EVANSTON INSURANCE COMPANY

v.

HYMAN, SONNY GLASBRENNER, INC.

1 The settling parties also filed a motion seeking confirmation that the assignee had continuing authority to agree to the settlement, which the trial court confirmed by order dated January 3, 2022.

2 Because the order followed the final order in the case and it disposed of the issues before the trial court, we treat it as a final order reviewable under Florida Rule of Appellate Procedure 9.030(b)(1)(A). See Caufield v. Cantele, 837 So. 2d 371, 375 (Fla. 2002). occurrence; that EDIC's payment of its $1 million per occurrence limit was not a voluntary payment; that this payment would fully exhaust EDIC's primary liability policy; that EDIC settled with C&G in good faith; and that "no [c]reditor, interested party or others . . . shall have the right to pursue a claim against [EDIC] in connection with the [settlement]." The settling parties required these findings as part of the settlement. Evanston argues, however, that these findings violate its due process rights, that the trial court made them without any evidentiary basis, and that they approve of what Evanston believes was improper conduct on EDIC's part in partially settling C&G's claim. While we share Evanston's concern with certain language in the order, the fundamental issue underlying Evanston's arguments—and the fundamental question Evanston asks us to decide—is whether the trial court's findings have any binding effect on Evanston and any excess coverage it might owe to satisfy the remainder of C&G's claim. If these findings have no binding effect and do not in any way trigger coverage under Evanston's policy, Evanston's due process and other arguments fall flat. But if, for example, Evanston is bound and precluded from showing in other proceedings that EDIC's underlying coverage was not fully or properly exhausted, and if Evanston cannot take coverage positions adverse to the trial court's findings, it would be appropriate for us to reach the merits of Evanston's arguments. Critically, however, the trial court didn't decide the fundamental issue concerning the effect of its order.3 So we can't either. See Francel v. Douma, 122 So. 3d 969, 969

3 The trial court found only "that the Amended Settlement Agreement does not prejudice Evanston," which is consistent with the principle Evanston cites in its brief that a nonparty to a settlement agreement is ordinarily not bound by its terms. See Maxwell v. Edwards, (Fla. 2d DCA 2013) (quoting Miller v. Miller, 709 So. 2d 644, 645 (Fla. 2d DCA 1998)); Maynard v. Fla. Bd. of Educ., 998 So. 2d 1201, 1207 (Fla. 2d DCA 2009). Further, to the extent that Evanston challenges the trial court's authority to make findings without considering evidence or holding an evidentiary hearing, we note that Evanston did not present any evidence below or request an evidentiary hearing. See Adkison v. Morey, 239 So. 3d 205, 207 (Fla. 1st DCA 2018) ("It is not our function 'to entertain for the first time on appeal, issues which the complaining party could have, . . . but did not, present to the trial court.' " (quoting Fla. Emergency Physicians–Kang & Assocs., M.D., P.A. v. Parker, 800 So. 2d 631, 636 (Fla. 5th DCA 2001))). All parties relied solely on argument, and it was within the trial court's authority to "hear and determine a motion brought by the assignee for approval of . . . the compromise or settlement of a controversy," and to "enter an order granting such motion." See § 727.109(7). Nothing in chapter 727 required the trial court to hold an evidentiary hearing before exercising its authority to approve a settlement. Affirmed. CASANUEVA, J., Concurs. SILBERMAN, J., Concurs specially with opinion. SILBERMAN, Judge, Specially concurring. Although I have some reservations regarding possible alternative interpretations of the trial court's order and its potential impact, I concur in the decision to affirm. The trial court's order specifies that Evanston 345 So. 3d 323, 325 (Fla. 4th DCA 2022); Video Super Stores of Am., Inc. v. Mastriana, 575 So. 2d 326, 326 (Fla. 4th DCA 1991). is not prejudiced by the settlement agreement to which Evanston was not a party, though the order also addresses factual matters to which the settling parties agreed. Evanston objected to the motion to approve settlement, asserting that factual issues remained to be resolved. But at the hearing on the motion, Evanston did not offer any evidence or suggest that such evidence existed which would establish that the stipulated facts were incorrect. Further, Evanston did not establish that the trial court lacked the legal authority to approve the stipulated settlement among the parties to the stipulation. Instead, Evanston argued that the court's approval of the stipulation could impact Evanston's coverage defenses and its liability should any claims be made against it. Evanston also suggested that it may have claims against others, including Everest, should Evanston be liable for excess damages under its policy. Yet Evanston also acknowledged that it "is uncertain at this time whether it possesses any claims against Everest." In summary, based on the record and arguments before us, I agree that Evanston has not established a basis for reversal. Finally, in affirming the trial court's decision, the majority states that "Evanston's arguments would require us to decide a critical issue that the trial court did not." I do not share that concern. The critical issue here is whether the trial court erred in approving the settlement over Evanston's objections. It did not. For these reasons, I concur. Opinion subject to revision prior to official publication.