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Florida Fourth DCA rules that proposals for settlement are not subject to the e-mail requirements of Florida Rule of Judicial Administration 2.516

On October 25, 2017, in McCoy v. R.J. Reynolds Tobacco Company, No., 4D16-1378, the Florida Fourth DCA reversed a trial court’s order denying a prevailing plaintiff an award of attorney’s fees under section 768.79, Florida Statutes. The trial court had denied the plaintiff’s motion for fees on the basis that the plaintiff’s proposal for settlement, which had been served on the defendants by certified mail, did not comply with e-mail requirements of Florida Rule of Judicial Administration 2.516. On appeal, the Florida Fourth DCA noted that Rule 2.516(a) applies only pleadings subsequent to the initial pleading and every other document filed in any court proceeding. The Court concluded that the email requirement was not triggered because a proposal for settlement is not a pleading within the meaning of Fla. R. Civ. P. 1.100(a) and is expressly prohibited from filing under section 768.79.

The Court noted its disagreement with the contrary position of the Florida Third DCA in Wheaton v. Wheaton, 217 So. 3d 125, 126 (Fla. 3d DCA 2017). Although not mentioned by the Court, this decision is also a repudiation of the interpretation of Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014) advanced by the Third DCA in Wheaton, in which it was alleged that Matte v. Caplan “implicitly” recognized that proposals for settlement were subject to the email rule. In Wheaton, the Third DCA had also cited a First DCA decision, Floyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015), as “holding that a proposal for settlement served by e-mail must comply with the e-mail service requirements of rule 2.516.” However, this was at most dicta in Floyd v. Smith because the email rule was not the issue before the court in that case.

There is a consequently a DCA split on this issue between the Third DCA and the Fourth DCA, with the First DCA likely siding in the future with the Third DCA’s position that proposals for settlement are subject to the email rule.