IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
KLAUS GOERSCH AND
BRIGITTE GOERSCH,
Appellants,
v. Case No. 5D17-386
CITY OF SATELLITE BEACH,
Appellee.
________________________________/
Opinion filed July 20, 2018
Appeal from the Circuit Court
for Brevard County,
John M. Harris, Judge.
Clifford R. Repperger, Jr., of Rossway Swan
Tierney Barry Lacey & Oliver,
P.L., Melbourne, for Appellants.
Clifford B. Shepard and Patrick Brackins, of
Shepard, Smith, Kohlmyer & Hand, P.A.,
Maitland, for Appellee.
TORPY, J.
We address an issue of first impression for this Court regarding whether a motion
for sanctions served pursuant to section 57.105(4), Florida Statutes (2015), must be
served in accordance with Florida Rule of Judicial Administration 2.516, even though the
motion may not be filed, if at all, until after the expiration of a safe harbor period. Several
of our sister courts have reached conflicting dispositions on this and an analogous issue
regarding proposals for settlement, which, similar to section 57.105 motions, are served
but not contemporaneously filed. We affirm and hold that a section 57.105 motion must
be served in strict compliance with rule 2.516.
Section 57.105 provides a statutory mechanism for recovery of attorney’s fees
when asserted claims or defenses fall below the statutory threshold. Procedurally, it
involves a two-step process. § 57.105(4), Fla. Stat. First, the movant must serve the
motion on the opposing party, but may not immediately file the motion. Id. Second, only
if the opposing party fails to withdraw or otherwise correct the challenged claim or defense
within twenty-one days may the movant file the motion with the court and pursue
sanctions by hearing. Id. The statute is silent on particular procedures for serving or filing
the motion. Accordingly, it is necessary to look to the Florida Rules of Civil Procedure for
direction.
Florida Rule of Civil Procedure 1.080 is the starting point for service of pleadings,
orders and “every other document filed in the action.” Fla. R. Civ. P. 1.080(a). It requires
service in conformity with rule 2.516. Similar to rule 1.080, rule 2.516 addresses service
of pleadings and “every other document filed in any court proceeding.” Fla. R. Jud.
Admin. 2.516(a). It mandates service by e-mail and compliance with certain technical
requirements, including service to all designated e-mail addresses, attachment of the
documents being served in “PDF” format, inclusion of specific identifying data in the
subject line and body of the e-mail, and a limitation on the size of the e-mail and
documents attached thereto. Fla. R. Jud. Admin. 2.516(b)(1)(E). In addition, but not in
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lieu of, redundant service may be accomplished by traditional means such as mail,
facsimile, or personal delivery. Fla. R. Jud. Admin. 2.516(b)(2).
In this case, Appellants’ initial e-mail service of the motion admittedly did not
comply with the requirements of rule 2.516 in several respects. After the twenty-one-day
safe harbor period expired, Appellants filed the motion and served it a second time, at
which point they complied with the rule 2.516 service requirements. When sanctions were
sought, Appellee challenged the sufficiency of the first service. Relying on Matte v.
Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014), and although expressing reservation, the
trial court denied fees because the initial e-mail service did not comply with rule 2.516. In
Matte, the Fourth District Court of Appeal held that “strict compliance with Florida Rule of
Judicial Administration 2.516 regarding e-mail service . . . is required before a court may
assess attorney’s fees pursuant to section 57.105, Florida Statutes.” 140 So. 3d at 690.
The Second District subsequently expressed conflict with Matte, but not with the
notion that strict compliance with rule 2.516 is necessary. Instead, it concluded that rule
2.516 is not applicable at all because a section 57.105 motion is not a document “filed in
any court proceeding.” Isla Blue Dev., LLC v. Moore, 223 So. 3d 1097, 1099 (Fla. 2d DCA
2017). In reaching this conclusion, the Second District followed an earlier decision from
that court, which applied the same reasoning to conclude that rule 2.516 does not apply
to a proposal for settlement. Boatright v. Philip Morris USA, Inc., 218 So. 3d 962 (Fla. 2d
DCA 2017). Indeed, it appears that the Second District correctly concluded that the
holding in Boatright governed its disposition in Isla Blue Development, LLC, given that
section 57.105 motions and proposals for settlement share a similar characteristic: neither
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the nature we address here. If the Second District is correct, there is a gaping hole in the
rules of procedure for “documents” that are served first and filed later. We cannot discern
anything in the history of this rule change manifesting an intent by the drafters to alter by
exclusion the procedure for service of this hybrid form of document. Nor do we think our
high court intended the change to create a void in the rules of procedure for service of
this category of document. In our view, like its predecessor, the revised rule 1.080 (which
now incorporates rule 2.516’s service requirements) is the rule that was intended to
govern the service of any document to be filed in any action, regardless of the timing of
the filing.
Accordingly, we certify conflict with our sister court in Isla Blue Development, LLC
and align ourselves with Wheaton v. Wheaton, 217 So. 3d 125 (Fla. 3d DCA) (holding
that service requirements of rule 2.516 apply to proposals for settlement even though
proposals are not filed contemporaneously with service), review granted, No. SC17-716,
2017 WL 4785810 (Fla. Oct. 24, 2017), for the reasons therein expressed and the
additional reasons we express herein.
Although Appellants do not direct our attention to any decision that conflicts with
Matte’s holding that strict compliance with rule 2.516 is mandated by the language of that
rule, they urge that Matte is incorrect and, to the extent rule 2.516 applies, present the
alternative argument that substantial compliance is sufficient. We disagree. As our
sister court in Matte reasoned, this rule uses mandatory language. The technical dictates
for e-mail service in the rule further evince an intent to mandate strict compliance with all
of the identified stringent standards for e-mail service to lessen the potential for an
inconspicuous e-mail to get buried in the voluminous inbox of a busy practitioner in the
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of the filing. The earliest it can be filed is twenty-two days after service. § 57.105(4),
Fla. Stat.
Prior to the adoption of rule 2.516 in 2012, rule 1.080 provided the methods of
service for “paper[s] filed in the action.” Fla. R. Civ. P. 1.080(a) (2011). Motions of this
nature—like all other motions—were routinely served in accordance with this rule, bearing
a certificate of service as prescribed by the rule, even though they were not “filed”
immediately. See Fla. R. Civ. P. 1.080(b), (c), (f) (2011). When ultimately filed, the
practice was to serve a notice of filing, not to serve a second copy of the same motion
with a supplemental certificate of service. The rule has never required the motion to be
served twice. Service and filing are distinct acts. Now, with e-mail service and e-filing,
when applicable, the motion is served by e-mail. Then, after the passage of the safe
harbor period, it is filed through the e-portal and sent to the other party via e-mail directly
through the e-portal system. See Fla. R. Jud. Admin. 2.525(e) (governing e-service of
filed documents). Although the motion is now served twice simply because of the design
of the e-portal system, there is no indication that the change to e-mail service and e-filing
was intended to alter the category of “documents” or “papers” that are to be governed by
rule 1.080, which now directs service in conformity with rule 2.516. The “filed in the action”
modifier is substantially the same in both generations of rule 1.080. Even though the
motion is now served twice, the redundant service at the time of filing cannot cure the
defect in the original service without undermining the letter of the statute and the purpose
of the safe harbor period.
Apart from our literal interpretation of the rule, we think it is also significant that
there is no other rule or statute that governs the procedure for service of documents of
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the nature we address here. If the Second District is correct, there is a gaping hole in the
rules of procedure for “documents” that are served first and filed later. We cannot discern
anything in the history of this rule change manifesting an intent by the drafters to alter by
exclusion the procedure for service of this hybrid form of document. Nor do we think our
high court intended the change to create a void in the rules of procedure for service of
this category of document. In our view, like its predecessor, the revised rule 1.080 (which
now incorporates rule 2.516’s service requirements) is the rule that was intended to
govern the service of any document to be filed in any action, regardless of the timing of
the filing.
Accordingly, we certify conflict with our sister court in Isla Blue Development, LLC
and align ourselves with Wheaton v. Wheaton, 217 So. 3d 125 (Fla. 3d DCA) (holding
that service requirements of rule 2.516 apply to proposals for settlement even though
proposals are not filed contemporaneously with service), review granted, No. SC17-716,
2017 WL 4785810 (Fla. Oct. 24, 2017), for the reasons therein expressed and the
additional reasons we express herein.
Although Appellants do not direct our attention to any decision that conflicts with
Matte’s holding that strict compliance with rule 2.516 is mandated by the language of that
rule, they urge that Matte is incorrect and, to the extent rule 2.516 applies, present the
alternative argument that substantial compliance is sufficient. We disagree. As our
sister court in Matte reasoned, this rule uses mandatory language. The technical dictates
for e-mail service in the rule further evince an intent to mandate strict compliance with all
of the identified stringent standards for e-mail service to lessen the potential for an
inconspicuous e-mail to get buried in the voluminous inbox of a busy practitioner in the
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modern, fast-paced practice of law. Besides the practical dilemma for trial courts in
applying a somewhat nebulous substantial compliance test, with the inherent result of
inconsistency and the potential for proliferation of evidentiary hearings, a relaxed rule of
service might undermine e-mail service altogether. 2 Accordingly, for the reasons
expressed in Matte and the additional reasons expressed herein, we hold that strict
compliance is required. Because Appellants concede that they did not strictly comply
with rule 2.516 when they initially served the section 57.105(4) motion, we affirm the trial
court’s denial of fees on this alternative argument.
In rejecting Appellants’ substantial compliance argument, we have not overlooked
our decision in Henderson-Bullard v. Lockard, 204 So. 3d 568 (Fla. 5th DCA 2016). That
case did not hold that strict compliance with rule 2.516 is unnecessary, as Appellants
contend. The holding in Lockard was that a lack of strict compliance with the rule does
not render a judgment void, an entirely different issue. Our decision there turned on the
application of Florida Rule of Civil Procedure 1.540, not the interpretation of rule 2.516.
Nor do we believe that relaxed compliance with rule 2.516 is authorized by Kuhajda
v. Borden Dairy Co. of Alabama, 202 So. 3d 391 (Fla. 2016). In that case, the rule of
procedure required that a proposal for settlement include an element that was not
required by the statute addressing the substance of proposals for settlement. Id. at 395.
The Florida Supreme Court concluded that the procedural rule should not “trump” the
statute or otherwise “be strictly construed to defeat a statute it is designed to implement.”
2The test for “substantial compliance” is heavily grounded in whether an omission
causes prejudice. See, e.g., Bank of N.Y. Mellon v. Johnson, 185 So. 3d 594 (Fla. 5th
DCA 2016). In a case like Isla Blue Development, LLC, where actual service was
accomplished in the traditional manner, prejudice might not be apparent, yet there was
not even an attempt to comply with the e-mail service requirement in that case.
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Id. at 395-96. Here, by contrast, there is no conflict between the rule and the statute.
Section 57.105 does not specify a method of service. If it did, then the statute would
control, because rule 2.516(a) expressly defers to statutorily prescribed methods of
service.
AFFIRMED; CONFLICT CERTIFIED.
JOLLEY, M.G., Associate Judge, concur.
BERGER, J., dissents with opinion
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BERGER, J. dissenting. Case No. 5D17-0386
I disagree with the majority based on the reasoning set forth in Isla Blue
Development, LLC v. Moore, 223 So. 3d 1097 (Fla. 2d DCA 2017) (concluding email
service requirements of rule 2.516(b)(1) do not apply to section 57.105(4) motions, which
provide that the required twenty-one-day safe harbor notice "must be served but may not
be filed with or presented to the court") and Boatright v. Philip Morris USA, Inc., 218 So.
3d 962 (Fla. 2d DCA 2017) (concluding email service requirements of rule 2.516(b)(1) do
not apply to proposals for settlement unless the proposals are attached to motions for
acceptance or enforcement under section 768.79(3), Florida Statutes (2013), or Florida
Rule of Civil Procedure 1.442(d) and are filed in court). As such, I would reverse the
order of the trial court and certify conflict with Matte v. Caplan, 140 So. 3d 686 (Fla. 4th
DCA 2014), the case on which the majority relies. 3
Accordingly, I dissent.
3 There is no notable difference between the language in section 57.105(4), which
states, "[a] motion by a party seeking sanctions under this section must be served but
may not be filed with or presented to the court unless, within 21 days after service of the
motion, the challenged paper, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected" and section 768.79(3), which provides, "[t]he offer
shall 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." Without
any explanation or reference to the other, the Fourth District Court of Appeal reached
opposite conclusions in Matte, 140 So. 3d at 690 (concluding strict compliance with rule
2.516 applies to section 57.105 motions that are served with required 21 day safe harbor
notice but not filed with court), and McCoy v. R.J. Reynolds Tobacco Co., 229 So. 3d 827,
829 (Fla. 4th DCA 2017) (concluding initial offer of judgment is outside email service
requirements of Rule 2.516(a)).
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