CHRIS THOMPSON, P.A. a/a/o ELMUDE CADAU v. GEICO INDEMNITY COMPANY ( 2022 )


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  •        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
    2
    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.
    3