The Second District Court of Appeal has again certified conflict with the Fourth District as to whether a motion for sanctions pursuant to section 57.105, Florida Statutes, which requires the party moving for sanctions to serve the motion for sanctions but not file the motion until a “safe harbor” twenty-one-day period has run without the challenged issue being withdrawn or corrected, must comply with the email service requirements of Florida Rule of Judicial Administration 2.516. Denino v. Abbate, 2D16-2137, 43 Fla. L. Weekly D1020a (Fla. 2d DCA May 4, 2018)

In Denino, the appellee, Mrs. Abbate, sued her daughter and son-in-law claiming they fraudulently told Mrs. Abbate to sign a deed that was a “healthcare-related” document, but in actuality, it was a deed that conveyed interest to the daughter and son-in-law appellants, Michael Denino and Vincenza Abbate-Denino.  At a deposition, Abbate withdrew her claim and the appellants served Abbate’s counsel with a 57.105 motion and notice for sanctions claiming Abbate’s complaint was frivolous.

After the twenty-one-day “safe harbor” period had lapsed, Abbate sought to amend her complaint to assert a different claim of misrepresentation.  The appellant sought statutory sanctions because Abbate had not withdrawn or corrected the complaint within the safe harbor period.  Abbate claimed the appellants were not entitled to sanctions because the motion had not been served in compliance with the email requirements in Florida Rule of Judicial Administration 2.516.

Only the Fourth District had opined on the issue in Matte v. Caplan, 140 So. 3d 686 (Fla. 4th DCA 2014), in which the Fourth District concluded the requirements of rule 2.516 apply to the service of a motion made for purposes of section 57.105’s safe harbor notice.  The trial court followed Matte in denying the appellants’ motion for sanctions. The trial court noted that Abbate had had actual notice of the motion.

The Second District reversed the order denying sanctions, noting that it had rejected the reasoning in Matte in Isla Blue Dev., LLC v. Moore, 223 So. 3d 1097 (Fla. 2d DCA 2017).  The Second District followed its holding in Isla Blue, “that the email service requirements of rule 2.516(b)(1) do not apply” to motions filed pursuant to the section 57.105 safe harbor notice, and certified conflict with Matte.

Until the conflict between the districts is resolved, it is advisable to comply with the strict email requirements of Rule 2.516 when serving motions in accordance with section 57.105’s safe harbor notice to ensure sanctions will not be denied based on a failure to comply with Rule 2.516.

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