       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

  LAW OFFICES OF FRED C. COHEN, P.A., DAVID B. NORRIS, P.A.,
         BRENT G. WOLMER, P.A., PETER R. RAY, P.A.,
  JAMES S. TELEPMAN, P.A., and GREGORY R. COHEN, P.A., d/b/a
     COHEN, NORRIS, WOLMER, RAY, TELEPMAN & COHEN,
                          Appellants,

                                    v.

                        H.E.C. CLEANING, LLC,
                               Appellee.

                             No. 4D19-1070

                           [February 5, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey Dana Gillen, Judge; L.T. Case No.
502015CA008506XXXXMB.

  Neil P. Cherubin of Cohen, Norris, Wolmer, Ray, Telepman & Cohen,
North Palm Beach, for appellants.

  Lance W. Shinder and Chelsea A. Hackman of Shinder Law Group, P.A.,
Boca Raton, for appellee.

                                EN BANC

GERBER, J.

   A law firm, which successfully obtained the dismissal of a legal
malpractice action filed against it by a former client, appeals from the
circuit court’s final order striking the law firm’s section 57.105 motion
against the former client and the former client’s new attorney. The circuit
court granted the new attorney’s motion to strike the law firm’s section
57.105 motion because, pursuant to this court’s decision in Matte v.
Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014), the law firm’s section 57.105
safe harbor notice did not comply with Florida Rule of Judicial
Administration 2.516’s e-mail service requirements.

  We reverse. Our supreme court, in Wheaton v. Wheaton, 261 So. 3d
1236 (Fla. 2019), expressly disapproved Matte’s holding that a section
57.105 safe harbor notice must comply with rule 2.516’s e-mail service
requirements.

    Therefore, we have decided this case en banc to recede from Matte and
Estimable v. Prophete, 219 So. 3d 1001 (Fla. 4th DCA 2017) (which
followed Matte), and instead hold that rule 2.516’s e-mail service
requirements do not apply to service of a section 57.105 safe harbor notice.

                            Procedural History

    While the former client’s legal malpractice action against the former law
firm was pending, the former law firm e-mailed to the former client’s new
attorney a twenty-one-day safe harbor notice and proposed motion for
sanctions pursuant to section 57.105, Florida Statutes (2015). The
proposed motion intended to seek recovery of the law firm’s attorney’s fees
not only from the former client, but also the new attorney. The motion
argued that the law firm was entitled to such recovery because the former
client and the new attorney knew or should have known that the legal
malpractice action was not supported by material facts.

   Despite having    been served with the law firm’s section 57.105 safe
harbor notice and    proposed motion for sanctions, the former client and
the new attorney     did not voluntarily dismiss the former client’s legal
malpractice action   against the law firm.

   After the twenty-one-day safe harbor period expired, the law firm filed
the section 57.105 motion with the circuit court.

    The new attorney ultimately withdrew from representing the former
client in the legal malpractice action. The circuit court ordered the former
client to retain new counsel by a certain date because the former client
was a corporation which must be represented by counsel. When the
former client did not retain new counsel by the deadline, the circuit court
dismissed the legal malpractice action against the law firm.

   The law firm then set the section 57.105 motion on the circuit court’s
docket for an evidentiary hearing.

   Before the evidentiary hearing, the new attorney filed a motion to strike
the law firm’s section 57.105 motion. The new attorney argued that the
law firm’s service of its section 57.105 safe harbor notice did not comply
with rule 2.516’s e-mail service requirements. Specifically, the new
attorney argued, in pertinent part, that the law firm’s e-mail service was
defective because: (1) the e-mail’s subject line did not contain, in all

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capital letters, the words “SERVICE OF COURT DOCUMENT” followed by
the case number, and (2) the e-mail’s body failed to contain the case
number, name of the initial party of each side, title of each document
served with that e-mail, and the sender’s name and telephone number.

   In support of the motion to strike, the new attorney relied upon this
court’s decision in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014),
which held that service of a section 57.105 safe harbor notice must strictly
comply with rule 2.516’s e-mail service requirements.

   The law firm filed a response, arguing that its e-mail service of its
section 57.105 safe harbor notice was not required to comply with rule
2.516’s e-mail service requirements. According to law firm, the new
attorney’s reliance on this court’s decision in Matte was misplaced because
the Florida Supreme Court, in Wheaton v. Wheaton, 261 So. 3d 1236 (Fla.
2019), expressly disapproved Matte.

   The new attorney filed a reply, arguing that Wheaton’s disapproval of
Matte was dicta because Wheaton involved the service of a section 768.79
proposal for settlement, and did not involve the service of a section 57.105
safe harbor notice.

   After a hearing, the circuit court entered a final order granting the new
attorney’s motion to strike the law firm’s section 57.105 motion. The
circuit court held, in pertinent part:

          [The law firm] relies on the recent opinion in []Wheaton v.
      []Wheaton, 261 So. 3d 1236 (Fla. 2019)[,] for the proposition
      that [the new attorney’s] motion to strike should be denied
      because, in effect, Wheaton overrules Fourth District
      precedent upon which [the new attorney] relies. Wheaton
      involved procedure for making formal settlement proposals
      pursuant to § 768.79, Fla. Stat., Fla. R. Civ. P. 1.442 and Fla.
      R. Jud. Admin. 2.516. This case involves procedure for formal
      warning of intent to seek . . . [attorney’s] fees as sanctions
      pursuant to § 57.105, Fla. Stat. and Fla. R. Jud. Admin.
      2.516. While the situations are similar, they are nevertheless
      different. The latter situation was expressly addressed by the
      Fourth District in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th
      DCA 2014), and Estimable v. Prophete, 219 So. 3d 1001 (Fla.
      4th DCA 2017). Had the Supreme Court in Wheaton intended
      to reject the analysis employed by the Fourth District
      concerning      technical     procedural    and      substantive
      requirements evoked in a motion pursuant to § 57.105, Fla.

                                     3
      Stat., it could have expressly done so. It did not. Indeed, [the
      majority] opinion expressly notes:

            In support of its conclusion [in Wheaton], the Third
         District relied on two cases: the First District’s decision
         in Floyd [v. Smith], 160 So. 3d 567 [(Fla. 1st DCA 2015)],
         and the Fourth District’s decision in Matte, 140 So. 3d
         686. However, neither case addresses the issue of
         rule 2.516 as it relates to proposals for settlement.
         In Floyd, the First District considered whether a
         proposal for settlement had to contain “a certificate of
         service in the form required by rule 1.080.” Floyd, 160
         So. 3d at 569 (quoting Fla. R. Civ. P. 1.442(c)(2)(G)).
         Having addressed that specific issue, Floyd is
         inapplicable to the instant case because it did not
         consider the issue of whether rule 2.516 applied to
         service of a proposal for settlement. Likewise, in Matte,
         the court addressed a motion for sanctions sought
         pursuant to section 57.105, Florida Statutes (2013).

         [Wheaton, 261 So. 3d at 1243] (emphasis added).

         Consequently, this Court remains bound by the Fourth
      District’s holdings in both Matte and Estimable.

         Therefore, [the new attorney’s] motion is granted and [the
      law firm’s] claim is stricken. . . .

   This appeal followed.

                                2. Our Review

   Although normally a circuit court’s order denying attorney’s fees under
section 57.105 is reviewed for an abuse of discretion on the motion’s
merits, the standard of review on the instant issue is de novo because the
issue presents a pure question of law. See Paul v. Avrahami, 216 So. 3d
647, 649 (Fla. 4th DCA 2017) (“We review the trial court’s denial of
attorney’s fees under section 57.105(1), Florida Statutes, for an abuse of
discretion. To the extent the trial court’s determination on a motion for
attorney’s fees is based on an issue of law, our standard of review is de
novo.”) (emphasis added; internal citation omitted).

   Based on our review of our supreme court’s Wheaton opinion, we
conclude that Matte and Estimable are no longer good law. We will briefly

                                     4
examine rule 2.516, Matte, and Wheaton. (We do not need to review
Estimable, which merely followed Matte). We then provide our reasoning.

a. Florida Rule of Judicial Administration 2.516

  Rule 2.516 provides, in pertinent 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, 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.

     (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. . . .

     ....

     (E) 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 and case style of the proceeding
     in which the documents are being served.


                                    5
      (ii) The body of the e-mail must identify the court in which
      the 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. . . .

Fla. R. Jud. Admin. 2.516 (heading emphases omitted; other emphasis
added).

b. Matte v. Caplan

   In Matte, we held that “strict compliance with Florida Rule of Judicial
Administration 2.516 regarding e-mail service of pleadings is required
before a court may assess attorney’s fees pursuant to section 57.105,
Florida Statutes.” 140 So. 3d at 690. This court reasoned:

      [S]ection 57.105 requires service of the motion on the plaintiff
   twenty-one days prior to filing with the court. “Service” is defined
   and regulated in Rule 2.516. The e-mail service requirements,
   which were implemented in 2012, use mandatory language
   stating that service “must” be made in the manner described. Fla.
   R. Jud. Admin. 2.516(b)(1)(E)(i)-(iv); In re Amendments to Fla.
   Rules of Jud. Admin. et al., 102 So. 3d 505, 515-17 (Fla. 2012).
   The rule requires that the e-mail subject line contain the words
   SERVICE OF COURT DOCUMENT, all in capitals and followed by
   the case number. This is important, because anyone with an e-
   mail account knows that users frequently receive many e-mails
   about many different topics. The capitalized notification advising
   that the e-mail relates to a court document is critical to assure
   that the recipient opens the e-mail and reviews the document
   promptly.

Id. at 689-90 (emphasis added).

c. Wheaton v. Wheaton

   In contrast, in Wheaton, our supreme court evaluated “whether
proposals for settlement made pursuant to section 768.79, Florida
Statutes, and Florida Rule of Civil Procedure 1.442 must comply with the
e-mail service provisions of Florida Rule of Judicial Administration 2.516.”
261 So. 3d at 1238. The supreme court held that proposals for settlement
do not need to comply with rule 2.516’s service provisions:



                                      6
          The provisions of rule 2.516 that are at issue in this case
      are subdivision (a), “Service; When Required,” and subdivision
      (b), “Service; How Made.” According to [subdivision (a)], “every
      pleading subsequent to the initial pleading and every other
      document filed in any court proceeding . . . must be served in
      accordance with this rule.” Fla. R. Jud. Admin. 2.516(a). The
      rule goes on to state in [subdivision (b)] that “[a]ll documents
      required or permitted to be served on another party must be
      served by e-mail, unless the parties otherwise stipulate or this
      rule provides otherwise.” Fla. R. Jud. Admin. 2.516(b)(1).
      Therefore, the plain language of the rule provides that if a
      document is (1) a pleading subsequent to the initial pleading,
      or (2) a document filed in any court proceeding, it must be
      served according to the rule. Then, the rule goes on to provide
      that service must be made by email if the document (1)
      requires service or (2) permits service.

          . . . [I]f rule 2.516 creates two groups of documents that
      must be filed – documents that are required to be served and
      documents that are permitted to be served – proposals for
      settlement would not fall in the latter group. The proposal for
      settlement statute provides that a proposal “shall be served”
      on the party to whom it is made, but “shall not be filed” unless
      it is accepted or filing is necessary to enforce the provisions of
      the statute. § 768.79(3), Fla. Stat. (2018). Similarly, the rule
      that implements section 768.79 states “[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.” Fla. R. Civ. P. 1.442(d). We have previously held that
      the word “shall” is mandatory in nature. Therefore, a proposal
      for settlement is a document that must be served on the party
      to whom it is made but must not be filed with the court. By
      its plain language, a proposal for settlement is not a required
      document as contemplated by rule 2.516.

Id. at 1242-43 (other internal citations and quotation marks omitted).

   Additionally, the supreme court expressly disapproved Matte:

          [I]n Matte, the court addressed a motion for sanctions
      sought pursuant to section 57.105, Florida Statutes (2013).
      In that case, the court overlooked the limitation contained in
      rule 2.516(a) and began its analysis by construing subdivision
      (b). In doing so, the court found that preliminary service of a

                                      7
      motion for sanctions under section 57.105 must be
      accomplished by e-mail. However, motions for sanctions are
      similar to proposals for settlement in that they are forbidden
      from being initially filed. This . . . constitutes a fatal flaw in
      that court’s reasoning.

Id. at 1243 (emphasis added; citations and quotations marks omitted).

   d. Our Reasoning

   Given Wheaton’s reasoning, it appears Matte is no longer good law.
While Wheaton and Matte are distinguishable, because Wheaton addressed
whether rule 2.516 applies to section 768.79 proposals for settlement, and
Matte addressed whether rule 2.516 applies to section 57.105 safe harbor
notices, we cannot ignore that Wheaton expressly disapproved Matte,
because pre-filing service of section 57.105 safe harbor notices are similar
to pre-filing service of section 768.79 proposals for settlement.

   Based on the foregoing, we recede from Matte and Estimable, and
instead hold that rule 2.516’s e-mail service requirements do not apply to
service of a section 57.105 safe harbor notice.

    Applying that holding to the instant case, we reverse the circuit court’s
order granting the new attorney’s motion to strike the law firm’s section
57.105 motion. We remand for the circuit court to deny the new attorney’s
motion, and consider the parties’ evidence and arguments on the amount
of attorney’s fees which the law firm is entitled to recover under its section
57.105 motion. All other arguments which the new attorney raised in the
answer brief lack merit, and do not warrant further discussion.

   Reversed and remanded for proceedings consistent with this opinion.

LEVINE, C.J., and WARNER, GROSS, TAYLOR, MAY, DAMOORGIAN, CIKLIN,
CONNER, FORST, KLINGENSMITH and KUNTZ, JJ., concur.

                            *         *         *

   Not final until disposition of timely filed motion for rehearing.




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