SAFEPOINT INSURANCE COMPANY v. ELENA GINSBURG and MICHAEL GINSBURG

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
SAFEPOINT INSURANCE COMPANY,
Appellant,
v.
ELENA GINSBURG and MICHAEL GINSBURG,
Appellees.
No. 4D18-2158
[January 20, 2021]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward
County; Martin J. Bidwill, Judge; L.T. Case No. CACE 17-12167 (05).
Carol M. Rooney of Butler Weihmuller Katz Craig LLP, Tampa, for appellant.
Silvia Maria Gonzalez of S. Gonzalez Law, Trial & Appellate Practice, Miami
Lakes, for appellees.
ON CONFESSION OF ERROR
PER CURIAM.
SafePoint Insurance Company, the defendant below, appeals an order striking
one of its section 57.105, Florida Statutes, motions based on the trial court’s
finding that service of the motion did not strictly comply with the e-mail service
requirements of Florida Rule of Judicial Administration 2.516. On appeal,
SafePoint’s primary argument is that under the reasoning of the Florida Supreme
Court’s decision in Wheaton v. Wheaton, 261 So. 3d 1236 (Fla. 2019), rule 2.516
does not apply to a motion for sanctions under section 57.105. The plaintiffs,
Elena and Michael Ginsburg, have filed a confession of error on this point.
We accept the confession of error and reverse.
In Matte v. Caplan, 140 So. 3d 686, 690 (Fla. 4th DCA 2014), this Court held
that “strict compliance with Florida Rule of Judicial Administration 2.516
regarding e-mail service of pleadings is required before a court may assess
attorney’s fees pursuant to section 57.105, Florida Statutes.”
Recently, however, the Florida Supreme Court held that the e-mail service
provisions of rule 2.516 do not apply to a proposal for settlement. Wheaton, 261
So. 3d at 1243. The supreme court reasoned that the service requirements of
the rule apply only “if the document is a pleading subsequent to the initial
pleading or a document filed in any court proceeding,” and that a proposal for
settlement is not subject to the service requirements of the rule because
“a proposal for settlement is a document that must be served on the party to
whom it is made but must not be filed with the court.” Id. Although recognizing
that Matte did not address the issue of rule 2.516 as it relates to proposals for
settlement, the supreme court nonetheless rejected the reasoning of Matte:
Likewise, in Matte, the court addressed a motion for sanctions sought
pursuant to section 57.105, Florida Statutes (2013). In that case,
the court overlooked the limitation contained in rule 2.516(a) and
began its analysis by construing subdivision (b). In doing so, the
court found that preliminary service of a motion for sanctions under
section 57.105 must be accomplished by email. However, motions
for sanctions are similar to proposals for settlement in that they are
forbidden from being initially filed. This, as noted by the Second
District Court of Appeal, “constitutes a fatal flaw in that court’s
reasoning.”
Id. at 1243–44 (internal citations omitted). Based on Wheaton’s reasoning,
in Law Offices of Fred C. Cohen, P.A. v. H.E.C. Cleaning, LLC, 290 So. 3d 76, 77
(Fla. 4th DCA 2020), we receded from Matte and instead held “that rule 2.516’s
e-mail service requirements do not apply to service of a section 57.105 safe
harbor notice.”
Accordingly, pursuant to Wheaton and Law Offices of Fred C. Cohen, P.A.,
we reverse the order on review and remand for further proceedings.
WARNER, GROSS and DAMOORGIAN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.