Amber Ashton Published in Bar Section Magazine

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September 25, 2017

Amber Ashton, Special Counsel in the Firm’s Tampa Office, has published another article for the Real Property, Probate and Trust Law Section (“RPPTL”) of the Florida Bar’s quarterly magazine, ActionLine. As part of her fellowship with the RPPTL, Amber’s article “Don’t Let The Mailbox Rule Box You Out” outlines practice pointers for other attorneys regarding the application of Rule 2.514, of the Florida Rules of Judicial Administration, in motion practice. You can read the entire article below.

“Don’t Let The Mailbox Rule Box You Out”

We all know that Rule 2.514, Fla. R. Jud. Admin., may provide additional time within which to serve a response to a motion or respond to written discovery. Many practitioners, however, do not understand the potential implications of Rule 2.514, Fla. R. Jud. Admin., as it relates to service of motions for summary judgment and summary judgment evidence in advance of a hearing.

Computation of time is governed by Rule 1.090(a), Fla. R. Civ. P., which adopts and incorporates the computation procedures set forth in Rule 2.514, Fla. R. Jud, Admin., for the purposes of calculating deadlines. Rule 2.514(b), Fla. R. Jud. Admin., which is frequently referred to as “the mailbox rule” (“Mailbox Rule”), provides that “[w]hen a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added [to the time period].” These days, where service is regularly effectuated through e-mail, and despite the instantaneous nature of e-mail, the Mailbox Rule still provides that an additional five (5) days are to be added to the time period when service is accomplished by e-mail. It is important to note that service through the e-portal is still considered e-mail service and there is no special provision of either the Florida Rules of Civil Procedure or the Florida Rules of Judicial Administration that specifically address service through the e-portal for the purposes of computation of time.

Rule 1.510(c),Fla. R. Civ. P., requires that both a motion for summary judgment and all summary judgment evidence be served at least twenty (20) days in advance of the date set for the hearing thereon. If service is accomplished through only the e-portal or e-mail, by application of the Mailbox Rule, both the motion for summary judgment and all affidavits and other summary judgment evidence must, in fact, be served at least twenty-five (25) days in advance of the date fixed for the hearing on the motion for summary judgment. See, Nelson v. Balkany, 620 So. 2d 1138, 1139 (Fla. 3d DCA 1993). Generally, a hearing cannot be set until such time as the motion for summary judgment is filed, but it is not uncommon for affidavits to be amended or updated within the weeks leading up to the hearing. By application of the Mailbox Rule, if your affidavit in support of a motion for summary judgment is filed twenty (20) days prior to the hearing and served via e-mail, you may find yourself without evidentiary support for your motion if this procedural deficiency is raised.

Until such time as the Florida Rules of Judicial Administration are revised to eliminate the Mailbox Rule for documents served via e-mail or through the e-portal, the best course of action is to continue with the practice most practitioners adopted years ago and serve documents via facsimile when the deadline for mail service has passed. Facsimile service continues to be considered on par with hand-delivery and, as such, allows you to serve your summary judgment evidence twenty (20) days in advance of the scheduled hearing.

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