Florida’s Fourth District Court of Appeal ruled last week that a notice of intent to seek sanctions does not have to comply with the formatting requirements for email service of court documents, walking back its own prior rulings that strict compliance was required.
Law Offices of Fred C. Cohen, P.A. v. H.E.C. Cleaning LLC was a malpractice suit that arose out of a North Palm Beach law firm’s prior representation of a dry-cleaning company in a landlord-tenant dispute. After the malpractice suit was dismissed, the law firm sought sanctions against its former client and the former client’s new attorney under Florida Statute § 57.105, claiming that they knew or should have known that the facts did not support the claim for malpractice.
The trial court struck the law firm’s motion for sanctions because its safe harbor notice did not comply with the email formatting requirements in rule 2.516 of the Florida Rules of Judicial Administration. In particular, the subject line of the email did not contain the words “SERVICE OF COURT DOCUMENT” followed by the case number, and the body of the email did not contain the case number, the names of the parties, the title of each document served, or the sender’s name and phone number.
In striking the motion for sanctions, the trial court relied exclusively on the Fourth District’s opinions in Matte v. Caplan and Estimable v. Prophete, which both held that a 57.105 safe harbor notice must strictly comply with rule 2.516’s email service requirements.
But the Fourth District ruled that “Matte and Estimable are no longer good law,” citing to the Supreme Court’s 2019 decision in Wheaton v. Wheaton, which held that service of a proposal for settlement did not have to comply with email service requirements. The Fourth District said that while Wheaton and Matte addressed different issues, “we cannot ignore that Wheaton expressly disapproved Matte, because pre-filing service of section 57.105 safe harbor notices are similar to pre-filing service of section 769.70 proposals for settlement.”
The Fourth District reversed the order striking the law firm’s motion for sanctions, and remanded the case to the trial court to determine the amount of attorneys’ fees the law firm is entitled to recover from its former client.
The Fourth District’s decision eliminates any lingering doubt among Florida’s appellate courts about the service requirements for a safe harbor notice under section 57.105. Because a safe harbor notice is a document that must be served but not filed with the court, service by email under rule 2.516 is not required.
At the same time, as recommended since last year’s post about the Wheaton case, the better practice for attorneys would be to comply with the formatting requirements of rule 2.516 when serving any court document by email. With the increased dependence on electronic methods of service, being consistent is a good way to avoid mistakes and ensure that the rules are followed when it counts. Just because the courts make exceptions to the rules doesn’t necessarily mean the attorneys who practice in those courts should do the same.