Fourth District Court of Appeals Stands Alone in Requiring Service of Motion for Attorneys’ Fees

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Litigators in the judicial circuits governed by the Fourth District Court of Appeals (Fourth DCA) need to be aware of a case which changes the way in which motions for sanctions pursuant to F.S. section 57.105 must be served on opposing counsel. Specifically, according to the holding in Matte v. Caplan, 140 So.3d 686 (Fla. 4th DCA 2014), in order to be entitled to receive attorneys’ fees under F.S. section 57.105, the motion requesting attorneys’ fees must be served in strict compliance with Fla. R. Jud. Admin. 2.516 (Rule 2.516).

In order to comply with Rule 2.516, the motion attached to the email must be in PDF format or a link and cannot be in Word format. Furthermore, the subject line must state “service of court document” and the Circuit Court case number must be properly identified. Finally, the body of the email must contain all of the required information listed in Rule 2.516 (b)(1)(E) (ii).

Citing Montgomery v. Larmoyeux, 14 So. 3d 1067, 1072 (Fla. 4th DCA 2009), the Fourth DCA supported its conclusion by noting that F.S. section 57.105 authorizes an award of attorney’s fees in derogation of common law and therefore, it must be strictly construed. Further, supporting the requirement for strict construction, the Fourth DCA referred to a Third DCA case reversing the award of attorneys’ fees under F.S. section 57.105. Specifically, in Anchor Towing, Inc. v. Fla. Dep’t of Transp., 10 So. 3d 670, 672 (Fla. 3d DCA 2009), the fee award was reversed even though a letter containing all of the information required by section 57.105(4) was sent to the opposing counsel because the litigant failed to comport with the statutory requirement that a motion be served 21 days prior to it being filed with the Court. Id. (emphasis in original).

Moreover, the court refused to accept the appellant’s argument that because the appellee had actual notice of the motion and its contents, he substantially complied with the statute. Specifically, the court held that actual notice does not allow a party to evade strict compliance with the Rule 2.516(b)(1)(E). The court further reasoned without a requirement of strict compliance, litigants would be left guessing as to what a court will deem is substantial compliance.

Even though this appears to be the rule in the Fourth DCA, the requirement for strict construction with Rule 2.516 regarding the service of a motion for attorneys’ fees under F.S. section 57.105 does not appear to be the rule anywhere else in Florida. Moreover, in the case styled Douglas v. Zachry Indus., 2015 U.S. Dist. LEXIS 150400 (M.D. Fla. 2015), the Middle District of Florida disagreed with the Fourth DCA’s holding. Specifically, the Middle District disagreed with Matte v. Caplan to the extent it incorrectly applied the electronic service requirements found in Rule 2.516 to a motion for attorneys’ fees under F.S. section 57.105 because it noted that Rule 2.516 only applies to documents “filed in any court proceeding.” Id. at 7. Therefore, because motions for attorneys’ fees pursuant to F.S. section 57.105 are not filed with the court but rather are only served on opposing counsel, the Middle District did not believe that Rule 2.516 was applicable. Accordingly, there is no need to comply with that rule in order to obtain attorneys’ fees pursuant to F.S. section 57.105.

Davis Miles Referral

While the Fourth DCA’s reasoning with regard to strictly construing a statute that is in derogation of the common law is sound, it does appear that the court may have simply misread the rule when it concluded that it applies to a motion for attorneys’ fees under F.S. section 57.105, which is clearly not a document “filed in any court proceeding.” Laurie Thompson

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