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The Florida Supreme Court recently clarified the lingering confusion surrounding the proper method for service of proposals for settlement. The court finally put to rest the argument that the Rules of Judicial Administration require proposals for settlement to be served by email in accordance with rule 2.516. The court also did lawyers in the state a great favor by rejecting an argument that placed undue importance on the formatting protocol of such emails, said Dean Mead trial attorney Michael J. Furbush. Invalidating good-faith attempts at service because of formatting minutiae led to unjust results for litigants and exposed their attorneys to potential malpractice claims, he said.
Rule 2.516 lays down the requirements for serving pleadings and documents and was updated in late 2012 to recognize service by email. Unfortunately, said Furbush, who is board certified in business litigation law by The Florida Bar Board of Legal Specialization, the rule focused more on form than substance, and now the court has restored some semblance of balance.
Two issues: Is email service required, and in what form?
Two email issues were before the court in Wheaton v. Wheaton, decided January 4, 2019. “The first issue was, if you serve a proposal for settlement, do you have to comply with the email service requirements of rule 2.516 of the Florida Rules of Judicial Administration?” said Furbush.
“The second and perhaps more significant issue in terms of its impact,” Furbush explained, was, “Does email service have to adhere rigidly to the formatting and content requirements of rule 2.516 to be valid?”
Request for fees spurred challenge
Wheaton centered on a dispute over alleged unlawful occupation of a home. Attorneys for the defendant, who was alleged to be unlawfully occupying a house owned by the plaintiff, sent a proposal for settlement through email in which they offered $1. The plaintiff did not respond to the offer, although there was no claim that it wasn’t received. The trial court granted summary judgment to the defendant, and her attorneys then moved to collect attorney fees based on the proposal for settlement.
The plaintiff responded that she had never received a valid settlement proposal because, among other things, the email to which the proposal was attached didn’t follow the formatting requirements of rule 2.516. For example, the subject line of the email read “Please find attached our Notice of Serving [sic] & our Proposal.”
The trial court agreed that the email didn’t comply with rule 2.516, which says that the subject line of email service must contain the words “SERVICE OF COURT DOCUMENT” in all caps, followed by the case number. As the trial court saw it, the defendant’s failure to include the correct verbiage in the subject line rendered the proposal unenforceable and thus required rejection of the request for attorney fees. (The court didn’t get into the additional argument that the $1 offer constituted bad faith.)
Confronted with two opposing lines of decisions from other appellate districts on interpretation of the email provisions of rule 2.516, the Third District Court of Appeal chose to affirm the trial court’s rulings that email service was required, and that the defendant’s failure to comply with the email formatting requirements invalidated the proposal. The Third District relied on several appellate decisions to support its argument, primarily Matte v. Caplan, in which the Fourth District Court of Appeal held that a motion for sanctions under Fla. Stat. § 57.105 must be served by email in strict compliance with rule 2.516.
A seemingly stronger line of cases was more persuasive to the Supreme Court. In McCoy v. R.J. Reynolds (Fourth District), Boatright v. Philip Morris (Second District) and Oldcastle Southern Group v. Railworks Track Systems (First District), the appeals courts held that because a proposal for settlement is not a document that is filed with court, at least initially, it does not have to comply with rule 2.516’s requirements for email service.
The conflict between the cases centered largely on the interplay between subsections (a) and (b) of rule 2.516. Subsection (a) of the rule insists 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). This rule would seem to limit the rule’s application to documents that are filed with the court.
However, subsection (b)(1) of rule 2.516 reads: “All documents required or permitted to be served on another party must be served by e-mail, unless the parties otherwise stipulate or this rule otherwise provides” (emphasis added). The Third District viewed this language as requiring email service of any document for which service is permitted, even if contemporaneous filing of the document is prohibited.
The Florida Supreme Court saw it differently. It found that subsection (b)’s email service requirement is expressly limited to the categories of documents described in subsection (a) – every pleading subsequent to the initial pleading and documents that are filed in court. Because a proposal for settlement doesn’t fall into either category, the Supreme Court concluded that it’s not subject to the requirements of the rule.
Procedural tail should not be allowed to wag the substantive dog
The other issue in Wheaton was whether failure to comply with the email formatting requirements of rule 2.516 would make the proposal for settlement unenforceable. “Failure to comply with the email formatting requirements set forth in rule 2.516 would not render the proposal unenforceable,” the court ruled, adding that the proposal was valid because it complied with substantive requirements of the statute.
On this the Supreme Court sided squarely with common sense, saying that “a procedural rule should not be strictly construed to defeat a statute it is designed to implement.” As Furbush explained the ruling from a practitioner’s viewpoint, “The court said that if you actually received service of an otherwise valid proposal, you can’t act like you didn’t receive it just because the subject line was formatted incorrectly. To find otherwise would elevate form over substance and lead to unfair results.”
As for whether service of proposals for settlements and other documents not normally filed with the court must be emailed, the court seemed to remove any doubt about future interpretations of this rule: service by email is not required.
Still … better to follow the letter of the rule
Despite the court’s ruling that the formatting requirements don’t have to be followed to the letter, Furbush recommends that attorneys who have to serve documents by email exercise caution and adhere strictly to rule 2.516. While the Supreme Court allowed some leniency in the formatting of email service, it is still possible that the extent of this leniency could be tested in future cases.
With the prevalence of electronic service, it is reasonable to have standards for service by email, said Furbush, who suggested the best path forward is for the Supreme Court or the Bar to create an approved template for use with the rule. “I expect to see a revision of rule 2.516 at some point in the future, and in the meantime,” said Furbush, “this decision should not be regarded as an excuse to be lax with the service of proposals for settlement.”