10 Fla. L. Weekly Supp. 396a
Insurance — Appeals — Timeliness — Motion for rehearing of order dismissing appeal for lack of jurisdiction — Amended final judgment purporting to re-enter order enforcing settlement agreement and awarding prejudgment interest did not materially alter order so as to toll time for appeal where issue on appeal is not prejudgment interest but validity of settlement agreement insofar as it affects entitlement to attorney’s fees — Additional finding in amended final judgment that agreement was “written” does not affect appellant’s rights and obligations where, whatever form agreement took, trial court enforced it and circuit court considered its validity in first appeal, which challenged dismissal of motion to determine entitlement to attorney’s fees — No merit to contention that appellant did not have grounds to file cross-appeal challenging order enforcing settlement agreement in first appeal because order reflected intent of parties where, although order may have reflected parties’ intent when rendered, validity of agreement became contested prior to, and was ripe for review by time of, first appeal — Further, there is no merit to argument that if appellant had argued against order in first appeal, it would be seeking reversal of later order denying entitlement to attorney’s fees where appellant could have argued against attorney’s fees on ground that settlement agreement is invalid, and that trial court reached right result for wrong reason, and appellant, in fact, did make that argument in first appeal — Although in first appeal circuit court denied relief on rehearing stating that order on appeal was order denying motion to determine entitlement to attorney’s fees, not order enforcing settlement agreement, validity of the agreement is essential to determination of entitlement to attorney’s fees and circuit court did consider the issue — Rehearing denied
STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, vs. PERRY MOORE, Appellee. Circuit Court, 13th Judicial Circuit (Appellate) in and for Hillsborough County. Case No. 01-11389. Division X. L.C. Case No. 96-10119-CC-I. April 16, 2003. Robert J. Simms, Judge. Counsel: Karen Barnett, Tampa; Betsy E. Gallagher, Tampa, for Appellant. Wendy Coxhead, Newcastle, WA, for Appellee.
ORDER DENYING MOTION FOR REHEARING[Original Opinion at 10 Fla. L. Weekly Supp. 395b]
This matter came before the Court on Appellant’s Motion for Rehearing. Appellant seeks rehearing on this Court’s Order Dismissing Appeal for Lack of Jurisdiction. In its motion, Appellant challenges this Court’s dismissal of the appeal because 1) the Amended Final Judgment from which it took the appeal materially altered a 1997 Order Enforcing Settlement Agreement, rendering the issues therein ripe for appeal; and 2) this Court misapprehended the law when it determined that Appellant could have previously appealed the 1997 Order Enforcing Settlement Agreement. We deny the motion.
As to the first point, Appellant maintains that the Amended Final Judgment awards prejudgment interest, and that this materially alters the 1997 order which this Court said should have been addressed in a previous appeal in this case (hereinafter referred to as the “first appeal”). This is unpersuasive. Appellant is not appealing an award of prejudgment interest. The issue herein is, and has been for some time, the validity of the settlement between the parties, insofar as it affects entitlement to attorney’s fees. Appellant also asserts the trial court’s additional finding that the agreement was “written” materially affects its rights and obligations. It does not. For reasons more fully explained below, it is clear that, whatever form the agreement took, the trial court enforced it in 1997 and the circuit court considered the issue of its validity in the first appeal. Thus, the changes in the Amended Final Judgment do not affect the agreement or the determination of its validity, and the alterations are irrelevant to this appeal. St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla. 1971) (the fact that petitioner’s application for review was directed to alleged errors in the [amended] order is significant in determining materiality of amendments to order).
Appellant’s second point — that this Court misapprehended the law when we determined that Appellant could have appealed the Order on Plaintiff’s Motion to Enforce Settlement Agreement in the first appeal — is without merit for several reasons. Appellant contends that it did not have grounds to file a cross-appeal in the first appeal because the order of the trial court reflected the intent of the parties. That may have been true at the time of the rendition of that order, which was arguably nonfinal anyway. However, the subsequent Motion for Attorney’s Fees and the substantial litigation that followed, including the first appeal, suggest that the present issue — the validity of the agreement — became contested prior to, and was ripe for review by the time of the first appeal.1 Our review of the record indicates that State Farm had already generally raised the issue prior to the first appeal. In a fee hearing that preceded the first appeal, Appellant’s counsel challenged the validity of the agreement when she argued that “there was never a settlement of this case…there was no meeting of the minds and there cannot be a settlement.” See Appendix to Motion for Rehearing, Transcript, pp. 10-11 of the January 14, 1999, hearing.2
Appellant maintains that if it had argued against the 1997 Order Enforcing Settlement Agreement in the first appeal, it would necessarily be seeking a reversal of the 1999 Order Denying Entitlement to Attorney’s Fees. See Appellant’s Motion for Rehearing (Second Appeal), pp. 14-15. This argument is without merit. Appellant, faced with the potential that attorney’s fees could be awarded by the Circuit Court, could have argued against attorney’s fees on the ground that the settlement agreement was invalid, and that the trial court reached the correct result on the issue of attorney’s fees for the wrong reason. Appellant, in its Motion for Rehearing [of the second appeal], suggests such an argument when it admits in its Motion for Rehearing that Moore’s framing of the issue in the first appeal “begged the question of whether [State Farm] could and did renew the Offer of Judgment…and whether there was a valid settlement between the parties.” And, in response to this framing of the issue in the first appeal, State Farm proceeded to argue against the agreement’s validity on two grounds. The first was that an offer of judgment once lapsed cannot be revived, precluding an award of fees pursuant to Section 768.79, Florida Statutes; the second was the lack of evidence that the settlement constituted a confession of judgment pursuant to Section 627.428, Florida Statutes. See Appellee’s answer brief, pp. 5, 8-9, respectively, appellate case no. 99-2053, Moore v. State Farm Mutual Auto Insurance Company. Not only could State Farm have made the arguments it claimed it could not, it did do so. These arguments go to the validity of the agreement and ultimately, the order enforcing it, the very same issue over which Appellant now seeks review in this Court.
The Court notes that, although the circuit court denied relief on rehearing, stating that the order on appeal was the Order Denying Plaintiff’s Motion to Determine Entitlement to Attorney’s Fees and Costs and not the Order Enforcing Settlement Agreement, the validity of the underlying agreement is essential to the determination of entitlement to attorney’s fees. Indeed, the Court did consider the issue.3 Because it did, we cannot disturb those findings. The Florida Supreme Court has said:
“Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, although the questions are not expressly treated in the opinion of the court, as the presumption is that all the facts in the case bearing on the points decided have received due consideration whether all or none of them are mentioned in the opinion.”
See Jones v. Mercury Cab Owners’ Association, 95 So.2d 29 (Fla. 1956), citing 5 C.J.S. Appeal and Error, s. 1832. We are bound by the previous decision. Bolstering our determination that we lack jurisdiction to review the issues is the fact that after the circuit court denied State Farm’s motion for rehearing in the first appeal, State Farm filed a petition for writ of certiorari in the Second District Court of Appeal, arguing that the circuit court in its appellate capacity applied an incorrect legal principle relating to offers of judgment to determine the terms of a disputed oral settlement. The petition was denied. Appellant has had several opportunities to have the issues concerning the agreement’s validity heard; we are constrained to give it yet another.
This Court cannot fathom the intent of the parties as to fees at the time of the resolution of this case. It may well be that Appellant made a mistake in tendering its so-called “Standard Release” and that Appellee is taking financial advantage of that mistake. That does not concern this Court.
The rehearing is DENIED. (Levens and Baumann, JJ., concur.)
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1In this Court’s Order Dismissing Appeal for lack of jurisdiction, we held that the interlocutory order merged into the first appeal.
2The first appeal sought review of the order rendered as a result of the January 14, 1999, hearing, which denied entitlement to attorney’s fees.
3Attorney’s fees were awardable under more than one theory, and authority contemplating two such theories was cited by the Court in its opinion in the first appeal.
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