14 Fla. L. Weekly Supp. 523a
Insurance — Automobile — Cancellation — Appeals — Timeliness — Insured’s motion for rehearing was timely when measured by date of service rather than date of filing; therefore, appeal filed within 30 days of order on motion for rehearing was also timely filed — Law of case doctrine did not preclude trial court from entering summary judgment on remand after entry of appellate order finding that neither party’s motion for summary judgment should have been granted due to existence of factual issues where appellate court’s statement was not decision on question of law, and record before trial court following remand was different from record on appeal — Insured is estopped from arguing on appeal that disputed issues of fact regarding cancellation of policy exist that precluded entry of summary judgment for insurer where insured argued to trial court that no material issues of fact existed on that issue — No error in denying insured’s motion for rehearing seeking to amend complaint to plead promissory estoppel where insured could not have pled viable estoppel theory — Attorney’s fees — Appellate — Justiciable issues — Motion for section 57.105 fees is denied for failure to afford safe harbor period to insured
DENISE MARINO, Appellant, v. NEW HAMPSHIRE INDEMNITY CO., INC., Appellee. Circuit Court, 9th Judicial Circuit (Appellate) in and for Orange County. Case No. CVA1 05-23. March 6, 2007. Appeal from the County Court for Orange County, C. Jeffery Arnold, Judge. Counsel: Carlos R. Diez-Arguelles, Martinez, Manglardi, Diez-Arguelles & Tejedor, P.A., for Appellant. Walter A. Ketcham, Jr., and Ramon Vazquez, Grower, Ketcham, Rutherford, Bronson, Eide, & Telan, P.A., for Appellee.
(Before DAWSON, SPRINKEL, and GRINCEWICZ, JJ.)
FINAL ORDER AND OPINION AFFIRMING TRIAL COURT
(PER CURIAM.) Appellant Denise Marino filed this appeal of the Summary Final Judgment entered against her on New Hampshire Indemnity Co., Inc.’s motion for summary judgment. We dispense with oral argument. Fla. R. App. P. 9.320.
New Hampshire sent a notice of cancellation of insurance to Marino on June 25, 1997. The notice of cancellation stated that Marino’s auto insurance would be cancelled due to nonpayment of premium unless Marino remitted $135.71, to New Hampshire before the cancellation date, listed as July 9, 1997. Marino tendered $68.00, to New Hampshire on July 19, 1997, and New Hampshire accepted the payment. Marino was involved in an automobile accident on July 16, 1997. New Hampshire denied coverage for the accident, stating that Marino’s insurance policy was not in effect from July 9 until July 19, 1997, when New Hampshire received the partial payment.
The trial court granted summary judgment in favor of Marino, finding that New Hampshire failed to give the required ten days’ notice of cancellation. The trial court found that the policy should not have been cancelled for an additional five days pursuant to Florida Rule of Civil Procedure 1.090(e), which allows an enlargement of time to perform by five days when service is by mail.
This Court reversed the trial court’s ruling on May 29, 2002, and held that Rule 1.090(e) did not apply to the notice of cancellation. In addition, the Court declined to find that either party was entitled to summary judgment, stating, “This Court finds that neither motion for summary judgment should have been granted, as there existed genuine issues of material fact and neither party was entitled to judgment as a matter of law when the motions for summary judgment were made.” (R. 226.)
Following remand to the trial court, both parties again moved for summary judgment. This time, the trial court entered summary judgment for New Hampshire, finding that Marino did not pay for coverage prior to July 9, 1997, which created a gap in coverage from July 9th until she did make a partial payment to New Hampshire on July 19, 1997. As the car accident occurred during that gap in coverage, the trial court found that New Hampshire correctly denied insurance coverage for the accident. The Final Summary Judgment entered in favor of New Hampshire was filed on November 24, 2003.
Marino then served a motion for rehearing on December 4, 2003, arguing that this Court’s opinion precluded granting summary judgment due to disputed issues of fact. In addition, Marino argued that she should be permitted to amend her pleadings “to state a theory of relief under promissory estoppel.” (R. 260.) On March 16, 2005, the trial court rendered its order denying Marino’s motion for rehearing. Marino then filed her notice of appeal on April 7, 2005.
Jurisdiction
New Hampshire argues that the Court does not have jurisdiction over this appeal. New Hampshire asserts that Marino’s motion for rehearing was filed more then ten days after the final judgment was filed, and therefore it was untimely. According to New Hampshire, because the motion for rehearing was untimely filed, it did not toll the time for filing a notice of appeal of the final judgment. Thus, New Hampshire argues that even though the notice of appeal was filed within thirty days of the date of the order on the motion for rehearing, the notice of appeal was untimely because it was filed more than thirty days after the date of rendition of the final judgment.
As pointed out by Marino in the Reply Brief, Florida Rule of Civil Procedure 1.530 requires service of the motion for rehearing within ten days, not filing. According to the certificate of service, Marino’s motion for rehearing was served within ten days of rendition of the final judgment. The motion for rehearing was therefore timely, and the notice of appeal filed within thirty days of the date of filing of the trial court’s order on the motion for rehearing was also timely filed. Fla. R. App. P. 9.020(h)(1) (final order deemed rendered when order on timely motion for rehearing is filed). Thus, the Court does have jurisdiction over this appeal.
Law of the Case Doctrine
Marino argues that the law of the case doctrine precluded the trial court from entering summary judgment. Marino relied on the following language in this Court’s order reversing the summary judgment entered for Marino: “This Court finds that neither motion for summary judgment should have been granted, as there existed genuine issues of material fact and neither party was entitled to judgment as a matter of law when the motions for summary judgment were made.”(R. 226 (emphasis added).)
“The doctrine of the law of the case requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Dep’t of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001). The law of the case doctrine requires the trial court to follow the appellate court’s rulings “as long as the facts on which such decision are [sic] based continue to be the facts of the case.” Id. at 106.
When this case was first brought up on appeal, this Court stated that genuine issues of material fact existed, which precluded granting summary judgment for either party. This was not a decision regarding a question of law, but a statement regarding the record before the Court. In addition, New Hampshire filed a new affidavit by Stanley H. Lummus, its Director of Underwriting and Operations, following remand of the case to the trial court. Therefore, the record before the trial court following remand was not the same as the record before this Court on the original appeal.1 As Marino is relying on a statement that was not a decision on a question of law on the prior appeal, and the record before the trial court following remand is different than it was during the first appeal, the law of the case doctrine does not apply to this situation.
Disputed Issues of Material Fact
Marino argues that disputed issues of material fact exist, thus precluding the trial court from entering summary judgment. She argues that the trial court should not have relied on the new affidavit by Lummus because it contradicts Lummus’ prior deposition and affidavits. New Hampshire responds that Marino also moved for summary judgment following this Court’s remand after the original appeal.
A party may not argue on appeal that there was a material issue of fact precluding summary judgment, if that same party argued to the trial court that there were no material issues of fact regarding the same question. Wilmo on the Bluffs, Inc. v. CSX Transp., 559 So. 2d 294, 295 (Fla. 1st DCA 1990).
On appeal, Marino argues that there are genuine issues of material fact regarding “whether the proper notice was given and the resolution of ambiguities . . . .” (Initial Br. 15.) In her renewed motion for summary judgment before the trial court (and after the first appeal), however, she stated, “Because this case presents questions of law that turn on the construction of written documents and the legal effect to be drawn from those documents, summary adjudication under Fla.R.Civ.P. 1.510(a) [sic] is particularly appropriate.” (R. 242.) In that renewed motion for summary judgment, Marino relied on what she considered undisputed facts to support her position that New Hampshire’s behavior created an ambiguity regarding when the insurance policy was canceled. This position is directly contrary to the one she takes on appeal, which is that genuine issues of material fact exist regarding “whether the proper notice was given and the resolution of ambiguities . . . .” (Initial Br. 15.) In addition, Marino’s renewed motion for summary judgment was filed approximately three months after New Hampshire’s motion for summary judgment and the subsequent Lummus affidavit were filed. Thus, Marino had the opportunity to argue before the trial court that genuine issues of material fact precluded granting New Hampshire’s motion for summary judgment before she filed her own renewed motion for summary judgment, which asserted that there were no such issues.2 As Marino is taking inconsistent positions before the trial court and before this Court regarding the existence of genuine issues of material fact as to the specific question of whether the insurance policy was canceled when the accident occurred, Marino is estopped from making this argument.
Estoppel
Marino argues that the trial court erred in denying her motion for rehearing of the order granting summary judgment for New Hampshire because Marino should have been given an opportunity to amend her complaint “to state a theory of relief under promissory estoppel.” (Initial Br. at 21.)
“The elements of estoppel are: (1) representation of a material fact by the party estopped to the party claiming the estoppel that is contrary to the fact later asserted by the estopped party; (2) reliance on that representation by the party claiming the estoppel; and (3) the party claiming the estoppel detrimentally changed their position due to such reliance.” Zurstrassen v. Stonier, 786 So. 2d 65, 68-69 (Fla. 4th DCA 2001).
In this case, there is not any evidence supporting the second and third elements. Marino did not file an affidavit or her deposition stating either that she relied on the representation that she had insurance on the date of the accident or that she changed her position in reliance on the representation. Although summary judgment should not be entered when it appears that the party has a viable claim, O’Brien v. Young, 538 So. 2d 112, 113 (Fla. 2d DCA 1989), in this case there is no indication that Marino can allege all of the elements of estoppel. Thus, the trial court correctly rejected this as a basis for granting Marino’s motion for rehearing.
The law of the case doctrine did not preclude the trial court from granting summary judgment. In addition, Marino is estopped from arguing on appeal that genuine issues of material fact should have prevented the trial court from entering summary judgment, as Marino argued before the trial court that there were no genuine issues of material fact regarding cancellation of the insurance policy. Finally, Marino could not have pled a viable estoppel theory, and therefore her motion for rehearing should not have been granted. Thus, the Court affirms the trial court’s final judgment for New Hampshire.
Motions for Appellate Attorney’s Fees
Marino moves for an award of attorney fees pursuant to Rule 9.400, Florida Rules of Appellate Procedure, and section 627.428, Florida Statutes. As the Court affirms the judgment entered in favor of New Hampshire, Marino is not entitled to an award of attorney’s fees.
New Hampshire also moves for an award of attorney’s fees pursuant to section 57.105, Florida Statutes, arguing that Marino’s appeal is frivolous. Marino argues that New Hampshire failed to comply with section 57.105(4), which states that the movant must serve the motion for attorney’s fees under section 57.105 on the opposing party twenty-one days before filing the motion.
The purpose of this requirement “is to give a pleader a last clear chance to withdraw a frivolous claim or defense . . . .” Maxwell Bldg. Corp. v. Euro Concepts, LLC, 874 So. 2d 709, 711 (Fla. 4th DCA 2004). Filing the motion before the twenty-one day period expires warrants denying the motion. See O’Daniel v. Bd. of Comm’rs of Monroe County, 916 So. 2d 40, 41 (Fla. 3d DCA 2005) (trial court properly struck motion for attorney’s fees under section 57.105 that was filed and served without giving the opposing party an opportunity to withdraw or amend its defenses).
In this case, New Hampshire filed its motion for attorney’s fees under section 57.105 on the same day it served the motion on Marino. Therefore, New Hampshire’s motion for attorney’s fees is denied for failing to comply with section 57.105(4).
Accordingly, it is hereby ORDERED AND ADJUDGED that the Final Judgment entered by the trial court is AFFIRMED. The parties’ motions for attorney’s fees are DENIED.
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1Marino argues that Lummus’ new affidavit demonstrates that disputed issues of material fact existed, and therefore the trial court should not have granted summary judgment. As discussed below, however, Marino is precluded from raising this argument on appeal.
2It was only after the trial court granted New Hampshire’s motion for summary judgment that Marino argued to it in her motion for rehearing that disputed issues of material fact precluded granting summary judgment.
