12 Fla. L. Weekly Supp. 395b
Insurance — Settlement — Defendant’s motion for reconsideration of order entered by predecessor judge granting plaintiff’s motion to enforce settlement agreement and imposing sanctions against defendant for failure to comply with the terms of the settlement — Correspondence which was known to defendant and some of defendant’s attorneys prior to hearing, but which was not brought to the covering attorney’s attention, not basis for reconsideration — Correspondence did not unequivocally establish the defendant’s entitlement to prevail, nor does court’s failure to consider the correspondence result in harmful error which in interest of justice should be corrected — Relief from judgment — Motion for reconsideration which was unsworn could not be treated as rule 1.540 motion and, in any event, problem giving rise to motion was created by defendant, who in exercise of due diligence should have been able to properly present it to court — With respect to payment ordered by predecessor judge, defendant had more than sufficient time to produce sum and should have provided the sum to plaintiff, even if it believed it would be successful with its request for reconsideration
R.J. TRAPANA, M.D., P.A., Plaintiff, vs. UNITED AUTOMOBILE INSURANCE COMPANY, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. 04-15175 COCE (53). February 1, 2005. Robert W. Lee, Judge. Counsel: Russel Lazega, The Law Office of Russel Lazega, North Miami, for Plaintiff. Michael J. Joyce, Coral Gables, for Defendant.
ORDER DENYING DEFENDANT’S MOTION FOR RECONSIDERATION AND TO VACATE ORDER GRANTING PLAINTIFF’S MOTION TO ENFORCE SETTLEMENT, IMPOSING SANCTIONS UPON DEFENDANT; and ORDER GRANTING PLAINTIFF’S MOTION TO ENFORCE COURT ORDER
THIS CAUSE came before the Court on January 31, 2005 for hearing of the above Motions, and the Court’s having reviewed the Motions, the entire Court file, and the relevant legal authorities; having made a thorough review of the matters filed of record; having considered argument of counsel; and having been sufficiently advised in the premises, the Court finds as follows:
Background. On October 19, 2004, the Honorable William Herring, the undersigned judge’s predecessor in this division, entered an order granting the Plaintiff’s motion to enforce settlement agreement pursuant to Florida Statute §627.4265. In addition, the Court imposed sanctions against the Defendant in the amount of $250.00 for its failure to comply with the terms of the settlement and directed that the sanction be paid within thirty days.
On October 22, 2004, the Defendant served its Motion for Reconsideration, which was filed on October 24. In it the Defendant argues that its attorney appearing at the hearing was not aware of a piece of correspondence that it believes would have caused the Court to make a different ruling. The Defendant acknowledges that it was aware of the correspondence, but that it neglected to advise the attorney of its existence until after the bearing.
Because the Defendant has failed to demonstrate the alleged inadvertence would have unequivocally established its entitlement to prevail, or that the inadvertence gives rise to such a harmful error which in the interest of justice should be corrected, the Defendant’s Motion is denied.
Conclusions of Law. Technically, a motion for rehearing or reconsideration is not authorized unless the matter pertains to a final order. Wagner v. Bieley, Wagner & Associates, Inc., 263 So.2d 1, 3 (Fla. 1972).Assigning that the order involved in the instant case is a final order, a motion for rehearing or reconsideration generally only pertains to matters which were not discovered until after the entry of the order. Braznell v. Braznell, 140 Fla. 192, 196, 191 So. 457, 459 (1939). In the instant case, the correspondence was known to the Defendant and some of its attorneys prior the hearing. They simply failed to bring it to the covering attorney’s attention. In such a circumstance, the Defendant cannot argue that it was not aware of the correspondence prior to the hearing.
In final orders emanating from non-jury matters, as in the instant case, there is some authority that a court has the discretion to reconsider an order even if the matter was known to the party. These cases, however, appear to all involve situations in which the new information “unequivocally established” the party’s entitlement to prevail. See National Enterprises, Inc. v. Martin, 679 So.2d 331, 333 (Fla. 4th DCA 1996) (omitted written assignment of mortgage unequivocally established plaintiff’s ownership); Pensacola Chrysler-Plymouth, Inc. v. Costa, 195 So.2d 250, 254 (Fla. 1st DCA 1967) (referring to a “harmful error [. . .] which in the interest of justice should be corrected”). In the instant case, the Court has reviewed the proffered correspondence and finds that it does not “unequivocally establish” the Defendant’s entitlement to prevail, nor does the Court’s failure to consider the correspondence result in such a “harmful error [. . .] which in the interest of justice should be corrected.” In addition, the Court notes that the Defendant acknowledges that the matter had in fact been settled.
Although not framed as a motion for relief under Rule 1.540, the Court has considered the matter additionally under that rule to avoid a further hearing. The Court initially notes that the Defendant’s Motion was not sworn, thereby defeating its treatment as a Rule 1.540 motion. See Eden Park Management, Inc. v. Zagorski, 821 So.2d 1263, 1264 (Fla. 4th DCA 2002). However, even if the motion were correctly submitted, the Defendant would not have been entitled to relief because the problem giving rise to the motion for reconsideration was created by the Defendant, who in the exercise of due diligence should have been able to properly present it the Court. See City of Winter Haven v. Tuttle/White Constructors, Inc., 370 So.2d 829, 831 (Fla. 2d DCA 1979). As a result, the Defendant is not entitled to reconsideration.
As for the Plaintiff’s Motion to Enforce Court Order, the Defendant acknowledges that it has failed to pay the $250.00 ordered by Judge Herring on October 19. The Defendant has had more than sufficient time to produce the sum. Even if it believed it would be successful with its request for reconsideration, it should have still provided the sum to Plaintiff, and then sought its return if the Court ruled in the Defendant’s favor. Accordingly, it is hereby
ORDERED and ADJUDGED that the Defendant’s Motion for Reconsideration is hereby DENIED, and the Plaintiff’s Motion to Enforce Court Order is hereby GRANTED. The Defendant shall have until Friday, February 4, 2005 at 3:00 p.m. to deliver the $250.00 directly to Plaintiff’s attorney’s office. The Court will not consider further sanctions in this matter unless the Defendant fails to comply with the terms of this Order.
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