that rule.
B. Rule 2.516(f)'s Certificate of Service Form
Rule 2.516(f) is the only rule we have identified setting forth the form of a
certificate of service to which rule 1.442(c)(2)(G) refers.4 Pursuant to the form in rule
2.516(f), an attorney must certify in substance "that the foregoing document has been
furnished to (here insert name or names, addresses used for service, and mailing
addresses) by (e-mail) (delivery) (mail) (fax) on . . . (date) . . .". Thus, within section
2.516(f)'s certificate of service requirements, e-mail, hand delivery, mail, and fax are
permissible methods of service. Attachment of the certificate in rule 2.516(f) is "taken
as prima facie proof of . . . service in compliance" with rule 2.516.5
For purposes of comparison, the Boatrights' certificates of service state, "I
hereby certify that on the 31st of July, 2014, the foregoing document was served on . . .
4
In 2012, the certificate of service in the now-defunct rule 1.080(f) was
moved to rule 2.516(f). See In re Amendments to Fla. R. Jud. Admin., Fla. R. Civ. P.,
Fla. R. Crim. P., Fla. Prob. R., Fla. R. Traff. Ct., Fla. Sm. Cl. R., Fla. R. Juv. P., Fla. R.
App. P., Fla. Fam. L. R. P.—E-Mail Serv. Rule, 102 So. 3d 505, 509-10 (Fla. 2012). We
invite the drafters of the Florida Rules of Civil Procedure to clarify rule 1.442(c)(2)(G), to
the extent that the certificate of the service is now contained within rule 2.516(f).
5
It would be strange if the certificate of service form set forth in rule
2.516(f) listed an impermissible method of service. After all, a certificate of service in
compliance with rule 2.516(f) evidences prima facie proof of service. Therefore, we
suggest that litigants who wish to serve pretrial proposals for settlement look to the
methods of service listed in 2.516(f) for guidance.
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counsel for PHILLIP MORRIS U.S.A., INC. [or LIGGETT GROUP, LLC], via U.S.
Certified Mail." Here, the certificates of service attached to the Boatrights' proposals
both track the form in rule 2.516(f) and specify mail as the method of service. The
Boatrights' certificates of service thus comply with the form of the certificate of service
set forth in rule 2.516(f) and thus are evidence of prima facie service in compliance with
rule 2.516. Therefore, to the extent that rule 1.442(c)(2)(G) incorporates the certificate
of service form in rule 2.516(f), the Boatrights have again strictly complied with the
applicable statute and rules.
However, the tobacco companies are not content with certificates of
service which comply with rule 2.516(f). Instead, the tobacco companies argue that the
mandatory e-mail service requirement located elsewhere in rule 2.516 applies to the
service of pretrial proposals for settlement on an opposing party.6 We now turn our
attention to the e-mail service requirement.
C. Applicability of Rule 2.516(b)(1)'s Mandatory E-Mail Service Requirement
Rule 2.516 begins with two subsections entitled "(a) Service; When
Required" and "(b) Service; How Made." In pertinent part, rule 2.516(a) states 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."
(Emphasis added.) Rule 2.516(b)(1) states that "[a]ll documents required or permitted
to be served on another party must be served by e-mail, unless the parties otherwise
6
The manner in which the tobacco companies arrive at this conclusion is
not immediately obvious, but they believe that the language referencing a certificate of
service in rule 1.442(d) also incorporates the entirety of rule 2.516 into section 768.79
and rule 1.442. Even if rule 1.442(d) refers to something other than a certificate of
service, we disagree with the tobacco companies, as explained below.
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stipulate or this rule otherwise provides." (Emphasis added.) The thrust of rule
2.516(b)(1) is to mandate that e-mail be the exclusive service method for a certain
category of documents.
The tobacco companies construe the phrase "all documents" in rule
2.516(b)(1) to encompass any document which may be served upon an opposing party,
including proposals for settlement. Based upon our reading of the plain and ordinary
language set forth in section 768.79(3), rule 1.442(d), and rule 2.516, we disagree with
the tobacco companies' construction.
Legal text "should be interpreted to give effect to every clause in it, and to
accord meaning and harmony to all of its parts." Jones v. ETS of New Orleans, Inc.,
793 So. 2d 912, 914-15 (Fla. 2001) (quoting Acosta v. Richter, 671 So. 2d 149, 153-54
(Fla. 1996)). If a statutory provision appears to have a clear meaning in isolation, "but
when given that meaning is inconsistent with other parts of the same statute or others in
pari materia, the [c]ourt will examine the entire act and those in pari materia in order to
ascertain the overall legislative intent." Fla. State Racing Comm'n v. McLaughlin, 102
So. 2d 574, 575-76 (Fla. 1958). Whenever possible, we must avoid construing legal
text as "mere surplusage." Hechtman v. Nations Title Ins. of N.Y., 840 So. 2d 993, 996
(Fla. 2003) (citing Hawkins v. Ford Motor Co., 748 So. 2d 993 (Fla. 1999)).
The tobacco companies' expansive reading of rule 2.516(b)(1) would
render subsection (a) meaningless and only prevails if we were to impermissibly read
rule 2.516(b)(1) in isolation. By its title, rule 2.516(a) sets forth when the service
requirements of rule 2.516 apply. Rule 2.516(a) confines the scope of rule 2.516 to
"every pleading subsequent to the initial pleading and every other document filed in any
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court proceeding." (Emphasis added.) Rule 2.516(b)(1) then sets forth the method by
which those documents must be served, which is principally by e-mail, albeit with some
exceptions inapplicable to this case. Reading rule 2.516(a) and (b)(1) together, the
word "documents" in subsection (b)(1) is confined in meaning to "document[s] filed in
any court proceeding," consistent with the text of subsection (a). See Hechtman, 840
So. 2d at 996; Jones, 793 So. 2d at 914-15. It makes no sense for rule 2.516(b)(1)'s e-
mail service requirements to apply to a broader scope of documents than specified by
2.516(a), which is the portion of rule 2.516 defining its scope.
Even more, because rule 2.516(a) expressly confines its scope to the
service of documents "filed in any court proceeding," we are compelled to read the rule
as excluding documents which are not "filed in any court proceeding." See Moonlit
Waters Apartments, Inc. v. Cauley, 666 So. 2d 898, 900 (Fla. 1996) ("Under the
principle of statutory construction, expressio unius est exclusio alterius, the mention of
one thing implies the exclusion of another." (citing Bergh v. Stephens, 175 So. 2d 787
(Fla. 1st DCA 1965))); see also United States v. Koonce, 991 F.2d 693, 698 (11th Cir.
1993) ("The canon of statutory construction that the inclusion of one implies the
exclusion of others is well-established.").
We will not accept the tobacco company's invitation to read rule
2.516(b)(1)'s e-mail service in isolation so as to mandate e-mail service for all
documents, even those that have been mandated by the legislature to not be filed, such
as proposals for settlement. The prescriptions of rule 2.516(b)(1) "should no more be
allowed to trump [section 768.79] than the tail should be allowed to wag the dog."
Kuhajda v. Borden Dairy Co. of Ala., LLC., 202 So. 3d 391, 395-96 (Fla. 2016).
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Our review of the entire text of rule 2.516(b)(1) also supports our
conclusion that mandatory e-mail service is only required for documents that are filed in
an action. Rule 2.516(b)(1) only requires e-mail service "unless the parties otherwise
stipulate or this rule otherwise provides." (Emphasis added.) The emphasized phrase
"unless . . . this rule otherwise provides" encompasses the language in subsection (a),
which confines the word "documents" to only those documents filed in the action.
Accordingly, the text and context of rule 2.516(b)(1) also support our construction.
Finally, rule 2.516(d) states that "[a]ll documents must be filed with the
court either before service or immediately thereafter, unless otherwise provided for by
general law or other rules." (Emphasis added.) Again, because section 768.79(3) and
rule 1.442(d) expressly state that proposals for settlement shall not be filed, we construe
section 768.79(3) and rule 1.442(d) as exceptions "provided for by general law and
other rules." If proposals for settlement are excluded from the mandatory filing
requirement in rule 2.516(d), they are also excluded from the e-mail service requirement
which is mandatory only if the documents were required to be filed in the first instance.
Thus, the context of rule 2.516(d) supports our conclusion as well.
In sum, we hold that the mandatory e-mail service requirement set forth in
rule 2.516(b)(1) does not apply to service of pretrial proposals for settlement. In the
context of proposals for settlement, the mandatory e-mail service requirement in rule
2.516(b)(1) is only triggered when the proposals are attached to motions for acceptance
or enforcement under section 768.79(3) or rule 1.442(d) that are filed in court. The
Boatrights attached their proposals for settlement to their motion to tax attorneys' fees
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and costs, filed with their motion with the trial court, and had previously served their
proposals for settlement upon the tobacco companies' counsel by U.S. Certified Mail.
D. Matte v. Caplan, Wheaton v. Wheaton, and Douglas v. Zachry Industrial, Inc.
The tobacco companies cite to opinions they believe support a broad
construction of rule 2.516(b)(1) and contradict our interpretation of the rule. None of
these cases address the discrete issue before us—namely, whether the e-mail service
requirement in rule 2.516(b)(1) applies to proposals for settlement. Instead, these
cases either decide ancillary issues which do not address the interplay between rule
2.516(a) and 2.516(b)(1), or simply do not relate to proposals for settlement at all. See
Matte v. Caplan, 140 So. 3d 686, 689-90 (Fla. 4th DCA 2014) (holding that a motion for
sanctions was invalid because it did not comply with the e-mail formatting requirements
in rule 2.516(b)(1)(E)); see also Floyd v. Smith, 160 So. 3d 567, 569 (Fla. 1st DCA
2015) (implying that rule 2.516 governs proposals for settlement, but ultimately holding
that the absence of a certificate of service did not render a proposal for settlement
invalid where it was served by e-mail); Courtney v. Catalina, Ltd., 130 So. 3d 739, 740
(Fla. 3d DCA 2014) (holding that a trial court erred in dismissing a case for lack of
prosecution where there was no evidence that plaintiff received a computer-generated
notice of inactivity); Milton v. Reyes, 22 So. 3d 624, 624 (Fla. 3d DCA 2009) (holding
that a proposal for settlement could not support a fee award because it failed to include
any certificate of service whatsoever, as required by the former version of rule 1.080).
The most analogous of these cases is Matte, where a defendant served a
motion for sanctions on plaintiff pursuant to section 57.105, Florida Statutes (2013),
shortly after being served with plaintiff's complaint. 140 So. 3d at 687-88. The motion
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for sanctions was served on plaintiff by e-mail, but not filed due to the twenty-one-day
grace period in section 57.105(4). The e-mail failed to comply with a number of
formatting requirements in rule 2.516(b)(1)(E). Specifically, the e-mail failed to: (1)
include a PDF copy of the motion or a link to the motion on a website maintained by the
clerk; (2) include the words "SERVICE OF DOCUMENT" in the e-mail's subject line; and
(3) include the case number, the name of each initial party, the title of each document
served, and the sender's name and telephone number in the body of the e-mail. Id.
Eventually, defendant filed a timely motion for sanctions with the trial court. Id. at 688.
Plaintiff argued that the motion was never properly served because defendant's e-mail
to plaintiff failed to comply with rule 2.516(b)(1)(E). Id. The trial court denied the
motion. Id. On appeal, the Fourth District affirmed the judgment of the trial court. Id. at
690. The Fourth District began its analysis of rule 2.516 by interpreting subsection
(b)(1). Then, without analyzing rule 2.516(a), the Fourth District moved directly to the
requirements in 2.516(b)(1)(E). Because the defendant did not comply with the
requirements, the Fourth District upheld the ruling of the trial court.
We decline to apply Matte to the case before us. The Matte decision does
not concern proposals for settlement. As such, it does not directly address the question
we are called upon to decide here. Moreover, the Matte court did not analyze whether
the scope of documents to be filed by e-mail in rule 2.516(b)(1) was limited by rule
2.516(a)'s confining that scope to documents filed in an action. In fact, the Matte
opinion does not contain any analysis of rule 2.516(a)—it simply presumes that
preliminary service of a motion for sanctions under section 57.105(4) must be
accomplished by e-mail. As we have already explained, rule 2.516 contains no such
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requirement for documents which are not required to be filed with the court at the time
at which that document is served. Similar to proposals for settlement, motions for
sanctions under section 57.105 are not filed in court unless it is necessary to enforce
them. Compare § 57.105(4), with § 768.79(3), and Fla. R. Civ. P. 1.442(d). The Matte
court's failure to recognize the proper scope of documents subject to e-mail service
requirement constitutes a fatal flaw in that court's reasoning. Accordingly, we will not
extend that reasoning to the milieu of service of pretrial proposals for settlement.
We are instead persuaded by the analysis in Douglas v. Zachry Industrial,
Inc., No. 6:13-cv-1943-Orl-40GJK, 2015 WL 6750803, at *2-3 (M.D. Fla. Nov. 05, 2015).
The Douglas plaintiff served a proposal for settlement upon defendant by e-mail, and
the text of the proposal specifically provided that the proposal would not be filed with the
court unless filing was necessary to enforce the proposal. Id. at *1. Ultimately, the
proposal was rejected and plaintiff moved for attorneys' fees and costs on the basis of
the proposal. Id. As in Matte, the defendant argued that the proposal was invalid
because it failed to comply with the formatting requirements of rule 2.516(b)(1)(E)—it
did not contain the words "SERVICE OF COURT DOCUMENT" in uppercase letters
within the e-mail's subject line. Douglas, 2015 WL 6750803, at *1. Rather, the subject
line contained all of these words in lowercase letters. Id.
The Douglas court held that the e-mail service requirement in rule 2.516
did not apply to proposals for settlement. Id. at *2-3. Specifically, the Douglas court
held, as we do here, that rule 2.516(a) restricted the scope of the word "documents" in
rule 2.516(b)(1) to only those documents filed in court. Id. at *2-3. Because rule
1.442(d) states that a proposal for settlement "shall not" be filed, the Douglas court
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determined that the e-mail service requirement did not apply to proposals for settlement.
Id. at *2. And because the e-mail service requirement did not apply, the e-mail
formatting requirements in rule 2.516(b)(1)(E) also did not apply. Id. at *2-3. In
addition, the Douglas court expressed disagreement with the holding of Matte.
Douglas, 2015 WL 6750803, at *3. We find the Douglas court's reading of rule 2.516(a)
both persuasive and correct.
After briefing and oral argument in this case, the Third District held that
proposals for settlement must comply with rule 2.516(b)(1)'s mandatory e-mail service
requirement. Wheaton v. Wheaton, 42 Fla. L. Weekly D411, D412 (Fla. 3d DCA Feb.
15, 2017). There, the appellant served a proposal for settlement by e-mail. Id. at D411.
It was undisputed that this e-mailed proposal neglected to comply with "certain
requirements for service by e-mail" set forth in rule 2.516(b)(1)(E)(i)-(v). Id. As such,
the trial court ruled that the proposal for settlement could not support an award of
attorneys' fees, and the Third District affirmed. Id. at D412.
The Wheaton court focused on rule 2.516(b)(1)'s language specifying that
the e-mail service requirement applies to documents that are either "required or
permitted to be served upon another." Id. (citing Fla. R. Jud. Admin 2.516(b)(1))
(emphasis added). The Wheaton court acknowledged that proposals for settlement are
not required to be contemporaneously filed upon service, and therefore are not covered
by rule 2.516(a). Id. However, the Wheaton court reasoned that the e-mail service
requirement extends to proposals for settlement anyway, because proposals for
settlement qualify as documents "permitted to be served" under rule 2.516(b)(1). Id.
The Wheaton court then adopted the reasoning in Matte and Floyd and essentially
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created a bright line rule that e-mail is the exclusive method for service upon a party for
any document whatsoever. Id. We respectfully disagree with the Wheaton court.
As explained, rule 2.516(b)(1)'s mandatory service requirement is confined
to every pleading subsequent to the initial pleading and documents that are filed in
court—it does not extend to literally every document which is due to be served. Our
decision to reject Wheaton's holding is grounded in our reading of the plain language of
section 768.79(3) and rule 1.442(d). In no uncertain terms, the legislature and supreme
court have emphatically directed that parties "shall" serve proposals for settlement on
opposing parties—such service is not merely "permitted." § 768.79(3); Fla. R. Civ. P.
1.442(d). Moreover, the plain language of rule 2.516(a) does not imply that "every
pleading subsequent to the initial pleading and every other document filed in a court
proceeding" are the only types of documents which are "required" to be served—it
merely states that they are the only types of documents which must be served "in
accordance with [rule 2.516]." To hold that rule 2.516(b)(1)'s mandatory e-mail service
requirement applies to proposals for settlement, or any document not explicitly
contemplated by rule 2.516(a), we would have to rewrite rule 2.516(a) and turn a blind
eye to section 768.79(3) and rule 1.442(d).
In our final analysis, we respectfully diverge from the Wheaton court's
construction of the applicable statute and rules of court. In our view, the plain and
unambiguous language of rule 2.516(b)(1)'s mandatory e-mail service requirement is
confined to "document[s] filed in any court proceeding," in conjunction with the text of
subsection (a). See Hechtman, 840 So. 2d at 996; Jones, 793 So. 2d at 914-15. The
Wheaton court’s construction has great practicality in that it creates a bright-line e-mail
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service requirement for all documents due to be served upon a party, but this
construction is not buttressed by the text of rule 2.516 and is contrary to the plain
language of section 768.79(3) and rule 1.442(d).
CONCLUSION
The trial court erred in denying the Boatrights' motion for attorneys' fees
and costs for failing to strictly comply with section 768.79 and rule 1.442. The
mandatory e-mail service requirement in rule 2.516(b)(1) does not apply to pretrial
proposals for settlement. The Boatrights strictly complied with the statute and
corresponding procedural rules governing the service of proposals for settlement by: (1)
serving their proposals via U.S. Certified Mail; and (2) attaching to each of their
proposals a certificate of service. We reverse the order of the trial court and remand for
an award of attorneys' fees and costs in favor of the Boatrights. The amount of the
award is to be determined by the trial court. The court's award of costs to the Boatrights
pursuant to section 57.041 is affirmed. We certify conflict with the Third District's
decision in Wheaton.
Affirmed in part, reversed in part; remanded for award of attorneys' fees
and costs; conflict certified.
SILBERMAN and LaROSE, JJ., Concur.
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