Update: In 2019, the Florida Supreme Court issued its opinion in Wheaton v. Wheaton, resolving the district split discussed in this article. The Florida Supreme Court held that a proposal for settlement is not invalid for failure to strictly comply with the Florida Rules of Judicial Administration governing service by email. 

Proposals for settlement in Florida are notorious for their numerous procedural traps. The drafters of the proposal for settlement rules intended them as a procedural device to encourage parties to settle claims without going to trial. Aspen v. Bayless, 564 So. 2d 1081, 1083 (Fla. 1990). In practice, however, the rules have significantly increased litigation, spawning countless trial court controversies and many appellate opinions. Campbell v. Goldman, 959 So. 2d 223, 227 (Fla. 2007) (Pariente, J., specially concurring). Because proposals for settlement are in derogation of the common law, they are strictly constructed, and failure to strictly comply with the procedural requirements will render a proposal invalid. Id. at 226. Thus, even minor procedural or linguistic defects in a proposal for settlement can invalidate a proposal for settlement.

The latest controversy involves the service of proposals for settlement by email. Because Florida Rule of Civil Procedure 1.442 and Section 768.79, Florida Statutes, require that proposals for settlement be served by a party, but not filed, they are not served via the Florida E-Filing Portal. Thus, there is controversy as to whether a proposal for settlement is invalid if it is not served in strict compliance with the rules for email service codified in Florida Rule of Judicial Administration 2.516.

In Wheaton v. Wheaton, 217 So. 3d 125 (Fla. 3d DCA 2017), the Third District Court of Appeal held that a proposal for settlement was invalid because the email serving the proposal did not strictly comply with the procedural requirements for serving case documents by email. Pursuant to Florida Rule of Judicial Administration 2.516(b), there are numerous formatting and content requirements for serving documents by email, such as including the case number in the email’s subject line.

In Wheaton, it was undisputed that the proposal, served by email, did not comply with Rule 2.516(b). The trial court rejected Appellant’s motion for attorney’s fees for failure to strictly comply with Rule 2.516(b).

On appeal, Appellant argued that Rule 2.516(b) did not apply, because a proposal for settlement is neither a “pleading” nor a “document filed in a court proceeding.” The Third DCA rejected this argument, holding that Rule 2.516 requires all documents served on another party to be served by email. Thus, the trial court’s order denying attorney’s fees was affirmed.

Three other district court of appeal opinions have been announced since Wheaton, all of which reject the Third DCA’s analysis.

In Boatright v. Philip Morris USA, Inc., 218 So. 3d 962 (Fla. 2d DCA 2017), Appellants served their proposals for settlements by certified mail, and did not serve them by email. The trial court refused to enforce the proposals, concluding that they were invalid because they were not served by email following the procedures of Rule 2.516.

The Second DCA reversed the trial court’s order. It held that both Section 768.79 and Rule 1.442 do not provide for any specific method for serving proposals for settlement. Moreover, the statute and rule both explicitly state that proposals must not be filed at the time they are initially served.

In holding that service by email is not the exclusive method for serving a proposal for settlement, the Second DCA performed a detailed textual analysis of Section 768.79, Florida Rules of Civil Procedure 1.080 and 1.442, and Florida Rule of Judicial Administration 2.516. In analyzing the interplay of the statute and the rules, the court concluded that service by mail is a permissible method of service, and that Rule 2.516 does not apply to case documents that are not filed in the action.

In reversing, the Second DCA certified conflict with Wheaton, and distinguished its opinion from several other cases that implied that service of court documents by email was mandatory.

The Fourth District Court of Appeal followed Boatright in the case of McCoy v. R.J. Reynolds Tobacco Co., 229 So. 3d 827 (Fla. 4th DCA 2017). Appellants in this case also served proposals for settlement via certified mail, and not by email. The Fourth DCA held that where a party has actual notice of an otherwise valid proposal for settlement, the denial of recovery because the offer was not emailed would “allow the procedural tail of the law to wag the substantive dog.”

In Oldcastle Southern Group v. Railworks Track Systems, 43 Fla. L. Weekly D 22 (Fla. 1st DCA Dec. 21, 2017), the First District Court of Appeal also rejected the Wheaton opinion. The Oldcastle court held that a proposal for settlement was valid despite being served by email, but not strictly complying with Rule 2.516.

The Florida Supreme Court has accepted jurisdiction on Wheaton. Thus, we can expect that a decision resolving the district court split will be forthcoming. Until the supreme court reaches a decision, the safest method for serving proposals for settlement is to serve them by email in strict compliance with Rule 2.516. Proposals served in this manner will be valid under all of the opinions addressing this issue.

Finally, as a practice pointer, we have seen in the cases above that proposals for settlement can be invalidated due to a mere improperly-formatted email. A trial court order holding a proposal unenforceable could cause a client to lose out on a potentially large attorney’s fee award. Therefore, service of proposals for settlement should only be performed by the attorney responsible for the matter, or highly experienced staff specifically trained in the requirements of Rule 2.516. All attorneys should likewise carefully review the email serving a proposal for settlement, and immediately serve a corrected proposal if any defects are discovered.

Scott J. Edwards is an appellate and litigation support attorney in Boca Raton. He is a member of the South Palm Beach County Bar Association Young Lawyers Section Board of Directors.

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