OLDCASTLE SOUTHERN GROUP, INC., A GEORGIA CORPORATION, Appellant,
RAILWORKS TRACK SYSTEMS, INC., A NEVADA CORPORATION AUTHORIZED TO TRANSACT BUSINESS IN THE STATE OF FLORIDA, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from the Circuit Court for Duval County. Thomas M.
P. Murnaghan and Jill K. Schmidt of Murnaghan & Ferguson,
P.A., Tampa, for Appellant.
Michael J. Korn of Korn & Zehmer, P.A., Jacksonville;
Eric L. Leach and C. Ryan Eslinger of Milton, Leach, Whtiman,
D'Andrea & Eslinger, P.A., Jacksonville, for
Track Systems, Inc., the plaintiff at trial, sent a proposal
for settlement by email to Oldcastle Southern Group,
Inc., the defendant. The proposal was received by Oldcastle,
not accepted, and then following trial Railworks received a
judgment more than 25 percent greater than the amount
demanded in the proposal. See § 768.79(1), Fla.
Stat. (2014). Oldcastle contends the proposal had to be
served in accordance with rule 2.516, Florida Rules of
Judicial Administration, and since it was not Railworks was
not entitled to an award of attorneys' fees. We hold that
the proposal did not have to be served in accordance with
rule 2.516. We also reject without further comment
Oldcastle's argument that the trial court awarded an
unreasonably high hourly rate to Railworks' attorneys and
undisputed that Railworks' proposal for settlement did
not contain a subject line on the email beginning with
"SERVICE OF COURT DOCUMENT"; did not include the
case number in the service line; and did not include in the
body of the email the case number, the court where the case
was pending, the name of the party, or the title of the
document served - all of which would be required if rule
2.516(b)(1)(E) applied. Oldcastle contends that these omissions
mean that the proposal was not served as required by rule
2.516, was therefore invalid, and the award of fees was
is a split of authority among other district courts as to
whether a proposal for settlement must be served as provided
by rule 2.516. Compare Wheaton v. Wheaton, 217 So.3d
125 (Fla. 3d DCA 2017), rev. granted, 2017 WL
4785810 (Fla. October 24, 2017), with McCoy v. R.J.
Reynolds Tobacco Co., 42 Fla.L.Weekly D2281, 2017 WL
4812662 (Fla. 4th DCA October 25, 2017), and Boatright v.
Philip Morris USA, Inc., 218 So.3d 962 (Fla. 2d DCA
2017). We adopt the view of McCoy and
Boatright and hold that compliance with rule 2.516
is not required when serving a proposal for settlement. We
certify conflict with Wheaton.
review of the issue of entitlement to fees is de novo.
Kuhajda v. Borden Dairy Co. of Alabama, LLC, 202
So.3d 391 (Fla. 2016). We construe the rules of court in the
same manner as we construe statutes. Saia Motor Freight
Line, Inc. v. Reid, 930 So.2d 598 (Fla. 2006). Section
768.79(3), Florida Statutes (2014), requires service of the
proposal, without specifying the manner of service,
"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." Rule 2.516
provides, in part,
(a) Service; When Required. Unless the court
otherwise orders, or a statute or supreme court
administrative order specifies a different means of service,
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.
parties agree that Railworks' proposal for settlement was
not a pleading. See Fla. R. Civ. P. 1.100(a).
Oldcastle contends that the proposal falls under rule
2.516(a)'s application to "every other document
filed in any court proceeding" and therefore "must
be served in accordance with this rule." Although -
consistent with section 768.79(3) - rule 1.442(d), Florida
Rules of Civil Procedure, requires "[a] proposal shall
be served on the party or parties to whom it is made, "
it continues by stating that a proposal "shall not be
filed unless necessary to enforce the provisions of this
rule." We agree with McCoy and
Boatright that since the proposal for settlement is
not to be filed when it is served, the proposal is not
included in the clause "every other document filed in
any court proceeding." McCoy, 42 Fla.L.Weekly
at D2282, 2017 WL 4812662, at *1; Boatright, 218
So.3d at 967.
also makes an argument concerning rule 2.516(d), which was
not addressed in McCoy, Boatright, or
Wheaton. Rule 2.516(d), states in part,
"Filing. All documents must be filed
with the court either before service or immediately
thereafter, unless otherwise provided for by general law
or other rules." (Emphasis added). Oldcastle argues
that the emphasized language supports its contention that the
proposal falls under rule 2.516(a) in that the proposal is an
"other document" but is not "filed in any
court proceeding" due to application of general law and
rules, specifically section 768.79(3) and rule 1.442(d). In
so arguing Oldcastle attempts to use subsection (d) to expand
the definition of "other document" in subsection
(a). We disagree with Oldcastle's argument.
argument regarding rule 2.516(d) suffers from the same
problem as the appellees' argument in Boatright
regarding subsection (b). There, Judge Badalamenti stated,
[Appellees'] expansive reading of rule 2.516(b)(1) would
render subsection (a) meaningless and only prevails if we
were to impermissibly read rule 2.516(b)(1) in isolation. By
its title, rule 2.516(a) sets forth when the service
requirements of rule 2.516 apply. Rule 2.516(a) confines the
scope of rule 2.516 to "every pleading subsequent to the
initial pleading and every other document filed in any
court proceeding." (Emphasis added.) Rule
2.516(b)(1) then sets forth the method by which those
documents must be served, which is principally by email,
albeit with some exceptions inapplicable to this case.
Reading rule 2.516(a) and (b)(1) together, the word
"documents" in subsection (b)(1) is confined in
meaning to "document[s] filed in any court proceeding,
" consistent with the text of subsection (a). . . . It