Wegener v. Florida Department of Insurance

590 So. 2d 455, 1991 Fla. App. LEXIS 11034, 1991 WL 225482

• Court: District Court of Appeal of Florida
• Decided: November 5, 1991
• Docket: No. 90-2134
• Status: Published

Opinion

PER CURIAM.

This is an appeal from the denial of appellants’ motion to vacate a judgment for attorney’s fees and an appeal and cross-appeal from an order awarding attorney’s fees.¹ We affirm.

The trial court correctly denied the appellant’s motion to vacate the final judgment of attorney’s fees based on newly discovered evidence, filed pursuant to Florida Rule of Civil Procedure 1.540(b)(2). The evidence offered by appellant in support of the motion does not constitute newly discovered evidence within the meaning of the rule. See Dade Nat’l Bank v. Kay, 131 So.2d 24, 26-27 (Fla. 3d DCA), cert. denied, 135 So.2d 746 (Fla.1961); see also Pingree v. Quaintance, 394 So.2d 161, 163 (Fla. 1st DCA 1981).

The trial court awarded appellate attorney’s fees pursuant to this court’s mandate in International Bankers Insurance Co, v. Wegener, 548 So.2d 683 (Fla. 3d DCA 1989). By cross-appeal International Bankers Insurance Co. disputes the Wegeners’ entitlement to any attorney’s fees at all. The question of entitlement was determined in the prior appeal and is the law of the case. As to the cross-appeal, we affirm.

Appellants’ request for a remand for the making of further findings is unwarranted in light of paragraph 631.181(2)(d), Florida Statutes (1989).²

Affirmed.

1 . The facts of this case are set forth in International Bankers Insurance Co. v. Wegener, 548 So.2d 683 (Fla. 3d DCA 1989), review dismissed, 558 So.2d 20 (Fla.1990).

2 . International Bankers Insurance Co. was placed in liquidation during the pendency of this appeal and the Florida Department of Insurance was appointed Receiver. The Receiver has advised that it has no objection to disposition of this appeal. Nothing contained herein should be construed as determining the priority of appellants’ claims in the receivership proceeding.