Abbey Adams Logo

Defending Liability, Employment Claims and Appeals Since 1982

  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer

  • Bloglovin
  • Facebook
  • LinkedIn
  • Phone
  • Home
  • Locations
    • Where We Practice in Florida
    • Where We Are Available to Practice In Illinois
  • Practices
  • Blog
  • Attorneys
    • David J. Abbey
    • Jeffrey M. Adams
    • Robert P. Byelick
    • Jennifer J. Kennedy
    • John D. Kiernan (1947-2016)
    • V. Joseph Mueller
    • Elisabeth K. Eubanks
  • Links
  • Contact Us

September 15, 2022 by Jennifer Kennedy

Attorney’s fees — Proposal for settlement — Argument that proposal did not comport with requirements of rule 1.442 was not preserved for review where argument was not raised in timely manner — It was not an abuse of discretion for trial court to deny motion for reconsideration which raised for the first time an issue that could have been, but was not, raised in pre-hearing filing or at hearing on entitlement to fees

47 Fla. L. Weekly D1899b

CHRIS THOMPSON, P.A. a/a/o ELMUDE CADAU, Appellant, v. GEICO INDEMNITY COMPANY, Appellee. 4th District. Case 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. Counsel: 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[Original Opinion at 47 Fla. L. Weekly D1588b]

(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 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.)* * *

Filed Under: Uncategorized

Primary Sidebar

Recent Posts

  • Insurance — Automobile — Insurer who filed a claim under her automobile insurance policy after her vehicle was damaged in an accident sued insurer claiming breach of policy after insured declared the vehicle a total loss and paid her what it deemed the actual cash value of vehicle — Breach of contract — Insurer was entitled to summary judgment on claim that insurer breached the policy by using an illegal methodology to calculate actual cash value — District court did not err in ruling insurer’s methodology for calculating actual cash value complied with Florida law — As matter of first impression, Section 626.9743(5), Florida Statutes, which provides that, in calculating “actual cash value” of insured’s vehicle based on actual cost to purchase comparable motor vehicle “derived from … two or more comparable motor vehicles available [in local market area] within the preceding 90 days,” did not require that “actual cash value” equal actual cost to purchase comparable vehicle — Insurer’s use of the Uniform Condition Adjustment, advertised prices of comparable motor vehicles, and the Certified Collateral Corporation ONE Market Valuation system to calculate the actual cash value of insured’s vehicle complied with Florida statute — Statute did not require that insurer use “retail cost as determined from generally recognized motor vehicle industry source” if it utilized one of other two statutory alternative methods for determining cost to purchase comparable motor vehicle — Insurer was entitled to summary judgment on claim that it breached the policy by failing to pay, as part of vehicle’s actual cash value, dealer fees incurred in purchasing replacement vehicle — Insurer was not required to pay insured’s out-of-pocket dealer fees — Under Florida and Eleventh Circuit law, “actual cash value” in an insurance policy means replacement cost less depreciation, and replacement cost includes dealer fees if the policyholder is reasonably likely to need to incur dealer fees — Insured failed to satisfy the standard for inclusion of dealer fees in replacement cost where insured showed a reasonable likelihood that she would incur dealer fees if she chose to purchase her replacement vehicle from a dealer and that a policyholder is reasonably likely to purchase a replacement vehicle from a dealer, but failed to show that a policyholder is reasonably likely to need to purchase a replacement vehicle from a dealer
  • Torts — Punitive damages — Amendment of complaint — Action alleging that vibration from defendant’s installation of sheet piles during construction on its parcel caused damage to plaintiff’s building — Trial court erred in granting plaintiff’s motion to amend its complaint to assert a claim for punitive damages based on allegation of gross negligence where plaintiff did not make required evidentiary showing to support such a claim — Report produced by third-party contractor warning defendant against the use of large vibratory compaction equipment in construction project, when read together with contractor’s deposition testimony, offered no evidentiary support for plaintiff’s claim that contractor warned defendant against using vibratory equipment in installation of sheet piles — Plaintiff’s expert’s affidavit, which drew illogical conclusions from contractor’s report, offered no support for gross negligence claim
  • Torts — Premises liability — Malls — Dangerous condition — Landscaping features — Vicarious liability — Action against operator of mall arising from injuries plaintiff suffered after stepping into a hole or depression in a raised landscape area which separated mall’s parking lot from the sidewalk that led to mall’s entrance — No error in entering summary judgment in favor of defendant because, as a matter of law, the landscaped area was not a dangerous condition — Evidence that a few people had walked across the landscaped area to get to the sidewalk was not sufficient to create a duty where there was no evidence that the grass bed had become a well-trampled footpath or that the grass bed has been in continuous and obvious use as a pedestrian shortcut such that defendant was put on constructive notice of the condition — Defendant cannot be held vicariously liable for condition created by landscapers where landscapers were not found liable
  • Torts — Automobile accident — Permanent injury — Causation — Trial court improperly directed verdict on causation given conflicting evidence which would have permitted reasonable jury to conclude that plaintiff had a pre-existing back injury caused by weight training or prior participation in competitive crew rowing
  • Insurance — Homeowners — Coverage — Vandalism — Trial court erred by denying insurer’s motion for directed verdict where policy limited coverage to insured’s “residence premises,” and insured did not “reside” at the property at the time of loss — Fact that insured was no longer leasing the property and was intending to move back when property was vandalized does not alter analysis

Blog Archives

Footer

The materials available at this website are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Website or any of the e-mail links contained within the site do not create an attorney-client relationship between Abbey, Adams, Byelick & Mueller, L.L.P. and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney. opens in a new windowAbbey, Adams, Byelick, & Mueller XML Sitemap Index

Copyright © 2023 · Abbey Adams Byelick & Mueller, LLP · All Rights Reserved · Defending Liability, Employment Claims and Appeals Since 1982