EMAS, J.
Tony Arce ("Arce") seeks reversal of an order awarding appellate attorney's fees and costs in favor of Wackenhut Corporation ("Wackenhut"). Wackenhut cross-appeals, seeking reversal of the lower court's order vacating a prior order determining it was entitled to trial court fees and costs. For the reasons that follow, we affirm the lower court's order awarding appellate fees and costs in favor of Wackenhut, and reverse the lower court's order vacating the trial fees entitlement order, and remand for further proceedings.
Arce was employed by Wackenhut from March 2003, until he resigned on July 22, 2003. According to Arce, he was routinely praised and commended for his work performance
In September 2003, Arce applied for employment with the Federal Bureau of Investigation ("FBI") and was conditionally accepted for employment in May 2004, pending a background and employment history check. In June 2004, the FBI rescinded Arce's employment offer, citing problems uncovered with his employment history.
After allegedly learning that Wackenhut had made "blatantly false and derogatory statements to the FBI" about him, Arce filed suit against Wackenhut for defamation and tortious interference with an employment contract. Wackenhut denied any wrongdoing and served a proposal for settlement on March 2, 2006, in the amount of $1,500.00. Arce never responded to the proposal for settlement, and on October 30, 2008, summary judgment was entered in favor of Wackenhut and against Arce on all claims, with prejudice.
Arce appealed. During the pendency of the appeal, Wackenhut moved for an award of trial court attorney's fees and costs, pursuant to its proposal for settlement, for which the lower court granted entitlement on August 26, 2009 (the "entitlement order").
On August 31, 2010, the appeal was concluded and this Court affirmed the summary judgment in Wackenhut's favor. This Court also granted Wackenhut's motion for appellate attorney's fees and costs, remanding the cause to the trial court "to fix amount."
Up until this point, Arce had never filed any response or objection to Wackenhut's two motions for attorney's fees and costs, either with the trial court or with this Court. However, after the hearing on the motion to determine the amount of fees and costs, and at the trial court's direction, Arce filed, on March 16, 2012, a motion to vacate the trial fees entitlement order on the basis that the proposal for settlement was not made in good faith. The trial court granted the motion to vacate, finding the nominal proposal for settlement was not made in good faith.
Arce appealed, asserting that the trial court on remand could (and should) have disallowed Wackenhut's appellate fees and costs once the trial court determined that the proposal for settlement was not made in good faith. Arce maintains that the trial court had the authority to do so despite this Court's granting appellate fees and remanding for the trial court "to fix amount." Wackenhut contends that Arce waived this argument by failing to object, respond, or otherwise raise the claim of lack of good faith with this Court when Wackenhut initially moved for appellate fees and costs, and in failing to seek rehearing or clarification of this Court's order granting the motion and remanding for the trial court to fix the amount.
Wackenhut cross-appeals the trial court's order vacating the prior entitlement order, asserting the trial court was bound by the law of the case following this Court's order granting appellate fees, remanding to fix amount, and issuance of the mandate.
We begin with an analysis of the pertinent law in the area of offers of judgment in Florida. Pursuant to section 768.79, Florida Statutes (2006):
Similarly, Florida Rule of Civil Procedure 1.442 provides:
Once the offeror establishes a right to entitlement, the trial court may in its discretion disallow an award of fees and costs if it determines that the proposal was not made in good faith. See TGI Friday's, Inc. v. Dvorak, 663 So.2d 606 (Fla.1995). It is the burden of the offeree (in this case, Arce) to establish a lack of good faith on the part of the offeror (Wackenhut) before the court may disallow an award to which an offeror is otherwise entitled. Camejo v. Smith, 774 So.2d 28, 29 (Fla. 2d DCA 2000).
It is evident from a plain reading of the statute and the rule that the issue of good faith is not a factor to be considered by the court in determining the amount
While we agree with Arce that a claim of lack of good faith is not ripe unless and until an offeror establishes entitlement to a fee award, we disagree with Arce's contention, under the circumstances of this case, that he was permitted to raise this claim at a hearing ordered for the purpose of fixing the amount of fees and costs.
The record before this Court establishes that Arce failed to respond or object to Wackenhut's motion for appellate fees and costs. Arce contends he did not file any pleading in response to Wackenhut's motion because he was not contesting statutory entitlement (which he concedes Wackenhut established). Rather, Arce asserts, he sought to contest the good faith nature of the proposal, and intended to do so at the subsequent hearing before the trial court.
However, once this Court issued its order granting the motion and remanding with the single directive to the trial court "to fix [the] amount" of fees and costs, Arce acted at his own peril in failing to seek rehearing, reconsideration or clarification whether this Court's order foreclosed his ability to raise lack of good faith on remand. In failing to seek a clarification of this Court's order, Arce and the trial court were bound by the plain meaning of the order, and the mandate that followed, which implicitly and necessarily excluded any consideration of lack of good faith and became law of the case. Barrero v. Ocean Bank, 729 So.2d 412 (Fla. 3d DCA 1999). The trial court correctly determined that, in light of this Court's order, Arce could not raise, and the trial court could not consider, Arce's claim of lack of good faith.
Our reasoning also disposes of the cross-appeal. Because our order granting fees and costs for the appeal, and remanding for the trial court to fix amount, necessarily
We therefore affirm the order awarding appellate attorney's fees and costs. We reverse the order vacating the order of entitlement to trial court attorney's fees and costs, and remand with instructions to reinstate the order of entitlement and to hold a hearing to fix the amount of fees and costs without consideration of any claim of lack of good faith.
Affirmed in part, reversed in part, and remanded with directions.