final until disposition of timely filed motion for rehearing.
from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; John J. Murphy III, Judge; L.T. Case No.
08-25806 CACE (19) and 08-80000 CACE (19).
H. Humphries, Shea T. Moxon, Maegen P. Luka and Thomas J.
Seider of Brannock & Humphries, Tampa; and Scott
Schlesinger, Steven Hammer, Jonathan R. Gdanski and Brittany
Chambers of Schlesinger Law Offices, P.A., Fort Lauderdale,
Michael Edson of King & Spalding LLP, Washington, D.C.;
Val Leppert, William L. Durham II, and Chad A. Peterson of
King & Spalding LLP, Atlanta, Georgia; and Stephanie E.
Parker and John M. Walker of Jones Day, Atlanta, Georgia, for
appellees, R.J. Reynolds Tobacco Company and Lorillard
Geoffrey J. Michael of Arnold & Porter LLP, Washington,
D.C., for appellee, Philip Morris USA Inc.
reverse the circuit court's order denying a motion for
attorney's fees based upon a 2014 proposal for settlement
under section 768.79, Florida Statutes (2015).
24, 2014, the plaintiff/appellant served a proposal for
settlement on each of three defendants. The proposals were
served by U.S. certified mail. The plaintiff also filed a
Notice of Serving Proposal for Settlement via e-mail on the
defendants had actual knowledge of the proposals for
settlement and did not accept them.
trial, the plaintiff obtained a verdict that entitled him to
attorney's fees under section 768.79. The plaintiff moved
for attorney's fees. The defendants opposed an award on
procedural grounds ― that he failed to e-mail the
proposals under Florida Rule of Judicial Administration
circuit court denied the motion for fees for the failure to
comply with Rule 2.516.
party has actual notice of an offer of settlement, and the
offering party has satisfied the requirements of section
768.79 on entitlement, to deny recovery because the initial
offer was not e-mailed is to allow the procedural tail of the
law to wag the substantive dog. See Kuhajda v. Borden
Dairy Co. of Ala., LLC., 202 So.3d 391, 395-96 (Fla.
2016). We agree with the analysis of Judge Badalamenti in
Boatright v. Philip Morris USA Inc., 218 So.3d 962
(Fla. 2d DCA 2017).
focus of the statute is on actual notice - an offer of
judgment is required to 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." § 768.79(3), Fla.
Stat. (2014). Echoing the requirements of the statute,
Florida Rule of Civil Procedure 1.442(d) provides that an
offer "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."
those documents for which e-mail service is required, Rule