       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 15, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D16-490
                         Lower Tribunal No. 15-190-P
                            ________________


                          Sandra Kent Wheaton,
                                    Appellant,

                                        vs.

                             Mardella Wheaton,
                                    Appellee.



     An Appeal from a non-final order from the Circuit Court for Monroe
County, Luis M. Garcia, Judge.

      Hershoff, Lupino & Yagel and Robert C. Stober (Tavernier), for appellant.

      Vernis & Bowling of the Florida Keys and Matthew S. Francis (Islamorada),
for appellee.


Before SUAREZ, C.J., and EMAS and FERNANDEZ, JJ.

      EMAS, J.
      Appellant Sandra Wheaton seeks review of the trial court’s order denying

her motion for attorney’s fees pursuant to a proposal for settlement. The trial court

denied the motion because the proposal for settlement, which was served upon

Appellee by e-mail, failed to comply with Florida Rule of Judicial Administration

2.516, which sets forth certain requirements for service by e-mail. Appellant

contends that rule 2.516, and its e-mail requirements, are inapplicable because a

proposal for settlement is not filed contemporaneously with the court.        A trial

court’s interpretation of court rules is reviewed de novo, and “[o]ur courts have

long recognized that the rules of construction applicable to statutes also apply to

the construction of rules.” Saia Motor Freight Line, Inc. v. Reid, 930 So. 2d 598,

599 (Fla. 2006) (quoting Brown v. State, 715 So. 2d 241, 243 (Fla. 1998)).       We

affirm the trial court’s ruling, and hold that proposals for settlement served by e-

mail must comply with the e-mail service provisions of rule 2.516.

      The relevant portions of rule 2.516 provide:

      (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, except
      applications for witness subpoenas and documents served by formal
      notice or required to be served in the manner provided for service of
      formal notice, must be served in accordance with this rule on each
      party. No service need be made on parties against whom a default has
      been entered, except that pleadings asserting new or additional claims
      against them must be served in the manner provided for service of
      summons.



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        (b) Service; How Made. When service is required or permitted to be
        made upon a party represented by an attorney, service must be made
        upon the attorney unless service upon the party is ordered by the
        court.
        (1) Service by Electronic Mail (“e-mail”). All documents required
        or permitted to be served on another party must be served by e-
        mail, unless the parties otherwise stipulate or this rule otherwise
        provides. A filer of an electronic document has complied with this
        subdivision if the Florida Courts e-filing Portal (“Portal”) or other
        authorized electronic filing system with a supreme court approved
        electronic service system (“e-Service system”) served the document
        by e-mail or provided a link by e-mail to the document on a website
        maintained by a clerk (“e-Service”). The filer of an electronic
        document must verify that the Portal or other e-Service system uses
        the names and e-mail addresses provided by the parties pursuant to
        subdivision (b)(1)(A).

(Emphasis added.)

        The rule thereafter delineates a variety of formatting and content

requirements for any document that is served by e-mail.                   See rule

2.516(b)(1)(E)(i)-(iv).1 It is undisputed that the instant proposal for settlement,

served by e-mail, did not meet the service by e-mail requirements of rule 2.516.

1   Rule 2.516(b)(1)(E) provides:

        Format of E-mail for Service. Service of a document by e-mail is
        made by an e-mail sent to all addresses designated by the attorney or
        party with either (a) a copy of the document in PDF format attached
        or (b) a link to the document on a website maintained by a clerk.

        (i) All documents served by e-mail must be sent by an e-mail message
        containing a subject line beginning with the words “SERVICE OF
        COURT DOCUMENT” in all capital letters, followed by the case
        number of the proceeding in which the documents are being served.

        (ii) The body of the e-mail must identify the court in which the

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      However, in asserting that proposals for settlement do not fall within the

scope of rule 2.516, Appellant relies upon the language in rule 2.516(a) which

provides that “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.” Appellant contends that because the proposal for settlement is

neither a pleading nor a “document filed in any court proceeding,” it is not subject

to the requirements of rule 2.516.

      It is true, of course, that both the proposal for settlement statute (section

768.79, Florida Statutes) and the proposal for settlement rule (Florida Rule of Civil

Procedure 1.442) prohibit counsel from filing a proposal for settlement

contemporaneously with service of the proposal. In fact, a proposal for settlement

may only be filed with the court if the proposal is accepted or if filing is necessary

      proceeding is pending, the case number, the name of the initial party
      on each side, the title of each document served with that e-mail, and
      the name and telephone number of the person required to serve the
      document.

      (iii) Any document served by e-mail may be signed by any of the
      “/s/,” “/s,” or “s/” formats.

      (iv) Any e-mail which, together with its attached documents, exceeds
      the appropriate size limitations specified in the Florida Supreme Court
      Standards for Electronic Access to the Court, must be divided and sent
      as separate e-mails, no one of which may exceed the appropriate size
      limitations specified in the Florida Supreme Court Standards for
      Electronic Access to the Court and each of which must be sequentially
      numbered in the subject line.


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for enforcement purposes.2     Appellant asserts that compliance with rule 2.516

would be required only upon the subsequent filing of a motion for enforcement of

the proposal for settlement (since such a motion would be served and filed

contemporaneously).

      While Appellant’s premise is correct (a party is not permitted to file her

proposal for settlement contemporaneously with service of the proposal), we

disagree with her conclusion, as it focuses on the incorrect portion of the rule. The

relevant language is contained in subdivision (b) of rule 2.516, which provides in

pertinent part: “All documents required or permitted to be served on another

party must be served by e-mail, unless the parties otherwise stipulate or this rule

otherwise provides.” In this case, the document in question (the proposal for

settlement) is “permitted to be served on another party.” And because the parties

did not “otherwise stipulate,” and because the rule does not “otherwise provide,”3


2 Rule 1.442(d) provides: “A proposal 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.” Section 768.79(3), Fla. Stat. (2015) provides similarly: “The offer shall
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.”
3 To the contrary, subdivision (d) of rule 2.516 provides in pertinent part: “All

documents must be filed with the court either before service or immediately
thereafter, unless otherwise provided for by general law or other rules.” This
provision implicitly acknowledges that even if a document (such as a proposal for
settlement) is not to be filed contemporaneously, it nevertheless falls within the
purview of this rule. Had the Florida Supreme Court intended to exempt such
served-but-not-contemporaneously-filed documents from the requirements of rule
2.516, it surely would have said so in subdivision (d).

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this proposal for settlement “must be served by e-mail” and therefore must be

served in compliance with the e-mail requirements of rule 2.516, regardless of

whether the document is contemporaneously filed with the court. We find this

language plain and unambiguous, and hold that a proposal for settlement falls

clearly within the scope of rule 2.516(b) and is subject to that rule’s requirements.

      In so holding, we agree with the decision and analysis of our sister court in

Floyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015) (holding that a proposal for

settlement served by e-mail must comply with the e-mail service requirements of

rule 2.516). See also Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014)

(affirming trial court’s denial of a motion for attorney’s fees sought as a sanction

pursuant to section 57.105(4), Florida Statutes (2013), because the motion was not

served in strict compliance with rule 2.516, and implicitly recognizing that a

motion for attorney’s fees under section 57.105(4) must comply with rule 2.516

even though the motion cannot be filed contemporaneously with service on

opposing counsel).

      Affirmed.




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