DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
CHRIS THOMPSON, P.A. a/a/o ELMUDE CADAU,
Appellant,
v.
GEICO INDEMNITY COMPANY,
Appellee.
Nos. 4D21-1820 and 4D21-2310
[September 14, 2022]
Consolidated appeals from the County Court for the Fifteenth Judicial
Circuit, Palm Beach County; Sandra Bosso-Pardo, Judge; L.T. Case No.
502018SC011039XXXXMB.
Douglas H. Stein of Douglas H. Stein, P.A., Coral Gables, for appellant.
Michael A. Rosenberg, Peter D. Weinstein, Adrianna De La Cruz-Muñoz,
and Daniela Silva of Cole, Scott & Kissane, P.A., Plantation, for appellee.
ON MOTION FOR WRITTEN OPINION
PER CURIAM.
We grant appellant’s motion for written opinion as to that portion of the
panel opinion affirming the trial court’s order granting attorney’s fees
pursuant to a proposal for settlement.
Appellant argues that Geico’s proposal did not comport with the
requirements of Florida Rule of Civil Procedure 1.442 and that the
affirmance conflicts with Deer Valley Realty, Inc. v. SB Hotel Associates
LLC,
190 So. 3d 203, 206 (Fla. 4th DCA 2016).
However, appellant failed to preserve that argument by timely raising it
in the circuit court.
The record reflects that on March 10, 2021, Geico moved for entitlement
to attorney’s fees and costs pursuant to a proposal for settlement.
Appellant did not file a written response. On May 11, 2021, the trial court
held a hearing on the motion, during which appellant contended that the
offer was not made in good faith. Appellant never argued that the proposal
failed to comply with Florida Rule of Civil Procedure 1.442. The trial court
granted Geico’s motion for entitlement to fees.
Appellant moved for rehearing, arguing for the first time that the
proposal for settlement was “defective as a matter of law” for failing to state
whether attorney’s fees were part of the legal claim. It also filed a second
motion for reconsideration, again arguing that the proposal for settlement
was defective because it did not comply with rule 1.442. Appellant
submitted a memorandum, acknowledging that it was “raising an issue
undisputably not previously presented to the court,” but pointing out that
the order determining entitlement was not a final order and was therefore
subject to reconsideration at any time prior to judgment—in this case, an
order determining the amount of fees owed.
Geico’s response asserted, among other things, that appellant waived
the issue regarding the validity of the proposal because it failed to raise
the argument at any of the prior hearings. Geico also noted that the case
relied upon by appellant, Deer Valley, was decided in April 2016, and was
therefore available to appellant on May 11, 2021, when the motion for
entitlement was heard.
The trial court denied appellant’s motion, finding that it “did not timely
raise the DEER VALLEY issue.”
Appellant asserts that the trial court could not ignore binding authority
simply because it was brought before the court on a motion for
reconsideration, noting that the order granting entitlement was a non-final
order. It is true that “a trial court has the inherent authority to reconsider
a non-final order and modify or retract it.” Precision Tune Auto Care, Inc.
v. Radcliff,
731 So. 2d 744, 745 (Fla. 4th DCA 1999). Yet, it is not an
abuse of discretion to deny a motion for reconsideration which raises an
issue that could have been, but was not, raised in a pre-hearing filing or
at the entitlement hearing. See Bank of Am., N.A. v. Bank of N.Y. Mellon,
338 So. 3d 338, 341 n.2 (Fla. 3d DCA 2022) (“A trial court does not abuse
its discretion in denying a motion for reconsideration or rehearing which
raises an issue that could have [been], but wasn’t, raised in the initial
motion or at the initial hearing.”); see also Kovic v. Kovic,
336 So. 3d 22,
25 (Fla. 4th DCA 2022) (stating that an issue was not preserved because
“[t]he first time this argument was raised was in the motion for rehearing
of the order on appeal”); Best v. Educ. Affiliates, Inc.,
82 So. 3d 143, 146
(Fla. 4th DCA 2012) (declining to consider new evidence or argument
raised for the first time in a motion for rehearing in the trial court);
Trinchitella v. D.R.F., Inc.,
584 So. 2d 35, 35 (Fla. 4th DCA 1991) (“We
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cannot consider the issues raised for the first time in a motion for
rehearing in the trial court.”).
On the remaining issue, the trial court did not abuse its discretion in
determining that Geico’s proposal for settlement was made in good faith.
Affirmed.
WARNER, GROSS and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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