Email Service Delayed To September 1, 2012

From the Florida Bar:

The Florida Supreme Court issued an opinion addressing mandatory e-mail service this past Thursday, June 21, 2012.  The original opinion contained an effective date of July 1, 2012.  A corrected opinion and correction notice were issued this afternoon providing a revised effective date of September 1, 2012.

E-Mail service becomes MANDATORY on September 1, 2012 in civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases.  (E-mail service in criminal, traffic and juvenile matters is not mandatory until October 1, 2013.).

Corrected Opinion link:    http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf

Lack of Standing Is an Affirmative Defense – Wells Fargo Bank, N.A. v. Reeves

In this mortgage foreclosure case, the trial court dismissed the lender’s complaint for fraud on the court.  One aspect of the supposed “fraud” was the lender’s allegation that it had standing to sue on behalf of a valid securitized trustee.  Reciting the law on contesting standing, the appellate court stated, “Lack of standing is an affirmative defense.  Generally, this affirmative defense must be asserted in the responsive pleading and the issue is then determined upon evidence presented or the party’s inability to produce sufficient evidence of its standing.”  In this case, because the borrower had only moved to dismiss and had not yet filed an answer, the appellate court reversed on the basis that “this issue was not properly before the trial court at the pre-answer stage of the litigation.”

Wells Fargo Bank, N.A. v. Reeves, 37 Fla. L. Weekly D1381a (Fla. 1st DCA June 13, 2012)

Service by Email

Update: Email service rule delayed to September 1, 2012

On Friday, the Florida Supreme Court approved extensive changes to the Florida Rules of Civil Procedure and Florida Rules of Appellate Procedure relating to electronic service of documents. Under the changes, e-mail service of documents will become the primary method for service, and is required as of July 1, 2012 for civil, probate, small claims and family law divisions.

The opinion is found here: http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf

The opinion follows the trend of centralizing rules common to multiple areas of practice in the Florida Rules of Judicial Administration.  Many of the relevant changes are in Florida Rule of Judicial Administration 2.516.

The rules have not yet been updated, but will be as soon as I have the time.

Here are a few highlights:

Service by e-mail is deemed complete when the e-mail is sent.  Additionally, e-mail service is made by attaching a copy of the document to be served in PDF format to an e-mail. The e-mail must contain the subject line ―SERVICE OF COURT DOCUMENT‖ in all capital letters, followed by the case number of the relevant proceeding. 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 sender’s name and telephone number. The e-mail and attachments together may not exceed 5 megabytes in size; e-mails that exceed the size requirement must be divided into separate e-mails (no one of which may exceed 5 megabytes) and labeled sequentially in the subject line.

e-mail service will be mandatory for attorneys practicing in the civil, probate, small claims, and family law divisions of the trial courts, as well as in all appellate cases, when the rule amendments take effect on July 1, 2012.

Finally, we note that, pursuant to rule 2.516(b)(1), self-represented parties involved in any type of case in any Florida court, may, but are not required to, serve documents by e-mail.

 

Prevailing Party Entitled to Recover Attorneys’ Fees Paid by Third Party – Rogers v. Vulcan Manufacturing Co., Inc.

Following a suit for breach of contract, the prevailing party moved to recover attorneys’ fees pursuant to the terms of the contract, which provided:

(c) In any action to enforce any term, condition, or provision of this agreement, the prevailing party shall be entitled to recover the reasonable attorney’s fee incurred to enforce same.

The trial court denied the award of fees because it found that the entirety of the prevailing party’s attorneys’ fees were paid by a third party.  According to the trial court, this meant that the prevailing party had no fees to recover.  The 1st DCA reversed finding that the plain intent of the agreement was that the “loser pays, and the winner does not.”  According to the 1st DCA, denying the award of attorneys’ fees because the prevailing party had to have a third party cover his fees would result in an inequitable windfall for the losing party.  As such, the prevailing party was entitled to recover attorneys’ fees paid by the third party.

Rogers v. Vulcan Manuf. Co., Inc., Case No. 1D11-3927 (Fla. 1st DCA June 1, 2012).

Absolute Right to Amend Complaint Until an Answer Is Filed – Williams v. Gaffin Industrial Services

In this wrongful death case, the trial court dismissed the complaint with prejudice on the basis that the plaintiff had previously elected the State’s worker’s compensation remedy, and that this election barred the current claim.  At the hearing on the motion to dismiss, the trial court did not permit the plaintiff to amend the complaint.  On appeal, the defendant contended that the plaintiff lost the absolute right to amend because a motion to dismiss had been filed.  The appellate court reversed, holding: “Contrary to Gaffin’s contention, it had not filed a responsive pleading; it had filed a motion to dismiss. . . . Therefore, rule 1.190(a) expressly gave [plaintiff] the absolute right to amend the complaint. . . . [A] trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once.”

Williams v. Gaffin Industrial Services, 37 Fla. L. Weekly D1261a (Fla. 2d DCA May 25, 2012)