         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

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


KLAUS GOERSCH AND
BRIGITTE GOERSCH,

              Appellants,

 v.                                                        Case No. 5D17-386

CITY OF SATELLITE BEACH,

              Appellee.

________________________________/

Opinion filed July 20, 2018

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




                                              2
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




                                             3
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 (Fla. Oct. 24, 2017), for the reasons therein expressed and the

additional reasons we express herein.

        Although Appellants do not direct our attention to any decision that conflicts with

Matte’s holding that strict compliance with rule 2.516 is mandated by the language of that

rule, they urge that Matte is incorrect and, to the extent rule 2.516 applies, present the

alternative argument that substantial compliance is sufficient.     We disagree.     As our

sister court in Matte reasoned, this rule uses mandatory language. The technical dictates

for e-mail service in the rule further evince an intent to mandate strict compliance with all

of the identified stringent standards for e-mail service to lessen the potential for an

inconspicuous e-mail to get buried in the voluminous inbox of a busy practitioner in the




                                             6
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




                                              5
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 (Fla. Oct. 24, 2017), for the reasons therein expressed and the

additional reasons we express herein.

        Although Appellants do not direct our attention to any decision that conflicts with

Matte’s holding that strict compliance with rule 2.516 is mandated by the language of that

rule, they urge that Matte is incorrect and, to the extent rule 2.516 applies, present the

alternative argument that substantial compliance is sufficient.     We disagree.     As our

sister court in Matte reasoned, this rule uses mandatory language. The technical dictates

for e-mail service in the rule further evince an intent to mandate strict compliance with all

of the identified stringent standards for e-mail service to lessen the potential for an

inconspicuous e-mail to get buried in the voluminous inbox of a busy practitioner in the




                                             6
modern, fast-paced practice of law. Besides the practical dilemma for trial courts in

applying a somewhat nebulous substantial compliance test, with the inherent result of

inconsistency and the potential for proliferation of evidentiary hearings, a relaxed rule of

service might undermine e-mail service altogether. 2         Accordingly, for the reasons

expressed in Matte and the additional reasons expressed herein, we hold that strict

compliance is required. Because Appellants concede that they did not strictly comply

with rule 2.516 when they initially served the section 57.105(4) motion, we affirm the trial

court’s denial of fees on this alternative argument.

       In rejecting Appellants’ substantial compliance argument, we have not overlooked

our decision in Henderson-Bullard v. Lockard, 204 So. 3d 568 (Fla. 5th DCA 2016). That

case did not hold that strict compliance with rule 2.516 is unnecessary, as Appellants

contend. The holding in Lockard was that a lack of strict compliance with the rule does

not render a judgment void, an entirely different issue. Our decision there turned on the

application of Florida Rule of Civil Procedure 1.540, not the interpretation of rule 2.516.

       Nor do we believe that relaxed compliance with rule 2.516 is authorized by Kuhajda

v. Borden Dairy Co. of Alabama, 202 So. 3d 391 (Fla. 2016). In that case, the rule of

procedure required that a proposal for settlement include an element that was not

required by the statute addressing the substance of proposals for settlement. Id. at 395.

The Florida Supreme Court concluded that the procedural rule should not “trump” the

statute or otherwise “be strictly construed to defeat a statute it is designed to implement.”



       2The test for “substantial compliance” is heavily grounded in whether an omission
causes prejudice. See, e.g., Bank of N.Y. Mellon v. Johnson, 185 So. 3d 594 (Fla. 5th
DCA 2016). In a case like Isla Blue Development, LLC, where actual service was
accomplished in the traditional manner, prejudice might not be apparent, yet there was
not even an attempt to comply with the e-mail service requirement in that case.


                                             7
Id. at 395-96. Here, by contrast, there is no conflict between the rule and the statute.

Section 57.105 does not specify a method of service. If it did, then the statute would

control, because rule 2.516(a) expressly defers to statutorily prescribed methods of

service.

       AFFIRMED; CONFLICT CERTIFIED.

JOLLEY, M.G., Associate Judge, concur.
BERGER, J., dissents with opinion




                                           8
BERGER, J. dissenting.                                               Case No. 5D17-0386

       I disagree with the majority based on the reasoning set forth in Isla Blue

Development, LLC v. Moore, 223 So. 3d 1097 (Fla. 2d DCA 2017) (concluding email

service requirements of rule 2.516(b)(1) do not apply to section 57.105(4) motions, which

provide that the required twenty-one-day safe harbor notice "must be served but may not

be filed with or presented to the court") and Boatright v. Philip Morris USA, Inc., 218 So.

3d 962 (Fla. 2d DCA 2017) (concluding email service requirements of rule 2.516(b)(1) do

not apply to proposals for settlement unless the proposals are attached to motions for

acceptance or enforcement under section 768.79(3), Florida Statutes (2013), or Florida

Rule of Civil Procedure 1.442(d) and are filed in court). As such, I would reverse the

order of the trial court and certify conflict with Matte v. Caplan, 140 So. 3d 686 (Fla. 4th

DCA 2014), the case on which the majority relies. 3

       Accordingly, I dissent.




       3 There is no notable difference between the language in section 57.105(4), which
states, "[a] motion by a party seeking sanctions under this section must be served but
may not be filed with or presented to the court unless, within 21 days after service of the
motion, the challenged paper, claim, defense, contention, allegation, or denial is not
withdrawn or appropriately corrected" and section 768.79(3), which provides, "[t]he 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." Without
any explanation or reference to the other, the Fourth District Court of Appeal reached
opposite conclusions in Matte, 140 So. 3d at 690 (concluding strict compliance with rule
2.516 applies to section 57.105 motions that are served with required 21 day safe harbor
notice but not filed with court), and McCoy v. R.J. Reynolds Tobacco Co., 229 So. 3d 827,
829 (Fla. 4th DCA 2017) (concluding initial offer of judgment is outside email service
requirements of Rule 2.516(a)).


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