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Filing # 110401919 E-Filed 07/17/2020 12:06:42 PM
IN THE CIRCUIT COURT OF THE SIXTH
JUDICIAL CIRCUIT IN AND FOR PINELLAS
COUNTY, FLORIDA
Case No.: 2013-010978-CI-19
KEVIN DUIGNAN, Personal Representative of the
Estate of DOUGLAS CLARENCE DUIGNAN,
Plaintiff.
Vv.
R.J. REYNOLDS TOBACCO COMPANY, PHILIP
MORRIS USA, INC., LORILLARD TOBACCO
COMPANY, LORILLARD, INC., LIGGETT
GROUP, LLC, (f/k/a Liggett Company), and
VECTOR GROUP, LTD., INC., (f/k/a BROOKE
GROUP, LTD.),
Defendants.
/
PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE TO
PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS
Defendants’ response (the “Response”) to plaintiff's motion for attorneys’ fees and costs
(the “Motion”) addresses three pairs (one to each Defendant) of Proposals for Settlement from
2010, 2014, and 2019. Defendants contend that (i) the proposals from 2010 are invalid because
they were made before Kevin Duignan became the personal representative of his late father’s
estate, and (ii) the 2010 and 2014 proposals are invalid because they are (allegedly) ambiguous.
The Court should reject both arguments because (i) Florida law gives full effect to actions of a
personal representative taken before his appointment, and (ii) there was nothing ambiguous about
Plaintiffs’ earlier proposals, where Defendants could fully evaluate their effect, and buy their
peace, in full and forever, in this lawsuit without question for a tiny fraction of their exposure.
***ELECTRONICALLY FILED 07/17/2020 12:06:41 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY***
I Florida Law Gives Full Effect to the 2010 Proposal.
As a factual matter, Defendants are correct when they point out that Kevin was not yet the
personal representative of his later father’s estate when he sent the 2010 proposals for settlement.
(Response at 1-2) But this does not render actions he took before that time a “nullity,” as
Defendants claim. (Response at 3) Rather, it is a basic principle of probate administration that the
“powers of a personal representative relate back in time to give acts by the person appointed,
occurring before appointment and beneficial to the estate, the same effect as those occurring after
appointment.” § 733.601, Florida Statutes. The necessary conditions of this statutory provision are
satisfied here. First, the action of issuing the 2010 proposals for settlement were taken before Kevin
was named the personal representative. Second, the proposals were plainly beneficial to the estate,
as they would entitle plaintiff to receive fees and costs for the period from January 27, 2010
through April 30, 2014. As such, the 2010 proposals have “the same effect as those occurring after
appointment.” Jd.
Florida courts have consistently applied this statutory provision as written. For example,
where a personal representative filed a claim before their appointment, courts have held that the
later appointment related back to the original action. See Univ. of Miami v. Wilson, 948 So. 24774,
778 (Fla. 3d DCA 2006) (medical malpractice claim filed by decedent’s daughters could not be
dismissed on basis that at time of filing, daughters had not been designated as personal
representatives, as their later appointment related back to original filing) (citing Griffin v.
Workman, 73 So. 2d 844 (Fla. 1954).)!
| Griffin recognizes the “ancient doctrine” which validates the acts of a personal
representative prior to their appointment and note that “a wide variety of acts and conduct” have
been validated by subsequent qualification of an administrator, including an advancement to a
distributee, the sale of estate property, the execution of a deed, and the institution of a wrongful
death action. 73 So. 2d at 846.
Indeed, Florida courts will also apply the rule against the interests of the estate. For
example, in Roughton v. R.J. Reynolds Tobacco Co., 129 So. 3d 1145 (Fla. 1st DCA 2013), these
same Defendants successfully argued that a widow’s Eng/le progeny claim on behalf of the estate
of her deceased husband was time-barred because she had opted out during the pendency of the
class action. /d. at 1146. The opt-out notice was signed by the widow in her capacity “AS
PERSONAL REPRESENTATIVE OF THE ESTATE” of her late husband. /d. at 1147. On appeal,
the widow “argue[d] that her opt-out notice was ineffective because she had not been formally
appointed personal representative of her husband’s estate at the time she signed and filed the notice
to opt out.” /d. at 1151. Indeed, she was not formally appointed until ten years following the date
on which she sent the opt out notice which identified her as personal representative. Jd. The First
District held that section 733.601 controls—actions the widow took before her appointment had
the same effect as those occurring after. Jd. The widow argued that the act of opting out was not
“beneficial” to the estate, and so the subsequent appointment should “not relate back to this non-
beneficial and repudiated act.” /d. It was no matter; at the time the action was taken, it was intended
to benefit the estate and so the plain language of the statute gave her 1997 actions the “same effect »
as those occurring after her appointment in 2007. /d. Having successfully invoked section 733.601
to hold a widow to her actions prior to her appointment as personal representative, Defendants
have no basis to argue that actions Kevin took as personal representative prior to his formal
appointment are now “invalid.”
Defendants’ authorities do not alter this result. Defendants cite two cases on this point,
Martinez v. Ipox, 915 So. 2d 448, 449 (Fla. 2d DCA 2006); and Saia Motor Freight Line, Inc. v.
Reid, 888 So. 2d 102, 103 (Fla. 3d DCA 2004), decision quashed and remanded on other grounds,
930 So. 2d 598 (Fla. 2006). Defendants actually recite the most salient feature of Martinez but fail
to account for its significance. As Defendants note, “the mother-plaintiff made a proposal for
settlement to the defendants in her individual capacity.” (Response at 4) (emphasis added) The
Martinez decision turned on that fact: the “proposal for settlement expressly stated that it was made
by Rebeca Ipox in her individual capacity.” Martinez, 925 So. 2d at 450. As such, the proposal
could not be deemed to have been made in her representative capacity on behalf of the estate of
her deceased child. /d. In other words, the subject proposal would not have terminated the lawsuit
in which it had been served. By contrast, the 2010 proposals are both made by “Plaintiff, KEVIN
EUGENE DUIGNAN, Personal Representative of the ESTATE OF DOUGLAS CLARENCE
DUIGNAN.” In Jpox, however, the plaintiff simply failed to apprehend the fact that claims on
behalf of a decedent’s survivor can be brought only through the decedent’s estate.
Likewise, when reviewing the Reid decision, the Response notes that the subject proposal
for settlement was made by a co-personal representative “in his capacity both as a personal
representative and as an individual survivor.” (Response at 5) (emphasis added). The Third
District reversed the award of fees because it was the offer was not actually being made for the
estate. Rather, it was an individual co-representative which “sought to settle his survivor claim.”
Reid, 888 So. 2d at 103. Doing so was prohibited because the “requirement that one legal action
be filed to recover for all of the survivors cannot logically permit the individual co-personal
tepresentatives to settle the case separately.” /d. Again, the 2010 proposals for settlement were
clearly being made on behalf of the estate, and not for Kevin’s individual survivor claim. Had the
Defendants accepted those proposals (for $150,000 each), they could have resolved “[aJll issues
and claims for damages asserted” against them. (Exhibits A and B to the Motion) Instead, they
each face an eight-figure judgment, not to mention seven-figure exposure in costs and attomey’s
fees.
In short, Section 733.601 (and the decisions applying that statute) renders the proposals
enforceable, and Defendants’ authorities do not suggest otherwise.
I. There Is Nothing “Ambiguous” About the Terms of the 2010 and 2014
Proposals.
A host of satellite litigation has developed over the question whether a proposal for
settlement is “ambiguous.” The law is very clear, however, that “the ambiguities that could render
a proposal for settlement are those that preclude the recipient “from fully evaluate[ing] its terms
and conditions.” Valle v. Flory, 253 So. 3d 742, 745 n.1 (Fla. 2d DCA 2018) (quoting Carey-All
Transport, Inc. v. Newby, 989 So. 2d 1201, 1205 (Fla. 5th DCA 2003)) (emphasis added). And, as
if to stem the tide of claims similar to those made by Defendants here, the supreme court has
recently reminded us:
this Court has not required the elimination of every ambiguity—only reasonable
ambiguities:
We recognize that, given the nature of language, it may be impossible
to eliminate all ambiguity. The rule does not demand the impossible.
It merely requires that the settlement proposal be sufficiently clear
and definite to allow the offeree to make an informed decision
without needing clarification. If ambiguity within the proposal could
reasonably affect the offeree's decision, the proposal will not satisfy
the particularity requirement [of rule 1.442(c)(2)(C)-(D) ].
Id. Ultimately, “[p]roposals for settlement are intended to end judicial labor, not
create more.” Jd. (quoting Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA
2002)). Accordingly, courts are discouraged from “nitpicking” proposals for
settlement to search for ambiguity. Carey-All Transp., Inc. v. Newby, 989 So.2d
1201, 1206 (Fla. 2d DCA 2008) (citing [State Farm Mut. Auto. Ins. Co. v. Nichols,
932 So.2d 1067, 1079 (Fla. 2006)])
Allen v. Nunez, 258 So. 3d 1207, 1211 (Fla. 2018).
The 2010 and 2014 proposals clearly state that Defendants, should they reject the
proposals, will be subject to sanctions “as outlined in Rules 1.442(g) and (h) of the Florida Rules
of Civil Procedure, Fla. Stat. 768.79.” (Exhibits A, B, C and D to Motion) There is no ambiguity
as to whether or not Defendants would be liable for fees and costs under 1.442(g) and (h) and
768.79 should Plaintiff obtain a sufficient judgment. In 2010, each Defendant could have avoided
that risk in exchange for $150,000, and in 2014 for $319,500. The fact that Defendants also would
have also avoided any potential liability from “any other relief Plaintiff is entitled to as a matter of
law and which the Court deems just and proper,” does not create any ambiguity under 768.79. The
use of this “without limitation” clause inures only to the benefit of the Defendants. If anything,
Plaintiff would have given even greater peace than was needed, something which could not
possibly give rise to an ambiguity. If they accepted the proposals, they knew the litigation would
come to an end, plain and simple. Here there was not even a theoretical ambiguity.
To the extent there is any theoretical ambiguity in the language of the proposals, a
proposition with which Plaintiff does not agree, that would still not render them invalid.
Defendants have not identified any “reasonable ambiguities.” A//en, 258 So. 3d at 1211. Rather,
Defendants’ Opposition merely invites the Court to “nitpick” the proposals for settlement in a
“search for ambiguity.” /d.
The Purdo Order. The late Judge Meenu Sasser reviewed these same arguments in 2016,
and rejected them. In Purdo v. R.J. Reynolds Tobacco Co., No, 2007 CA 024173 AI, Defendants
presented the same arguments in seeking to invalidate proposals for settlement containing the same
language identified in the Response. (Defendants’ Opposition to Plaintiff's Motion for Attorneys’
Fees and Costs for Purdo (“Purdo Opposition”), Exhibit A) There, as here, Defendants argued that
the proposals contained “conflicting statements” as to the applicable Florida law. (Compare
Response at 7 with Purdo Opposition at 12-13) There, as here, Defendants argued that even if the
proposals were in “technical compliance,” the subject language rendered them “ambiguous” and
“unenforceable.” (Compare Response at 6-7 with Purdo Opposition at 14) Judge Sasser rejected
these arguments in a detailed order (Exhibit B).
As to the argument that the proposals were deficient because they did not “literally track
the phrasing used in Rule 1.442(c)(2)(B), Judge Sasser noted that the rule “requires that settlement
proposals ‘identify the claim or claims the proposal is attempting to resolve.”” (Exhibit B at 6)
(citing Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So. 3d 890, 891 (Fla. 4th DCA 2010)). “The
purpose of this rule is to allow for a proposal to be ‘sufficiently clear and definite [so as] to allow
the offeree to make an informed decision without needing clarification.’ (Purdo Order at 6-7)
(citing Nichols, 932 So. 2d at 1079. “Plainly, Plaintiff complied with the purpose of these rule with
her 2016 proposals.” (Purdo Order at 7)
As for Defendants’ argument that the failure to literally track the language in Rule
1.442(c)(2)(B), “such a result is contrary to” the Florida supreme court’s decision in Kuhajda v.
Borden Dairy Co. of Ala., LLC, 202 So. 3d 391, 395 (Fla. 2016) (Purdo Order at 7). In considering
that decision, Judge Sasser noted that the Florida supreme court “has recently indicated a trend
toward the relaxation of the strict, technical application of procedural provisions” when deciding
whether to award fees under section 768.79. (Purdo Order at 4) In Kuhajda, the court “held that
any one part of Florida Rule of Civil Procedure 1.442 need not be strictly followed in order for a
proposal for settlement under section 768.79 to be valid where the provision in Rule 1.442 ‘does
not implement a substantive requirement of section 768.79.’” (Purdo Order at 4-5) (citing
Kuhajda, 202 So. 3d at 365). Judge Sasser also rejected Defendants’ remaining “similar objection
under Rule 1.442(c)(1), which states that a proposal ‘shall identify the applicable Florida law under
which it is being made.” (Purdo Order at 7) Because the Plaintiff identified Rules 1.442(g) and
(h) along with section 768.79 as the basis upon which the proposals were being made, Plaintiff
complied with Rule 1.442(c)(1). “A holding otherwise would run counter to Kuhajda’s
requirement that a ‘procedural rule should not be strictly construed to defeat a statute it is designed
to implement.” (Purdo Order at 8) (citing Kuhajda, 202 So. 3d at 396). The proposals were thus
compliant with Rule 1.442, and the result should be the same here.”
The Florida Bar Forms. Finally, the Court should know that the portion of the proposals
which provides the basis for Defendants’ arguments is contained in a form recommended in a
publication produced by the Florida Bar. Chapter 9 of The Florida Bar’s Business Litigation in
Florida (2019) is entitled “Proposals for Settlement.” It contains a recommended “FORM FOR
PLAINTIFF’S PROPOSAL FOR SETTLEMENT TO DEFENDNANT.” (Exhibit C § 9.19, at 28-
30) That same form, according to the Bar’s treatise, “meets the rule requirements.” (/d. at 13) The
form contains the same language Plaintiff used:
10. CONSEQUENCES OF REJECTION: In the event this Proposal is
rejected, Defendant is subject to sanctions, including, but not limited to, those
as outlined in Rules 1.442(g) and (h), F.S. 768.79, and any other relief Plaintiff
is entitled to as a matter of law and which the Court deems just and proper.
(d. at 29) The Bar’s recommended form does not bind the Court but it certainly provides Plaintiff's
counsel and countless lawyers across the State with a measure of comfort that they are properly
including identical language. Plaintiffs are not aware of any case in which a trial court (and
certainly no appellate court) has invalidated the Bar-approved language. But the important point
is that there is nothing ambiguous about the proposals in this case.
Conclusion. The Court should grant Plaintiff's Motion.
? Although not reviewed in the Purdo Order, Defendants relied in both cases on the
supreme court’s decision in Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007). In Campbell, the
plaintiff's proposal for settlement failed to reference section 768.79 as the applicable statute. Jd.
at 224. The court reasoned that the “plain language of the statute provides that an offer must state
it is being made pursuant to this section.” /d. at 227. (emphasis in the opinion). There was no such
omission in this case nor other failure to comply with the statute.
8
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true copy of the foregoing has been sent by electronic mail to
Clerk of Court and to all counsel on attached list pursuant to Fla. R. of Jud. Admin. 2.516 this
17th day of July, 2020.
/s/ David J. Sales /s/
Fla. Bar No. 794732
DAVID J. SALES, P.A.
1857 Morrill Street
Sarasota, FL 34236
Telephone: 941-957-0888
david@salesappeals.com
‘oni@salesappeals.com
erviceportal@salesappeals.com
Co-Counsel for Plaintiff
ATTORNEY LIST
Attorney for Plaintiff Scott A. Chesin
Gary M. Paige MAYER BROWN LLP
GORDON & DONER, P.A. 1221 Avenue of the Americas
10650 W. State Road 84, Suite 210 New York, NY 10020
Davie, FL 33324 achesin@mayerbrown.com
gmp.pleadings@fortheinjured.com chneider@mayerbrown.com
gpaige@fortheinjured.com
rbadalati@fortheinjured.com Geoffrey J. Michael
ARNOLD & PORTER LLP
James W. Gustafson, Jr. 60 Massachusetts Avenue, NW
SEARCY DENNEY SCAROLA Washington, DC 20001
BARNHART & SHIPLEY, P.A. Geoffrey.Michael APORTER.com
517 North Calhoun Street Maura.McGonigle@apks.com
Tallahassee, FL 32301
jwg@searcylaww.com Attorney for R.J. Reynolds
gustafsonteam@searcylaw.com Tobacco Company
Troy A. Fuhrman
Attorneys for Philip Morris USA, Inc. Marie A. Borland
Daniel F. Molony HILL WARD & HENDERSON, P.A.
Terri L. Parker 101 E. Kennedy Blvd., Suite 3700
Brien V. Squires Tampa, FL 33601
Razan Axente tfuhrman@hwhlaw.com
SHOOK HARDY & BACON, L.L.P. marie.borland@hwhlaw.com
100 N. Tampa St., Suite 2900 reynolds@hwhlaw.com
Tampa, FL 33602
SHBPMAttyPinellas@shb.com John M. Walker
dmolony@shb.com Stephanie Parker
tparker@shb.com Jack Williams
bsquires@shb.com Simon P. Hansen
‘axente@shb.com JONES DAY
1420 Peachtree Street, N.E., Suite 800
Michael L. Walden Atlanta, GA 30309
Jennifer N. Blues sberesheim@jonesday.com
SHOOK HARDY & BACON, LLP eparker@jonesday.com
2555 Grand Blvd. jmwalker@jonesday.com
Kansas City, MO 64105 jmwilliams@jonesday.com
mwalden@shb.com
jblues@shb.com Charles R.A. Morse, Esq.
SHBPMAPinellas@shb.com JONES DAY
250 Vesey Street
New York, NY 10281-1047
ramorse@jonesday.com
10
Bradley W. Harrison Attorneys for Lorillard Tobacco
JONES DAY Company and Lorillard, Inc.
901 Lakeside Avenue Tina M. Schaefer
Cleveland, OH 44114-1190 David M. Woods
bwharrison( jonesday.com Hughes Hubbard & Reed LLP
2345 Grand Boulevard, Suite 2000
Kansas City, MO 64108-2663
tina.schaefer@hugheshubbard.com
david.woods hugheshubbard.com
ll
Filing # 45642900 E-Filed 08/24/2016 03:52:59 PM
IN THE CIRCUIT COURT OF THE 15th
JUDICIAL CIRCUIT IN AND FOR
PALM BEACH COUNTY, FLORIDA
CASE NO. 2007-CA-024173 AN
LINDA PURDO ENOCHS, as JUDGE SASSER
Personal Representative of the
Estate of THOMAS PURDO,
Plaintiff,
Vv.
R.J. REYNOLDS TOBACCO COMPANY,
et al.
Defendants.
/
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S
MOTION FOR ATTORNEYS’ FEES AND COSTS
Defendants R.J. Reynolds Tobacco Company (“Reynolds”) and Philip Morris USA Inc.
(“PM USA”) (collectively, “Defendants”) respectfully oppose Plaintiff's Motion for Attorneys’
Fees and Costs. Plaintiff seeks to recover her attorneys’ fees and costs based on one or more of
the six Proposals for Settlement (“Proposals”) she served on Defendants in 2013 and 2016.'! The
Court should deny Plaintiff's Motion in its entirety because each of the six Proposals fails to
comply with various mandatory requirements of section 768.79, Florida Statutes, Florida Rules
of Civil Procedure 1.442 and 1.080, and Florida Rule of Judicial Administration 2.516.
1
Defendants do not contest that, at this time, Plaintiff is entitled to recover her taxable
costs pursuant to section 57.041, Florida Statutes, Florida’s Uniform Guidelines for Taxable of
Costs, and relevant case law. Defendants reserve the right to challenge the amount of any such
costs claimed by Plaintiff and to challenge Plaintiff's entitlement to taxable costs should
Plaintiff’ s judgment be reversed on appeal.
EXHIBIT A
Specifically, although Plaintiff's 2013 and 2016 Proposals were served by email as
tequired by Rule 2.516, those Proposals are invalid and unenforceable because (a) Plaintiff failed
to properly identify the title of each document served with her service emails, as required by
Rule 2.516, and (b) the “subject line” of the service emails did not begin with “SERVICE OF
COURT DOCUMENTS”, as required by Rule 2.516. In addition, Plaintiff's 2016 Proposals are
invalid and unenforceable because (1) two of them were made by a non-party, which is not
allowed under Fla. Stat. 768.79, and Fla. R. Civ. P. 1.442, (2) all of them failed to state that they
would “resolve[] all damages that would otherwise be awarded in a final judgment...” as
required by Rule 1.442(c)(2)(B), and (3) all of them failed to properly identify the applicable
Florida law under which they were made and were ambiguous.
BACKGROUND AND RELEVANT PROCEDURAL HISTORY
A. Plaintiff’s 2013 Proposals
On November 13, 2013, “Plaintiff, LINDA PURDO as Personal Representative of the
Estate of Thomas Purdo and its survivors” served two Proposals: one on PM USA and the other
on Lorillard Tobacco Company (“Lorillard”), which was then a distinct corporate entity and a
separate Defendant in this action.? See Pl.’s 2013 Proposal for Settlement to then-Def. Lorillard
(Ex. 1); PI’s 2013 Proposal for Settlement to PM USA (Ex. 2). Plaintiff did not serve a Proposal
on Reynolds in 2013.
As required by Rule 2.516, Plaintiff served the 2013 Proposals via email. In the body of
her service emails to Lorillard and PM USA, although Plaintiff identified the title of the
document being served as “Plaintiff's Proposal for Settlement to Lorillard Tobacco Company,”
2
On June 12, 2015, Reynolds became the successor-by-merger to Lorillard, and Lorillard
ceased to exist as a corporate entity.
and “Plaintiff's Proposal for Settlement to Philip Morris USA, Inc.”, she attached two documents
to each email: (a) the relevant Proposal and (b) the relevant Notice of Service of Proposal. See
(Exs. 3 and 4).
In addition, the “Subject” line of the email to Lorillard stated: “Subject: RE: SERVICE
OF COURT DOCUMENT...” See id. (emphasis in original).* The “Subject” line of Plaintiff's
email to PM USA likewise began with “RE: SERVICE OF COURT DOCUMENT[.]” See Ex. 4.
B. Plaintiff’s 2016 Proposals
On February 16, 2016, two sets of Proposals were served on Reynolds and PM USA.
One set was served by “Plaintiff, LINDA PURDO, in her individual capacity” (hereinafter “the
Individual Proposals”). See Pl.’s 2016 Individual Proposal to Reynolds (Ex. 6); Pl.’s 2016
Individual Proposal to PM USA (Ex. 7).
In the two Individual Proposals, Plaintiff stated:
CLAIMS THE PROPOSAL ATTEMPTS TO RERESOLVE
(sic): Any and all claims brought, in her individual capacity, in the
above-styled action by the Plaintiff against the Defendant
[Reynolds or PM USA].
The other set of Proposals was served by “Plaintiff, LINDA PURDO, as Personal
Representative of the Estate of Thomas Purdo” (hereinafter “the Representative Proposals”). See
Pl.’s 2016 Representative Proposal to Reynolds (Ex. 8); Pl.’s 2016 Representative Proposal to
PM USA (Ex. 9).4
In the two Representative Proposals, Plaintiff stated:
CLAIMS THE PROPOSAL ATTEMPTS TO RERESOLVE
(sic): Any and all claims brought, on behalf of the estate of
3
On November 13, 2013, Plaintiff sent a second email purporting to serve “Plaintiff's
Notice of Service of Proposal for Settlement to Philip Morris and Lorillard Tobacco Co.” Ex. 5.
4
Linda Purdo, as “Personal Representative of the Estate of Thomas Purdo” or
“Individually,” did not serve a Proposal on Lorillard in February 2016.
Thomas Purdo, in the above-styled action by the Plaintiff against
the Defendant [Reynolds or PM USA].
In all of the 2016 Proposals, Plaintiff further stated:
CONSEQUENCES OF REJECTION: In the event this proposal
is rejected, the Defendant [Reynolds or PM USA] is subject to
sanctions, including, but not limited to, those as outlined in Rules
1.442(g) and (h) of the Florida Rules of Civil Procedure, Fla. Stat.
768.79 and any other relief Plaintiff is entitled to as a matter of law
and which the Court deems just and proper.
In her February 16, 2016, service emails, although Plaintiff identified the title of the
document being served as “Plaintiff's PFS to [RJR or PM],” she attached four documents to the
email: (a) the Notice of Service of the Representative Proposal, (b) the Representative Proposal,
(c) the Notice of Service of Individual Proposal, and (d) the Individual Proposal. See 2016 email
from Maria Marco (Ex. 10, and Ex. 11). Further, the “Subject” line of the February 16, 2016,
service email to Reynolds stated: “Subject: RE: RE: SERVICE OF COURT DOCUMENT...”
See Ex. 10. Similarly, the “Subject” line of the February 16, 2016 service email to PM USA
began with “RE: SERVICE OF COURT DOCUMENT[.]” See Ex. 11.
C. Trial
On April 26, 2016, the jury returned a Phase | verdict, finding that Linda Enochs, Lauren
Ann Kennedy, and Zachary Purdo each sustained $7,000,000.00, in total damages “for the loss
of companionship and protection and...pain and suffering as a result of Thomas Purdo’s primary
lung cancer and death.” See Verdict, Ex. 12. In Phase 1, the jury was not asked to, and did not,
award the Estate of Thomas Purdo any damages. See id. On April 27, 2016, the jury retumed its
Phase 2 verdict, finding that “the total amount of punitive damages...[to] be awarded to the
Estate of Thomas Purdo” was $6,250,000.00, from Reynolds, and $6,250,000.00, from PM USA.
See Verdict, Ex. 13.
On May 9, 2016, the Court entered Final Judgment in favor of “Plaintiff, Linda Purdo
Enochs as Personal Representative of the Estate of Thomas Purdo” and against “Defendant, R.J.
Reynolds Tobacco Company” and “Defendant, Philip Morris USA Inc.” in amounts more than
25% greater than the Proposals at issue in this Motion. See Final Judgment, Ex. 14.
On May 20, 2016, Plaintiff filed the instant Motion, seeking to recover her attorneys’ fees
and costs (a) from Reynolds based on the November 2013 Proposal to Lorillard, and the
February 2016 Proposals to Reynolds, and (b) from PM USA based on the November 2013
Proposal and the February 2016 Proposals to PM USA.
Plaintiff's motion for fees and costs based on the Proposals described above should be
denied.
ARGUMENT
A Proposal for Settlement Must Strictly Comply with Rule 1.442 and Section 768.79.
The Florida Supreme Court has repeatedly emphasized that because section 768.79 and.
Rule 1.442 are in derogation of the common law rule that parties are responsible for their own
attorneys’ fees, a Proposal must strictly comply with these provisions. See Diamond Aircraft
Indus. v. Horowitch, 107 So. 3d 362, 376 (Fla. 2013); Attorney’s Title Ins. Fund, Inc. v. Gorka,
36 So. 3d 646, 649 (Fla. 2010); Campbell v. Goldman, 959 So. 2d 223, 226 (Fla. 2007); Lamb v.
Matetzschk, 906 So. 2d 1037, 1040 (Fla. 2005); Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 218
(Fla. 2003); Willis Shaw Express, Inc. v. Hilyer Sad, Inc., 849 So. 2d 276, 278 (Fla. 2003); Pratt
v. Weiss, 161 So. 3d 1268, 1273 (Fla. 2015); Audiffred v. Arnold, 161 So. 3d 1274, 1279-80 (Fla.
2015); Cent. Motor Co. v. Shaw, 3 So. 3d 367, 369 (Fla. 3d DCA 2009).
All parts of a Proposal are subject to strict construction, including service on opposing
counsel. See Matte v. Caplan, 140 So. 3d 686, 688 (Fla. 4th DCA 2014); see also Campbell, 959
So. 2d at 227 (“Because the overall subject is in derogation of the common law, all portions must
be strictly construed.”). This strict construction requirement “is applicable to both the
substantive and procedural portions of the rule and statute.” Campbell, 959 So. 2d at 227. A
party seeking fees based on a rejected Proposal, therefore, must demonstrate absolute compliance
with the requirements of the statute and rule, even those that might otherwise seem insignificant
or technical. See Campbell, 959 So. 2d at 226-27 (reversing fee award where Proposal failed to
cite statute, even though the proposal did cite rule, and rejecting argument that the deficiency
was “mere technical violation”); Milton v. Reyes, 22 So. 3d 624, 625 (Fla. 3d DCA 2009)
(affirming trial court ruling and finding Proposal invalid for failure to include certificate of
service required by Rule 1.442(c)(2)(G) even though there was no dispute plaintiff had mailed
the Notice and it was agreed that defendant had received the mailing); F/oyd v. Smith, 160 So. 3d
567 (Fla. 1st DCA 2015) (holding that Rule of Jud. Admin. 2.516, promulgated after Milton,
does not require a certificate of service in the body of the Proposal and does establish specific
requirements for the contents of email service); Grip Development, Inc. v. Coldwell Banker
Residential Real Estate, Inc., 788 So. 2d 262, 266 (Fla. 4th DCA 2000) (reversing fee award
where plaintiff's Proposal was premature, and rejecting argument that noncompliance with rule
was an “insignificant technical violation”).
For this reason, there is no such thing as partial or substantial compliance; “either the
offer (or demand) complies with the rule and statute, or it does not.” Grip Development, 788 So.
2d at 265. Likewise, where a Proposal is technically defective, it is no defense to say that its
meaning was clear to the recipient. “[T]he supreme court has made the test strict compliance,
not the absence of ambiguity.” R.J. Reynolds Tobacco Co. v. Ward, 141 So. 3d 236, 238 (Fla.
Ist DCA 2014).
As will be demonstrated below, all six of Plaintiff's Proposals fail to strictly comply with
the relevant statute and rules. As a result, Plaintiff is not entitled to attorneys’ fees and costs
pursuant to her Proposals and Plaintiff's motion should be denied.
I. Plaintiff’s 2013 Proposals to Lorillard and PM USA Are Invalid and Unenforceable
A. Plaintiff Failed to Properly Identify the Title of Each Document Served with Her
November 13, 2013 Service Emails as Required by Rule 2.516
The Fourth District recently held, in Matte, that the email service requirements of Rule
2.516 are “mandatory,” and that an improperly served document cannot support a motion for fees
even where the served party acknowledges having received actual notice. Matte, 140 So. 3d at
689. In Matte, the defendant sought attorneys’ fees pursuant to section 57.105, Florida Statutes,
which allows for an assessment of fees as a sanction against a party pressing a frivolous claim.
Id. Section 57.105 requires the motion for fees to be served 21 days prior to being filed (to give
the adverse party time to drop or modify the alleged frivolous claim). /d. The plaintiff emailed
her motion to the defendant in Word document format and with a subject line that referenced the
case name and the attached Word document. Jd.
In opposition, the defendant argued that the plaintiff's motion for fees was unenforceable
because it did not comply with the mandatory service requirements of Rule 2.516. Jd. at 688.
Specifically, the defendant argued that service of the plaintiff's motion was defective because (1)
the motion attached to the email was in Word format instead of a PDF or link; (2) the subject line
failed to state “SERVICE OF COURT DOCUMENT” and the correct circuit court case number;
and (3) the body of the email failed to contain certain information required by Rule 2.516. Jd. at
689. There was no dispute that the defendant in Matte had actually received the motion; in fact,
defendant’s counsel acknowledged that she received and read the Word document. /d. The trial
court nevertheless agreed with the defendant and denied the plaintiff's motion for fees.
On appeal, the plaintiff argued that because the defendant received actual notice of the
motion and its contents, the plaintiff had “substantially complied with the statute.” /d. at 690.
The Fourth District flatly rejected this argument, stating that “actual notice does not allow a party
to evade strict compliance with the rule.” /d. Relying on its prior decisions requiring strict
construction of Rule 1.442, the Fourth District observed that because section 57.105 authorizes
an award of attorneys’ fees “in derogation of the common law, it must be strictly construed.” /d.
at 689 (citing Montgomery v. Larmoyeux, 14 So. 3d 1067, 1072 (Fla. 4th DCA 2009)). The court
therefore affirmed the trial court’s ruling, holding that the “e-mail service of appellant's motion
under section 57.105 did not strictly comply with Rule 2.516.” Jd. at 689 (emphasis added). The
court further held:
Just as is the case with Rule 1.442 regarding proposals for
settlement, a bright line rule requiring service in conformity
with the mandatory provisions of the rule provides certainty to
both parties as to whether attorney’s fees may be assessed if the
court finds the action or defense is frivolous. We hold that strict
compliance with Florida Rule of Judicial Administration 2.516
regarding e-mail service of pleadings is required before a court may
assess attorneys’ fees pursuant to section 57.105, Florida Statutes.
Id. at 690 (emphasis added). See also Milton, 22 So. 3d at 625 (affirming denial of attorneys’
fees under section 768.79 and Rule 1.442 where plaintiffs Proposal did not contain certificate of
service as required by Rule 1.442, even though there was no dispute plaintiff had mailed it).
Rule 2.516 requires that the body of a service email “must identify . . . the title of each
document served with that e-mail.” Fla. R. Jud. Admin. 2.516(b)(1)(E)(iii) (emphases added).
In her November 13, 2013, service emails to Lorillard and PM USA, although Plaintiff identified
the title of the document being served as “Plaintiff's Proposal for Settlement to Lorillard
Tobacco Company,” and “Plaintiff's Proposal for Settlement to Philip Morris USA, Inc.”, she
attached two documents to each email: (a) the Proposals and (b) the Notices of Service of
Proposal. See (Exs. 3 and 4). By failing to identify the title of each document she served with
her November 13, 2013 service email, Plaintiff did not strictly comply with the requirements of
Fla. R. Jud. Admin. 2.516(b)(1)(E)(iii). As a result, Plaintiff's 2013 Proposals are invalid and
unenforceable. See Matte, 140 So. 3d at 689; Campbell, 959 So. 2d at 227; Floyd, 160 So. 3d at
569.
The Honorable John Murphy III of Broward County recently reached that same
conclusion on materially similar facts in denying Plaintiff's Motion for Attorneys’ Fees and
Costs in the McCoy case, holding:
Plaintiff's February 2015 Proposals for Settlement, although served by
email, are invalid and unenforceable because Plaintiff failed to comply
with the e-mail service requirements set forth in Rule 2.516(b)(1). The
rule requires that the body of a service e-mail “must identify ... the title
of each document served with that e-mail.” Fla. R. Jud. Admin.
2.516(b)(1) (E)(iii). Although Plaintiff attached two documents (the
Notice of Service of Proposal for Settlement and the Proposal for
Settlement) to the service email, Plaintiff failed to identify the 2015
Proposals for Settlement in the bodies of his service e-mails. Instead, he
identified just the Notice of Service. As a result, Plaintiff's February
2015 Proposals for Settlement are invalid and unenforceable. See Matte,
140 So. 3d at 689; see also Campbell, 959 So. 2d at 227 (“strict
construction is applicable to both the substantive and procedural portions
of the rule and statute”); FJoyd, 160 So. 3d at 569.
See Order, In Re: Engle Progeny Cases Tobacco Litig. (McCoy), No. 08-025806 (Fla. 17th Cir.
Ct. Apr. 6, 2016). Ex. 15 (emphases added).*
B. The “Subject Line” of Plaintiff’s November 13, 2013 Service Emails Did Not
Begin with “SERVICE OF COURT DOCUMENT” as Required by Rule
2.516(b)(1)(E)(i)
Rule 2.516(b)(1)(E)(i) requires that the “Subject” line of each service email must
“begin[] with the words “SERVICE OF COURT DOCUMENT.” The “subject” line of
5
Plaintiff has appealed Judge Murphy’s Order in McCoy to the Fourth District Court of
Appeal (No. 4D16-1378).
Plaintiff's 2013 service email to Lorillard read as follows: “Subject: RE: SERVICE OF COURT
DOCUMENT...” (emphasis in original). See Ex. 3. Likewise, the “subject” line of Plaintiff's
2013 service email to PM USA read as follows: “RE: SERVICE OF COURT DOCUMENT:
Case No. 50-2007-CA-024173, Linda Purdo vs. R.J. Reynolds Tobacco Co., et al.” See Ex. 4.
By beginning the “subject” line of each service email with “RE:” rather than “SERVICE OF
COURT DOCUMENT,” Plaintiff failed to comply with Rule 2.516(b)(1)(E)(i). As a result,
Plaintiff's 2013 Proposals are unenforceable. See Matte, 140 So. 3d at 689.
In Shulman v. Reynolds, Case No.: 50 2007 CA 023832 XXXX MB (Fla. 15th Cir. Ct.),
the Honorable Edward Artau recently denied Reynolds’ motion for entitlement to attorneys’ fees,
at least in part, based on Plaintiff's argument that the “Subject” line in Reynolds’s service email
began “Shulman Robert - SERVICE OF COURT DOCUMENT” rather than “SERVICE OF
COURT DOCUMENT.” See Transcript of Shulman Hearing, pp. 16-18 and 29-31. (Ex. 16). If
that is a proper basis to deny a motion for fees and costs brought by Reynolds, then fairness and
comity dictate that Plaintiff's motion here should also be denied.
il. Plaintiff’s 2016 Proposals Are Invalid and Unenforceable
A. The 2016 Individual Proposals Are Invalid and Unenforceable Because They
Were Not Made By a Party to this Action
A proposal for settlement can only be made by “a party” to the action. Fla. R. Civ. P.
1.442(c)(2)(A); see also,§ 768.79(1), Fla. Stat. (authorizing a “plaintiff” or “defendant” to serve
the type of Proposal at issue here); 22” Century Properties, LLC v. FPH Properties, LLC 160
So. 3d 135, 142 (Fla. 4" DCA 2015) (“two conditions must be shown: (1) that the plaintiff filed
an offer of judgment that was not accepted by the defendant within thirty days, and (2) that the
final judgment was at least twenty-five percent greater that the plaintiff's offer to the
defendant.”) (emphases added); § 768.79(6)(b), Fla. Stat. (If a plaintiff serves an offer which is
10
not accepted by the defendant, and if the judgment obtained by the p/aintiff is at least 25 percent
more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including
investigative expenses, and attorney’s fees...) (emphases added). Further, this is a wrongful
death action® and a wrongful death action can only be prosecuted “by the decedent’s personal
representative, who shall recover for the benefit of the decedent’s survivors and estate all
damages...” § 768.20, Fla. Stat.
Since the Personal Representative of Thomas Purdo’s Estate is the only person that can
be the Plaintiff in this action, the Estate’s Personal Representative is the only person that can
make a Proposal under Fla. Stat. 768.79 and R. 1.442. As a result, the Individual Proposals are
nullities and cannot serve as the basis for a claim for fees and costs.
Relatedly, the server of these proposals, Linda Purdo in her individual capacity, did not
obtain a judgment in her favor -- much less a judgment in an amount that would be required to
trigger an award of fees. See § 768.79(6)(b) (allowing an award of fees if “if the judgment
obtained by the plaintiff is at least 25 percent more than the amount of the offer”). Indeed, the
only creditor in the Final Judgment is “Plaintiff, Linda Purdo Enochs as Personal Representative
of the Estate of Thomas Purdo.” For that additional reason, the Individual Proposals are
unenforceable.
B. Plaintiff’s 2016 Proposals Are Invalid and Unenforceable Because They Failed to
Include Statements Required by Rule 1.442(c)(2)(B)
Effective January 2, 2014, the Florida Supreme Court amended Rule 1.442(c)(2)(B). See
In re Amendments to the Florida Rules of Civil Procedure, 131 So. 2d 643, 648 (Fla. 2013). The
6
See Verdict Form, April 26, 2016, Q.1. “Was Thomas Purdo addicted to cigarettes
containing nicotine, and if so, was such addiction a legal cause of a primary lung cancer that
caused his death.” Ex. 12.
ll
former rule required a Proposal to “identify the claim or claims the proposal is attempting to
resolve.” Jd. at 648. The current rule, in effect when Plaintiff served each of her 2016
Proposals, mandates that “a proposal shall: (B) state that the proposal resolves all damages that
would otherwise be awarded in a final judgment in the action in which the proposal is served...”
Id. The Civil Procedure Rules Committee recommended the change “to curtail partial proposals
for settlement and to comport with section 768.79(2), Florida Statutes (2012).” Jd. at 644.
Notwithstanding the changes to Rule 1.442(c)(2)(B), none of Plaintiff's 2016 Proposals
stated “that the proposal resolves all damages that would otherwise be awarded in a final
judgment in the action in which the proposal is served...” Instead, Plaintiff's 2016 Proposals
stated:
CLAIMS THE PROPOSAL ATTEMPTS TO RERESOLVE (sic): Any and all
claims brought, [in her individual capacity or on behalf of the estate of Thomas
Purdo], in the above-styled action by the Plaintiff against the Defendant [Reynolds or
PM USA].
(See, Ex. 6-9).
Because Plaintiffs Proposals do not precisely track Rule 1.442(c)(2)(B), Plaintiff's 2016
Proposals are invalid and unenforceable. See Diamond Aircraft, 107 So. 3d at 376; Gorka, 36
So. 3d at 649; Campbell, 959 So. 2d at 226; Lamb, 906 So. 2d at 1040; Sarkis 0, 863 So. 2d at
218; Willis Shaw, 849 So. 2d at 278; Pratt, 161 So. 3d at 1273; Audiffred 161 So. 3d at 1279-80;
Cent. Motor Co., 3 So. 3d at 369.
C. Plaintiff’s 2016 Proposals are Invalid and Unenforceable Because They Failed to
Specifically Identify the Applicable Florida Law Under Which They Were Made
and Were Ambiguous
In all four of the 2016 Proposals, Plaintiff made the following conflicting statements as to
the applicable Florida law under which she made the Proposals:
12
1. This Proposal for Settlement is made pursuant to Rule 1.442 of the Florida
Rules of Civil Procedure and Florida Statute 768.79.
12. CONSEQUENCES OF REJECTION: In the event this proposal is
rejected, the Defendant [Reynolds or PM USA] is subject to sanctions,
including, but not limited to, those as outlined in Rules 1.442(g) and (h) of
the Florida Rules of Civil Procedure, Fla. Stat. 768.79 and any other relief
Plaintiff is entitled to as a matter of law and which the Court deems just and
proper.
(See, Ex. 6-9). (emphasis added).
These conflicting statements rendered Plaintiff's 2016 Proposals non-compliant with the
requirement in Rule 1.442(c)(1) that “[a] proposal shall . . . identify the applicable Florida law
under which it is being made.” Jd. (emphasis added). Instead of properly identifying “the
applicable Florida law” as limited to section 768.79 and Rule 1.442, the Proposals here also
referenced other, unspecified potential sources of sanctions to which she might be entitled “as a
matter of law...”.
In Campbell, the Florida Supreme Court addressed the requirement that a Proposal
properly state the authority under which it was being made. The proposal in question in
Campbell referred to Rule 1.442, but did not refer to section 768.79. See 959 So. 2d at 224.
Even though there was only one statute pursuant to which the proposal could have been made
and there was admittedly “no lack of clarity, uncertainty, or confusion in [the] offer,” see id. at
227 (Pariente, J., concurring), the Court rejected the contention that this omission was “a mere
technical violation.” Jd. Instead, the Court reversed the fees award and held that because “the
overall subject is in derogation of the common law,” the provisions requiring a party to
specifically identify the relevant law in their proposals must be “strictly construed.” /d. at 227.
Here, Plaintiff failed to clearly identify the applicable Florida law under which she made
her 2016 Proposals in violation of the Florida Supreme Court’s holding in Campbell. While
Preview
Filing # 110401919 E-Filed 07/17/2020 12:06:42 PM IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT IN AND FOR PINELLAS COUNTY, FLORIDA Case No.: 2013-010978-CI-19 KEVIN DUIGNAN, Personal Representative of the Estate of DOUGLAS CLARENCE DUIGNAN, Plaintiff. Vv. R.J. REYNOLDS TOBACCO COMPANY, PHILIP MORRIS USA, INC., LORILLARD TOBACCO COMPANY, LORILLARD, INC., LIGGETT GROUP, LLC, (f/k/a Liggett Company), and VECTOR GROUP, LTD., INC., (f/k/a BROOKE GROUP, LTD.), Defendants. / PLAINTIFF’S REPLY TO DEFENDANTS’ RESPONSE TO PLAINTIFF’S MOTION FOR ATTORNEY’S FEES AND COSTS Defendants’ response (the “Response”) to plaintiff's motion for attorneys’ fees and costs (the “Motion”) addresses three pairs (one to each Defendant) of Proposals for Settlement from 2010, 2014, and 2019. Defendants contend that (i) the proposals from 2010 are invalid because they were made before Kevin Duignan became the personal representative of his late father’s estate, and (ii) the 2010 and 2014 proposals are invalid because they are (allegedly) ambiguous. The Court should reject both arguments because (i) Florida law gives full effect to actions of a personal representative taken before his appointment, and (ii) there was nothing ambiguous about Plaintiffs’ earlier proposals, where Defendants could fully evaluate their effect, and buy their peace, in full and forever, in this lawsuit without question for a tiny fraction of their exposure. ***ELECTRONICALLY FILED 07/17/2020 12:06:41 PM: KEN BURKE, CLERK OF THE CIRCUIT COURT, PINELLAS COUNTY*** I Florida Law Gives Full Effect to the 2010 Proposal. As a factual matter, Defendants are correct when they point out that Kevin was not yet the personal representative of his later father’s estate when he sent the 2010 proposals for settlement. (Response at 1-2) But this does not render actions he took before that time a “nullity,” as Defendants claim. (Response at 3) Rather, it is a basic principle of probate administration that the “powers of a personal representative relate back in time to give acts by the person appointed, occurring before appointment and beneficial to the estate, the same effect as those occurring after appointment.” § 733.601, Florida Statutes. The necessary conditions of this statutory provision are satisfied here. First, the action of issuing the 2010 proposals for settlement were taken before Kevin was named the personal representative. Second, the proposals were plainly beneficial to the estate, as they would entitle plaintiff to receive fees and costs for the period from January 27, 2010 through April 30, 2014. As such, the 2010 proposals have “the same effect as those occurring after appointment.” Jd. Florida courts have consistently applied this statutory provision as written. For example, where a personal representative filed a claim before their appointment, courts have held that the later appointment related back to the original action. See Univ. of Miami v. Wilson, 948 So. 24774, 778 (Fla. 3d DCA 2006) (medical malpractice claim filed by decedent’s daughters could not be dismissed on basis that at time of filing, daughters had not been designated as personal representatives, as their later appointment related back to original filing) (citing Griffin v. Workman, 73 So. 2d 844 (Fla. 1954).)! | Griffin recognizes the “ancient doctrine” which validates the acts of a personal representative prior to their appointment and note that “a wide variety of acts and conduct” have been validated by subsequent qualification of an administrator, including an advancement to a distributee, the sale of estate property, the execution of a deed, and the institution of a wrongful death action. 73 So. 2d at 846. Indeed, Florida courts will also apply the rule against the interests of the estate. For example, in Roughton v. R.J. Reynolds Tobacco Co., 129 So. 3d 1145 (Fla. 1st DCA 2013), these same Defendants successfully argued that a widow’s Eng/le progeny claim on behalf of the estate of her deceased husband was time-barred because she had opted out during the pendency of the class action. /d. at 1146. The opt-out notice was signed by the widow in her capacity “AS PERSONAL REPRESENTATIVE OF THE ESTATE” of her late husband. /d. at 1147. On appeal, the widow “argue[d] that her opt-out notice was ineffective because she had not been formally appointed personal representative of her husband’s estate at the time she signed and filed the notice to opt out.” /d. at 1151. Indeed, she was not formally appointed until ten years following the date on which she sent the opt out notice which identified her as personal representative. Jd. The First District held that section 733.601 controls—actions the widow took before her appointment had the same effect as those occurring after. Jd. The widow argued that the act of opting out was not “beneficial” to the estate, and so the subsequent appointment should “not relate back to this non- beneficial and repudiated act.” /d. It was no matter; at the time the action was taken, it was intended to benefit the estate and so the plain language of the statute gave her 1997 actions the “same effect » as those occurring after her appointment in 2007. /d. Having successfully invoked section 733.601 to hold a widow to her actions prior to her appointment as personal representative, Defendants have no basis to argue that actions Kevin took as personal representative prior to his formal appointment are now “invalid.” Defendants’ authorities do not alter this result. Defendants cite two cases on this point, Martinez v. Ipox, 915 So. 2d 448, 449 (Fla. 2d DCA 2006); and Saia Motor Freight Line, Inc. v. Reid, 888 So. 2d 102, 103 (Fla. 3d DCA 2004), decision quashed and remanded on other grounds, 930 So. 2d 598 (Fla. 2006). Defendants actually recite the most salient feature of Martinez but fail to account for its significance. As Defendants note, “the mother-plaintiff made a proposal for settlement to the defendants in her individual capacity.” (Response at 4) (emphasis added) The Martinez decision turned on that fact: the “proposal for settlement expressly stated that it was made by Rebeca Ipox in her individual capacity.” Martinez, 925 So. 2d at 450. As such, the proposal could not be deemed to have been made in her representative capacity on behalf of the estate of her deceased child. /d. In other words, the subject proposal would not have terminated the lawsuit in which it had been served. By contrast, the 2010 proposals are both made by “Plaintiff, KEVIN EUGENE DUIGNAN, Personal Representative of the ESTATE OF DOUGLAS CLARENCE DUIGNAN.” In Jpox, however, the plaintiff simply failed to apprehend the fact that claims on behalf of a decedent’s survivor can be brought only through the decedent’s estate. Likewise, when reviewing the Reid decision, the Response notes that the subject proposal for settlement was made by a co-personal representative “in his capacity both as a personal representative and as an individual survivor.” (Response at 5) (emphasis added). The Third District reversed the award of fees because it was the offer was not actually being made for the estate. Rather, it was an individual co-representative which “sought to settle his survivor claim.” Reid, 888 So. 2d at 103. Doing so was prohibited because the “requirement that one legal action be filed to recover for all of the survivors cannot logically permit the individual co-personal tepresentatives to settle the case separately.” /d. Again, the 2010 proposals for settlement were clearly being made on behalf of the estate, and not for Kevin’s individual survivor claim. Had the Defendants accepted those proposals (for $150,000 each), they could have resolved “[aJll issues and claims for damages asserted” against them. (Exhibits A and B to the Motion) Instead, they each face an eight-figure judgment, not to mention seven-figure exposure in costs and attomey’s fees. In short, Section 733.601 (and the decisions applying that statute) renders the proposals enforceable, and Defendants’ authorities do not suggest otherwise. I. There Is Nothing “Ambiguous” About the Terms of the 2010 and 2014 Proposals. A host of satellite litigation has developed over the question whether a proposal for settlement is “ambiguous.” The law is very clear, however, that “the ambiguities that could render a proposal for settlement are those that preclude the recipient “from fully evaluate[ing] its terms and conditions.” Valle v. Flory, 253 So. 3d 742, 745 n.1 (Fla. 2d DCA 2018) (quoting Carey-All Transport, Inc. v. Newby, 989 So. 2d 1201, 1205 (Fla. 5th DCA 2003)) (emphasis added). And, as if to stem the tide of claims similar to those made by Defendants here, the supreme court has recently reminded us: this Court has not required the elimination of every ambiguity—only reasonable ambiguities: We recognize that, given the nature of language, it may be impossible to eliminate all ambiguity. The rule does not demand the impossible. It merely requires that the settlement proposal be sufficiently clear and definite to allow the offeree to make an informed decision without needing clarification. If ambiguity within the proposal could reasonably affect the offeree's decision, the proposal will not satisfy the particularity requirement [of rule 1.442(c)(2)(C)-(D) ]. Id. Ultimately, “[p]roposals for settlement are intended to end judicial labor, not create more.” Jd. (quoting Lucas v. Calhoun, 813 So.2d 971, 973 (Fla. 2d DCA 2002)). Accordingly, courts are discouraged from “nitpicking” proposals for settlement to search for ambiguity. Carey-All Transp., Inc. v. Newby, 989 So.2d 1201, 1206 (Fla. 2d DCA 2008) (citing [State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1079 (Fla. 2006)]) Allen v. Nunez, 258 So. 3d 1207, 1211 (Fla. 2018). The 2010 and 2014 proposals clearly state that Defendants, should they reject the proposals, will be subject to sanctions “as outlined in Rules 1.442(g) and (h) of the Florida Rules of Civil Procedure, Fla. Stat. 768.79.” (Exhibits A, B, C and D to Motion) There is no ambiguity as to whether or not Defendants would be liable for fees and costs under 1.442(g) and (h) and 768.79 should Plaintiff obtain a sufficient judgment. In 2010, each Defendant could have avoided that risk in exchange for $150,000, and in 2014 for $319,500. The fact that Defendants also would have also avoided any potential liability from “any other relief Plaintiff is entitled to as a matter of law and which the Court deems just and proper,” does not create any ambiguity under 768.79. The use of this “without limitation” clause inures only to the benefit of the Defendants. If anything, Plaintiff would have given even greater peace than was needed, something which could not possibly give rise to an ambiguity. If they accepted the proposals, they knew the litigation would come to an end, plain and simple. Here there was not even a theoretical ambiguity. To the extent there is any theoretical ambiguity in the language of the proposals, a proposition with which Plaintiff does not agree, that would still not render them invalid. Defendants have not identified any “reasonable ambiguities.” A//en, 258 So. 3d at 1211. Rather, Defendants’ Opposition merely invites the Court to “nitpick” the proposals for settlement in a “search for ambiguity.” /d. The Purdo Order. The late Judge Meenu Sasser reviewed these same arguments in 2016, and rejected them. In Purdo v. R.J. Reynolds Tobacco Co., No, 2007 CA 024173 AI, Defendants presented the same arguments in seeking to invalidate proposals for settlement containing the same language identified in the Response. (Defendants’ Opposition to Plaintiff's Motion for Attorneys’ Fees and Costs for Purdo (“Purdo Opposition”), Exhibit A) There, as here, Defendants argued that the proposals contained “conflicting statements” as to the applicable Florida law. (Compare Response at 7 with Purdo Opposition at 12-13) There, as here, Defendants argued that even if the proposals were in “technical compliance,” the subject language rendered them “ambiguous” and “unenforceable.” (Compare Response at 6-7 with Purdo Opposition at 14) Judge Sasser rejected these arguments in a detailed order (Exhibit B). As to the argument that the proposals were deficient because they did not “literally track the phrasing used in Rule 1.442(c)(2)(B), Judge Sasser noted that the rule “requires that settlement proposals ‘identify the claim or claims the proposal is attempting to resolve.”” (Exhibit B at 6) (citing Nationwide Mut. Fire Ins. Co. v. Pollinger, 42 So. 3d 890, 891 (Fla. 4th DCA 2010)). “The purpose of this rule is to allow for a proposal to be ‘sufficiently clear and definite [so as] to allow the offeree to make an informed decision without needing clarification.’ (Purdo Order at 6-7) (citing Nichols, 932 So. 2d at 1079. “Plainly, Plaintiff complied with the purpose of these rule with her 2016 proposals.” (Purdo Order at 7) As for Defendants’ argument that the failure to literally track the language in Rule 1.442(c)(2)(B), “such a result is contrary to” the Florida supreme court’s decision in Kuhajda v. Borden Dairy Co. of Ala., LLC, 202 So. 3d 391, 395 (Fla. 2016) (Purdo Order at 7). In considering that decision, Judge Sasser noted that the Florida supreme court “has recently indicated a trend toward the relaxation of the strict, technical application of procedural provisions” when deciding whether to award fees under section 768.79. (Purdo Order at 4) In Kuhajda, the court “held that any one part of Florida Rule of Civil Procedure 1.442 need not be strictly followed in order for a proposal for settlement under section 768.79 to be valid where the provision in Rule 1.442 ‘does not implement a substantive requirement of section 768.79.’” (Purdo Order at 4-5) (citing Kuhajda, 202 So. 3d at 365). Judge Sasser also rejected Defendants’ remaining “similar objection under Rule 1.442(c)(1), which states that a proposal ‘shall identify the applicable Florida law under which it is being made.” (Purdo Order at 7) Because the Plaintiff identified Rules 1.442(g) and (h) along with section 768.79 as the basis upon which the proposals were being made, Plaintiff complied with Rule 1.442(c)(1). “A holding otherwise would run counter to Kuhajda’s requirement that a ‘procedural rule should not be strictly construed to defeat a statute it is designed to implement.” (Purdo Order at 8) (citing Kuhajda, 202 So. 3d at 396). The proposals were thus compliant with Rule 1.442, and the result should be the same here.” The Florida Bar Forms. Finally, the Court should know that the portion of the proposals which provides the basis for Defendants’ arguments is contained in a form recommended in a publication produced by the Florida Bar. Chapter 9 of The Florida Bar’s Business Litigation in Florida (2019) is entitled “Proposals for Settlement.” It contains a recommended “FORM FOR PLAINTIFF’S PROPOSAL FOR SETTLEMENT TO DEFENDNANT.” (Exhibit C § 9.19, at 28- 30) That same form, according to the Bar’s treatise, “meets the rule requirements.” (/d. at 13) The form contains the same language Plaintiff used: 10. CONSEQUENCES OF REJECTION: In the event this Proposal is rejected, Defendant is subject to sanctions, including, but not limited to, those as outlined in Rules 1.442(g) and (h), F.S. 768.79, and any other relief Plaintiff is entitled to as a matter of law and which the Court deems just and proper. (d. at 29) The Bar’s recommended form does not bind the Court but it certainly provides Plaintiff's counsel and countless lawyers across the State with a measure of comfort that they are properly including identical language. Plaintiffs are not aware of any case in which a trial court (and certainly no appellate court) has invalidated the Bar-approved language. But the important point is that there is nothing ambiguous about the proposals in this case. Conclusion. The Court should grant Plaintiff's Motion. ? Although not reviewed in the Purdo Order, Defendants relied in both cases on the supreme court’s decision in Campbell v. Goldman, 959 So. 2d 223 (Fla. 2007). In Campbell, the plaintiff's proposal for settlement failed to reference section 768.79 as the applicable statute. Jd. at 224. The court reasoned that the “plain language of the statute provides that an offer must state it is being made pursuant to this section.” /d. at 227. (emphasis in the opinion). There was no such omission in this case nor other failure to comply with the statute. 8 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true copy of the foregoing has been sent by electronic mail to Clerk of Court and to all counsel on attached list pursuant to Fla. R. of Jud. Admin. 2.516 this 17th day of July, 2020. /s/ David J. Sales /s/ Fla. Bar No. 794732 DAVID J. SALES, P.A. 1857 Morrill Street Sarasota, FL 34236 Telephone: 941-957-0888 david@salesappeals.com ‘oni@salesappeals.com erviceportal@salesappeals.com Co-Counsel for Plaintiff ATTORNEY LIST Attorney for Plaintiff Scott A. Chesin Gary M. Paige MAYER BROWN LLP GORDON & DONER, P.A. 1221 Avenue of the Americas 10650 W. State Road 84, Suite 210 New York, NY 10020 Davie, FL 33324 achesin@mayerbrown.com gmp.pleadings@fortheinjured.com chneider@mayerbrown.com gpaige@fortheinjured.com rbadalati@fortheinjured.com Geoffrey J. Michael ARNOLD & PORTER LLP James W. Gustafson, Jr. 60 Massachusetts Avenue, NW SEARCY DENNEY SCAROLA Washington, DC 20001 BARNHART & SHIPLEY, P.A. Geoffrey.Michael APORTER.com 517 North Calhoun Street Maura.McGonigle@apks.com Tallahassee, FL 32301 jwg@searcylaww.com Attorney for R.J. Reynolds gustafsonteam@searcylaw.com Tobacco Company Troy A. Fuhrman Attorneys for Philip Morris USA, Inc. Marie A. Borland Daniel F. Molony HILL WARD & HENDERSON, P.A. Terri L. Parker 101 E. Kennedy Blvd., Suite 3700 Brien V. Squires Tampa, FL 33601 Razan Axente tfuhrman@hwhlaw.com SHOOK HARDY & BACON, L.L.P. marie.borland@hwhlaw.com 100 N. Tampa St., Suite 2900 reynolds@hwhlaw.com Tampa, FL 33602 SHBPMAttyPinellas@shb.com John M. Walker dmolony@shb.com Stephanie Parker tparker@shb.com Jack Williams bsquires@shb.com Simon P. Hansen ‘axente@shb.com JONES DAY 1420 Peachtree Street, N.E., Suite 800 Michael L. Walden Atlanta, GA 30309 Jennifer N. Blues sberesheim@jonesday.com SHOOK HARDY & BACON, LLP eparker@jonesday.com 2555 Grand Blvd. jmwalker@jonesday.com Kansas City, MO 64105 jmwilliams@jonesday.com mwalden@shb.com jblues@shb.com Charles R.A. Morse, Esq. SHBPMAPinellas@shb.com JONES DAY 250 Vesey Street New York, NY 10281-1047 ramorse@jonesday.com 10 Bradley W. Harrison Attorneys for Lorillard Tobacco JONES DAY Company and Lorillard, Inc. 901 Lakeside Avenue Tina M. Schaefer Cleveland, OH 44114-1190 David M. Woods bwharrison( jonesday.com Hughes Hubbard & Reed LLP 2345 Grand Boulevard, Suite 2000 Kansas City, MO 64108-2663 tina.schaefer@hugheshubbard.com david.woods hugheshubbard.com ll Filing # 45642900 E-Filed 08/24/2016 03:52:59 PM IN THE CIRCUIT COURT OF THE 15th JUDICIAL CIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA CASE NO. 2007-CA-024173 AN LINDA PURDO ENOCHS, as JUDGE SASSER Personal Representative of the Estate of THOMAS PURDO, Plaintiff, Vv. R.J. REYNOLDS TOBACCO COMPANY, et al. Defendants. / DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR ATTORNEYS’ FEES AND COSTS Defendants R.J. Reynolds Tobacco Company (“Reynolds”) and Philip Morris USA Inc. (“PM USA”) (collectively, “Defendants”) respectfully oppose Plaintiff's Motion for Attorneys’ Fees and Costs. Plaintiff seeks to recover her attorneys’ fees and costs based on one or more of the six Proposals for Settlement (“Proposals”) she served on Defendants in 2013 and 2016.'! The Court should deny Plaintiff's Motion in its entirety because each of the six Proposals fails to comply with various mandatory requirements of section 768.79, Florida Statutes, Florida Rules of Civil Procedure 1.442 and 1.080, and Florida Rule of Judicial Administration 2.516. 1 Defendants do not contest that, at this time, Plaintiff is entitled to recover her taxable costs pursuant to section 57.041, Florida Statutes, Florida’s Uniform Guidelines for Taxable of Costs, and relevant case law. Defendants reserve the right to challenge the amount of any such costs claimed by Plaintiff and to challenge Plaintiff's entitlement to taxable costs should Plaintiff’ s judgment be reversed on appeal. EXHIBIT A Specifically, although Plaintiff's 2013 and 2016 Proposals were served by email as tequired by Rule 2.516, those Proposals are invalid and unenforceable because (a) Plaintiff failed to properly identify the title of each document served with her service emails, as required by Rule 2.516, and (b) the “subject line” of the service emails did not begin with “SERVICE OF COURT DOCUMENTS”, as required by Rule 2.516. In addition, Plaintiff's 2016 Proposals are invalid and unenforceable because (1) two of them were made by a non-party, which is not allowed under Fla. Stat. 768.79, and Fla. R. Civ. P. 1.442, (2) all of them failed to state that they would “resolve[] all damages that would otherwise be awarded in a final judgment...” as required by Rule 1.442(c)(2)(B), and (3) all of them failed to properly identify the applicable Florida law under which they were made and were ambiguous. BACKGROUND AND RELEVANT PROCEDURAL HISTORY A. Plaintiff’s 2013 Proposals On November 13, 2013, “Plaintiff, LINDA PURDO as Personal Representative of the Estate of Thomas Purdo and its survivors” served two Proposals: one on PM USA and the other on Lorillard Tobacco Company (“Lorillard”), which was then a distinct corporate entity and a separate Defendant in this action.? See Pl.’s 2013 Proposal for Settlement to then-Def. Lorillard (Ex. 1); PI’s 2013 Proposal for Settlement to PM USA (Ex. 2). Plaintiff did not serve a Proposal on Reynolds in 2013. As required by Rule 2.516, Plaintiff served the 2013 Proposals via email. In the body of her service emails to Lorillard and PM USA, although Plaintiff identified the title of the document being served as “Plaintiff's Proposal for Settlement to Lorillard Tobacco Company,” 2 On June 12, 2015, Reynolds became the successor-by-merger to Lorillard, and Lorillard ceased to exist as a corporate entity. and “Plaintiff's Proposal for Settlement to Philip Morris USA, Inc.”, she attached two documents to each email: (a) the relevant Proposal and (b) the relevant Notice of Service of Proposal. See (Exs. 3 and 4). In addition, the “Subject” line of the email to Lorillard stated: “Subject: RE: SERVICE OF COURT DOCUMENT...” See id. (emphasis in original).* The “Subject” line of Plaintiff's email to PM USA likewise began with “RE: SERVICE OF COURT DOCUMENT[.]” See Ex. 4. B. Plaintiff’s 2016 Proposals On February 16, 2016, two sets of Proposals were served on Reynolds and PM USA. One set was served by “Plaintiff, LINDA PURDO, in her individual capacity” (hereinafter “the Individual Proposals”). See Pl.’s 2016 Individual Proposal to Reynolds (Ex. 6); Pl.’s 2016 Individual Proposal to PM USA (Ex. 7). In the two Individual Proposals, Plaintiff stated: CLAIMS THE PROPOSAL ATTEMPTS TO RERESOLVE (sic): Any and all claims brought, in her individual capacity, in the above-styled action by the Plaintiff against the Defendant [Reynolds or PM USA]. The other set of Proposals was served by “Plaintiff, LINDA PURDO, as Personal Representative of the Estate of Thomas Purdo” (hereinafter “the Representative Proposals”). See Pl.’s 2016 Representative Proposal to Reynolds (Ex. 8); Pl.’s 2016 Representative Proposal to PM USA (Ex. 9).4 In the two Representative Proposals, Plaintiff stated: CLAIMS THE PROPOSAL ATTEMPTS TO RERESOLVE (sic): Any and all claims brought, on behalf of the estate of 3 On November 13, 2013, Plaintiff sent a second email purporting to serve “Plaintiff's Notice of Service of Proposal for Settlement to Philip Morris and Lorillard Tobacco Co.” Ex. 5. 4 Linda Purdo, as “Personal Representative of the Estate of Thomas Purdo” or “Individually,” did not serve a Proposal on Lorillard in February 2016. Thomas Purdo, in the above-styled action by the Plaintiff against the Defendant [Reynolds or PM USA]. In all of the 2016 Proposals, Plaintiff further stated: CONSEQUENCES OF REJECTION: In the event this proposal is rejected, the Defendant [Reynolds or PM USA] is subject to sanctions, including, but not limited to, those as outlined in Rules 1.442(g) and (h) of the Florida Rules of Civil Procedure, Fla. Stat. 768.79 and any other relief Plaintiff is entitled to as a matter of law and which the Court deems just and proper. In her February 16, 2016, service emails, although Plaintiff identified the title of the document being served as “Plaintiff's PFS to [RJR or PM],” she attached four documents to the email: (a) the Notice of Service of the Representative Proposal, (b) the Representative Proposal, (c) the Notice of Service of Individual Proposal, and (d) the Individual Proposal. See 2016 email from Maria Marco (Ex. 10, and Ex. 11). Further, the “Subject” line of the February 16, 2016, service email to Reynolds stated: “Subject: RE: RE: SERVICE OF COURT DOCUMENT...” See Ex. 10. Similarly, the “Subject” line of the February 16, 2016 service email to PM USA began with “RE: SERVICE OF COURT DOCUMENT[.]” See Ex. 11. C. Trial On April 26, 2016, the jury returned a Phase | verdict, finding that Linda Enochs, Lauren Ann Kennedy, and Zachary Purdo each sustained $7,000,000.00, in total damages “for the loss of companionship and protection and...pain and suffering as a result of Thomas Purdo’s primary lung cancer and death.” See Verdict, Ex. 12. In Phase 1, the jury was not asked to, and did not, award the Estate of Thomas Purdo any damages. See id. On April 27, 2016, the jury retumed its Phase 2 verdict, finding that “the total amount of punitive damages...[to] be awarded to the Estate of Thomas Purdo” was $6,250,000.00, from Reynolds, and $6,250,000.00, from PM USA. See Verdict, Ex. 13. On May 9, 2016, the Court entered Final Judgment in favor of “Plaintiff, Linda Purdo Enochs as Personal Representative of the Estate of Thomas Purdo” and against “Defendant, R.J. Reynolds Tobacco Company” and “Defendant, Philip Morris USA Inc.” in amounts more than 25% greater than the Proposals at issue in this Motion. See Final Judgment, Ex. 14. On May 20, 2016, Plaintiff filed the instant Motion, seeking to recover her attorneys’ fees and costs (a) from Reynolds based on the November 2013 Proposal to Lorillard, and the February 2016 Proposals to Reynolds, and (b) from PM USA based on the November 2013 Proposal and the February 2016 Proposals to PM USA. Plaintiff's motion for fees and costs based on the Proposals described above should be denied. ARGUMENT A Proposal for Settlement Must Strictly Comply with Rule 1.442 and Section 768.79. The Florida Supreme Court has repeatedly emphasized that because section 768.79 and. Rule 1.442 are in derogation of the common law rule that parties are responsible for their own attorneys’ fees, a Proposal must strictly comply with these provisions. See Diamond Aircraft Indus. v. Horowitch, 107 So. 3d 362, 376 (Fla. 2013); Attorney’s Title Ins. Fund, Inc. v. Gorka, 36 So. 3d 646, 649 (Fla. 2010); Campbell v. Goldman, 959 So. 2d 223, 226 (Fla. 2007); Lamb v. Matetzschk, 906 So. 2d 1037, 1040 (Fla. 2005); Sarkis v. Allstate Ins. Co., 863 So. 2d 210, 218 (Fla. 2003); Willis Shaw Express, Inc. v. Hilyer Sad, Inc., 849 So. 2d 276, 278 (Fla. 2003); Pratt v. Weiss, 161 So. 3d 1268, 1273 (Fla. 2015); Audiffred v. Arnold, 161 So. 3d 1274, 1279-80 (Fla. 2015); Cent. Motor Co. v. Shaw, 3 So. 3d 367, 369 (Fla. 3d DCA 2009). All parts of a Proposal are subject to strict construction, including service on opposing counsel. See Matte v. Caplan, 140 So. 3d 686, 688 (Fla. 4th DCA 2014); see also Campbell, 959 So. 2d at 227 (“Because the overall subject is in derogation of the common law, all portions must be strictly construed.”). This strict construction requirement “is applicable to both the substantive and procedural portions of the rule and statute.” Campbell, 959 So. 2d at 227. A party seeking fees based on a rejected Proposal, therefore, must demonstrate absolute compliance with the requirements of the statute and rule, even those that might otherwise seem insignificant or technical. See Campbell, 959 So. 2d at 226-27 (reversing fee award where Proposal failed to cite statute, even though the proposal did cite rule, and rejecting argument that the deficiency was “mere technical violation”); Milton v. Reyes, 22 So. 3d 624, 625 (Fla. 3d DCA 2009) (affirming trial court ruling and finding Proposal invalid for failure to include certificate of service required by Rule 1.442(c)(2)(G) even though there was no dispute plaintiff had mailed the Notice and it was agreed that defendant had received the mailing); F/oyd v. Smith, 160 So. 3d 567 (Fla. 1st DCA 2015) (holding that Rule of Jud. Admin. 2.516, promulgated after Milton, does not require a certificate of service in the body of the Proposal and does establish specific requirements for the contents of email service); Grip Development, Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So. 2d 262, 266 (Fla. 4th DCA 2000) (reversing fee award where plaintiff's Proposal was premature, and rejecting argument that noncompliance with rule was an “insignificant technical violation”). For this reason, there is no such thing as partial or substantial compliance; “either the offer (or demand) complies with the rule and statute, or it does not.” Grip Development, 788 So. 2d at 265. Likewise, where a Proposal is technically defective, it is no defense to say that its meaning was clear to the recipient. “[T]he supreme court has made the test strict compliance, not the absence of ambiguity.” R.J. Reynolds Tobacco Co. v. Ward, 141 So. 3d 236, 238 (Fla. Ist DCA 2014). As will be demonstrated below, all six of Plaintiff's Proposals fail to strictly comply with the relevant statute and rules. As a result, Plaintiff is not entitled to attorneys’ fees and costs pursuant to her Proposals and Plaintiff's motion should be denied. I. Plaintiff’s 2013 Proposals to Lorillard and PM USA Are Invalid and Unenforceable A. Plaintiff Failed to Properly Identify the Title of Each Document Served with Her November 13, 2013 Service Emails as Required by Rule 2.516 The Fourth District recently held, in Matte, that the email service requirements of Rule 2.516 are “mandatory,” and that an improperly served document cannot support a motion for fees even where the served party acknowledges having received actual notice. Matte, 140 So. 3d at 689. In Matte, the defendant sought attorneys’ fees pursuant to section 57.105, Florida Statutes, which allows for an assessment of fees as a sanction against a party pressing a frivolous claim. Id. Section 57.105 requires the motion for fees to be served 21 days prior to being filed (to give the adverse party time to drop or modify the alleged frivolous claim). /d. The plaintiff emailed her motion to the defendant in Word document format and with a subject line that referenced the case name and the attached Word document. Jd. In opposition, the defendant argued that the plaintiff's motion for fees was unenforceable because it did not comply with the mandatory service requirements of Rule 2.516. Jd. at 688. Specifically, the defendant argued that service of the plaintiff's motion was defective because (1) the motion attached to the email was in Word format instead of a PDF or link; (2) the subject line failed to state “SERVICE OF COURT DOCUMENT” and the correct circuit court case number; and (3) the body of the email failed to contain certain information required by Rule 2.516. Jd. at 689. There was no dispute that the defendant in Matte had actually received the motion; in fact, defendant’s counsel acknowledged that she received and read the Word document. /d. The trial court nevertheless agreed with the defendant and denied the plaintiff's motion for fees. On appeal, the plaintiff argued that because the defendant received actual notice of the motion and its contents, the plaintiff had “substantially complied with the statute.” /d. at 690. The Fourth District flatly rejected this argument, stating that “actual notice does not allow a party to evade strict compliance with the rule.” /d. Relying on its prior decisions requiring strict construction of Rule 1.442, the Fourth District observed that because section 57.105 authorizes an award of attorneys’ fees “in derogation of the common law, it must be strictly construed.” /d. at 689 (citing Montgomery v. Larmoyeux, 14 So. 3d 1067, 1072 (Fla. 4th DCA 2009)). The court therefore affirmed the trial court’s ruling, holding that the “e-mail service of appellant's motion under section 57.105 did not strictly comply with Rule 2.516.” Jd. at 689 (emphasis added). The court further held: Just as is the case with Rule 1.442 regarding proposals for settlement, a bright line rule requiring service in conformity with the mandatory provisions of the rule provides certainty to both parties as to whether attorney’s fees may be assessed if the court finds the action or defense is frivolous. We hold that strict compliance with Florida Rule of Judicial Administration 2.516 regarding e-mail service of pleadings is required before a court may assess attorneys’ fees pursuant to section 57.105, Florida Statutes. Id. at 690 (emphasis added). See also Milton, 22 So. 3d at 625 (affirming denial of attorneys’ fees under section 768.79 and Rule 1.442 where plaintiffs Proposal did not contain certificate of service as required by Rule 1.442, even though there was no dispute plaintiff had mailed it). Rule 2.516 requires that the body of a service email “must identify . . . the title of each document served with that e-mail.” Fla. R. Jud. Admin. 2.516(b)(1)(E)(iii) (emphases added). In her November 13, 2013, service emails to Lorillard and PM USA, although Plaintiff identified the title of the document being served as “Plaintiff's Proposal for Settlement to Lorillard Tobacco Company,” and “Plaintiff's Proposal for Settlement to Philip Morris USA, Inc.”, she attached two documents to each email: (a) the Proposals and (b) the Notices of Service of Proposal. See (Exs. 3 and 4). By failing to identify the title of each document she served with her November 13, 2013 service email, Plaintiff did not strictly comply with the requirements of Fla. R. Jud. Admin. 2.516(b)(1)(E)(iii). As a result, Plaintiff's 2013 Proposals are invalid and unenforceable. See Matte, 140 So. 3d at 689; Campbell, 959 So. 2d at 227; Floyd, 160 So. 3d at 569. The Honorable John Murphy III of Broward County recently reached that same conclusion on materially similar facts in denying Plaintiff's Motion for Attorneys’ Fees and Costs in the McCoy case, holding: Plaintiff's February 2015 Proposals for Settlement, although served by email, are invalid and unenforceable because Plaintiff failed to comply with the e-mail service requirements set forth in Rule 2.516(b)(1). The rule requires that the body of a service e-mail “must identify ... the title of each document served with that e-mail.” Fla. R. Jud. Admin. 2.516(b)(1) (E)(iii). Although Plaintiff attached two documents (the Notice of Service of Proposal for Settlement and the Proposal for Settlement) to the service email, Plaintiff failed to identify the 2015 Proposals for Settlement in the bodies of his service e-mails. Instead, he identified just the Notice of Service. As a result, Plaintiff's February 2015 Proposals for Settlement are invalid and unenforceable. See Matte, 140 So. 3d at 689; see also Campbell, 959 So. 2d at 227 (“strict construction is applicable to both the substantive and procedural portions of the rule and statute”); FJoyd, 160 So. 3d at 569. See Order, In Re: Engle Progeny Cases Tobacco Litig. (McCoy), No. 08-025806 (Fla. 17th Cir. Ct. Apr. 6, 2016). Ex. 15 (emphases added).* B. The “Subject Line” of Plaintiff’s November 13, 2013 Service Emails Did Not Begin with “SERVICE OF COURT DOCUMENT” as Required by Rule 2.516(b)(1)(E)(i) Rule 2.516(b)(1)(E)(i) requires that the “Subject” line of each service email must “begin[] with the words “SERVICE OF COURT DOCUMENT.” The “subject” line of 5 Plaintiff has appealed Judge Murphy’s Order in McCoy to the Fourth District Court of Appeal (No. 4D16-1378). Plaintiff's 2013 service email to Lorillard read as follows: “Subject: RE: SERVICE OF COURT DOCUMENT...” (emphasis in original). See Ex. 3. Likewise, the “subject” line of Plaintiff's 2013 service email to PM USA read as follows: “RE: SERVICE OF COURT DOCUMENT: Case No. 50-2007-CA-024173, Linda Purdo vs. R.J. Reynolds Tobacco Co., et al.” See Ex. 4. By beginning the “subject” line of each service email with “RE:” rather than “SERVICE OF COURT DOCUMENT,” Plaintiff failed to comply with Rule 2.516(b)(1)(E)(i). As a result, Plaintiff's 2013 Proposals are unenforceable. See Matte, 140 So. 3d at 689. In Shulman v. Reynolds, Case No.: 50 2007 CA 023832 XXXX MB (Fla. 15th Cir. Ct.), the Honorable Edward Artau recently denied Reynolds’ motion for entitlement to attorneys’ fees, at least in part, based on Plaintiff's argument that the “Subject” line in Reynolds’s service email began “Shulman Robert - SERVICE OF COURT DOCUMENT” rather than “SERVICE OF COURT DOCUMENT.” See Transcript of Shulman Hearing, pp. 16-18 and 29-31. (Ex. 16). If that is a proper basis to deny a motion for fees and costs brought by Reynolds, then fairness and comity dictate that Plaintiff's motion here should also be denied. il. Plaintiff’s 2016 Proposals Are Invalid and Unenforceable A. The 2016 Individual Proposals Are Invalid and Unenforceable Because They Were Not Made By a Party to this Action A proposal for settlement can only be made by “a party” to the action. Fla. R. Civ. P. 1.442(c)(2)(A); see also,§ 768.79(1), Fla. Stat. (authorizing a “plaintiff” or “defendant” to serve the type of Proposal at issue here); 22” Century Properties, LLC v. FPH Properties, LLC 160 So. 3d 135, 142 (Fla. 4" DCA 2015) (“two conditions must be shown: (1) that the plaintiff filed an offer of judgment that was not accepted by the defendant within thirty days, and (2) that the final judgment was at least twenty-five percent greater that the plaintiff's offer to the defendant.”) (emphases added); § 768.79(6)(b), Fla. Stat. (If a plaintiff serves an offer which is 10 not accepted by the defendant, and if the judgment obtained by the p/aintiff is at least 25 percent more than the amount of the offer, the plaintiff shall be awarded reasonable costs, including investigative expenses, and attorney’s fees...) (emphases added). Further, this is a wrongful death action® and a wrongful death action can only be prosecuted “by the decedent’s personal representative, who shall recover for the benefit of the decedent’s survivors and estate all damages...” § 768.20, Fla. Stat. Since the Personal Representative of Thomas Purdo’s Estate is the only person that can be the Plaintiff in this action, the Estate’s Personal Representative is the only person that can make a Proposal under Fla. Stat. 768.79 and R. 1.442. As a result, the Individual Proposals are nullities and cannot serve as the basis for a claim for fees and costs. Relatedly, the server of these proposals, Linda Purdo in her individual capacity, did not obtain a judgment in her favor -- much less a judgment in an amount that would be required to trigger an award of fees. See § 768.79(6)(b) (allowing an award of fees if “if the judgment obtained by the plaintiff is at least 25 percent more than the amount of the offer”). Indeed, the only creditor in the Final Judgment is “Plaintiff, Linda Purdo Enochs as Personal Representative of the Estate of Thomas Purdo.” For that additional reason, the Individual Proposals are unenforceable. B. Plaintiff’s 2016 Proposals Are Invalid and Unenforceable Because They Failed to Include Statements Required by Rule 1.442(c)(2)(B) Effective January 2, 2014, the Florida Supreme Court amended Rule 1.442(c)(2)(B). See In re Amendments to the Florida Rules of Civil Procedure, 131 So. 2d 643, 648 (Fla. 2013). The 6 See Verdict Form, April 26, 2016, Q.1. “Was Thomas Purdo addicted to cigarettes containing nicotine, and if so, was such addiction a legal cause of a primary lung cancer that caused his death.” Ex. 12. ll former rule required a Proposal to “identify the claim or claims the proposal is attempting to resolve.” Jd. at 648. The current rule, in effect when Plaintiff served each of her 2016 Proposals, mandates that “a proposal shall: (B) state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served...” Id. The Civil Procedure Rules Committee recommended the change “to curtail partial proposals for settlement and to comport with section 768.79(2), Florida Statutes (2012).” Jd. at 644. Notwithstanding the changes to Rule 1.442(c)(2)(B), none of Plaintiff's 2016 Proposals stated “that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served...” Instead, Plaintiff's 2016 Proposals stated: CLAIMS THE PROPOSAL ATTEMPTS TO RERESOLVE (sic): Any and all claims brought, [in her individual capacity or on behalf of the estate of Thomas Purdo], in the above-styled action by the Plaintiff against the Defendant [Reynolds or PM USA]. (See, Ex. 6-9). Because Plaintiffs Proposals do not precisely track Rule 1.442(c)(2)(B), Plaintiff's 2016 Proposals are invalid and unenforceable. See Diamond Aircraft, 107 So. 3d at 376; Gorka, 36 So. 3d at 649; Campbell, 959 So. 2d at 226; Lamb, 906 So. 2d at 1040; Sarkis 0, 863 So. 2d at 218; Willis Shaw, 849 So. 2d at 278; Pratt, 161 So. 3d at 1273; Audiffred 161 So. 3d at 1279-80; Cent. Motor Co., 3 So. 3d at 369. C. Plaintiff’s 2016 Proposals are Invalid and Unenforceable Because They Failed to Specifically Identify the Applicable Florida Law Under Which They Were Made and Were Ambiguous In all four of the 2016 Proposals, Plaintiff made the following conflicting statements as to the applicable Florida law under which she made the Proposals: 12 1. This Proposal for Settlement is made pursuant to Rule 1.442 of the Florida Rules of Civil Procedure and Florida Statute 768.79. 12. CONSEQUENCES OF REJECTION: In the event this proposal is rejected, the Defendant [Reynolds or PM USA] is subject to sanctions, including, but not limited to, those as outlined in Rules 1.442(g) and (h) of the Florida Rules of Civil Procedure, Fla. Stat. 768.79 and any other relief Plaintiff is entitled to as a matter of law and which the Court deems just and proper. (See, Ex. 6-9). (emphasis added). These conflicting statements rendered Plaintiff's 2016 Proposals non-compliant with the requirement in Rule 1.442(c)(1) that “[a] proposal shall . . . identify the applicable Florida law under which it is being made.” Jd. (emphasis added). Instead of properly identifying “the applicable Florida law” as limited to section 768.79 and Rule 1.442, the Proposals here also referenced other, unspecified potential sources of sanctions to which she might be entitled “as a matter of law...”. In Campbell, the Florida Supreme Court addressed the requirement that a Proposal properly state the authority under which it was being made. The proposal in question in Campbell referred to Rule 1.442, but did not refer to section 768.79. See 959 So. 2d at 224. Even though there was only one statute pursuant to which the proposal could have been made and there was admittedly “no lack of clarity, uncertainty, or confusion in [the] offer,” see id. at 227 (Pariente, J., concurring), the Court rejected the contention that this omission was “a mere technical violation.” Jd. Instead, the Court reversed the fees award and held that because “the overall subject is in derogation of the common law,” the provisions requiring a party to specifically identify the relevant law in their proposals must be “strictly construed.” /d. at 227. Here, Plaintiff failed to clearly identify the applicable Florida law under which she made her 2016 Proposals in violation of the Florida Supreme Court’s holding in Campbell. While