Email communications. Credit: antstang/Shutterstock.com

The Fourth District Court of Appeal discarded its own case law in a legal malpractice lawsuit, finding that in light of a new state court ruling, lawyers don't always have to adhere to the rules governing service of court documents via email.

Rule 2.516 of the Florida Rules of Judicial Administration says that filings sent by email must follow a certain format, identifying certain information in the body and subject line. But the appellate panel found that doesn't apply to safe harbor notice sent before moving for attorney fees under Florida Statute section 57.105.

Safe harbor notices act as a warning to opposing counsel of a party's intent to make a particular court filing.

Defendant North Palm Beach law firm Cohen, Norris, Wolmer, Ray, Telepman & Cohen sent a 21-day warning that it moved to collect attorney fees from its former client and their new attorneys after surviving a lawsuit over its handling of a commercial landlord-tenant dispute.

That lawsuit began in 2015, when family-owed dry cleaning company HEC Cleaning LLC accused law firm Cohen, Norris, Wolmer, Ray, Telepman & Cohen of failing to warn of eviction if they didn't comply with an order on a motion to determine rent.

The firm denied any wrongdoing, asserting that the client's own negligence got them evicted. It also filed a counterclaim, alleging the former client breached its contract by failing to pay about $17,000 in legal fees.

The case was dismissed after the plaintiffs counsel withdrew and wasn't replaced by deadline.

But when the defense moved to collect attorney fees, the plaintiff objected, pointing to a Fourth DCA decision in a 2014 case, Matte v. Caplan, which held that courts could only consider fees if a safe-harbor letter strictly followed the Florida Rules of Judicial Administration.

Plaintiff HEC Cleaning argued that the subject line in the firm's email didn't say "SERVICE OF COURT DOCUMENT" followed by the case number, while the email itself didn't include the case number, name of the parties on each side, the sender's name and phone number or the title of each document served with the email.

But the appellate panel found that didn't matter, because a 2019 Florida Supreme Court ruling in Wheaton v. Wheaton found service documents don't need to comply with rule 2.516 for proposals of settlement.

'No longer good law'

Palm Beach Circuit Judge Jeffrey Gillen had agreed to strike the motion for fees. But that was the wrong move, according to the Fourth DCA.

"Given Wheaton's reasoning, it appears Matte is no longer good law," the opinion said.

The appellate panel found that although the two cases were different, they weren't different enough.

"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 57.105  safe harbor notices are similar to pre-filing service of section 786.79 proposals for settlement."

The ruling instructed the lower court to consider the evidence and arguments around how much attorney fees the law firm can recover.

However, in a joint statement, plaintiffs counsel Lance W. Shinder and Chelsea A. Hackman of Shinder Law Group in Boca Raton and defense counsel Jonathan Berkowitz and Douglas Lambert of Cohen, Norris, Wolmer, Ray, Telepman & Cohen said, "The matter was amicably resolved without the need to conduct any evidentiary hearing(s) on the 57.105 motion."

The case has lasted five years, included 170 docket entries, and featured at least eight lawyers.

Read the ruling:

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