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Goersch v. City of Satellite Beach

Florida Court of Appeals, Fifth District

July 20, 2018

KLAUS GOERSCH AND BRIGITTE GOERSCH, Appellants,
v.
CITY OF SATELLITE BEACH, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

          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 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 are filed contemporaneously with the initial service.[1] Nonetheless, because we disagree with the Second District's conclusion that "filed in any court proceeding" under rule 2.516(a) means contemporaneously filed, we reject Appellants' claim that rule 2.516 is inapplicable.

         The plain language of rule 2.516 leads us to the inescapable conclusion that the timing of the "filing" is of no consequence to the requirement of service under the rule. The rule says "filed," not immediately filed or contemporaneously filed. The motion at issue here was ultimately "filed," albeit much later than when it was initially served. Had it not been filed at some point the document would have been inconsequential and this entire dispute avoided. Our conclusion on this point is buttressed by rule 2.516(d), which governs the timing of the filing of the document. It requires that all documents "must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules." Fla. R. Jud. Admin. 2.516(d) (emphasis supplied). Accordingly, rule 2.516 contemplates two temporal categories of filed documents-those that are filed immediately and those that are filed at some other time. No distinction is made in the rule regarding service of these two distinct categories of documents. In the case of a section 57.105 motion, the general law controls the timing 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 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 ...


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