MARINE MIDLAND BANK CENTRAL, A NEW YORK CORPORATION, APPELLANT,
v.
ARTHUR J. COTE AND ELIZABETH R. COTE, AND HARVEY C. ALTES, APPELLEES
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Marine Midland Bank appeals an order awarding attorney's fees to Harvey Altes in an indemnity contract dispute arising from wrongful repossession. The court reverses the attorney's fees award, holding that the trial court exceeded its authority by revisiting a matter that was not appealed in the prior proceeding and thus became law of the case.
The trial court exceeded its authority. Because Altes failed to appeal the judgment in the cross-claim that denied attorney's fees, that judgment became law of the case and could not be revisited. The amended order awarding attorney's fees is reversed.
[1] A trial court exceeds its authority when it acts beyond the limits prescribed by an appellate court's mandate.
[2] A party's failure to appeal a specific issue in a prior proceeding results in that issue becoming the law of the case.
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Join FLexlaw to unlock all legal intelligence“When a case is appealed and the appellate court acts by issuing its mandate, the trial court must follow the dictate of the mandate and should not stray from it.”
Establishes the fundamental principle that trial courts are bound by appellate mandates
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Join FLexlaw to unlock all legal intelligenceCote defaulted on a car loan from Marine Midland Bank. The bank hired Altes to repossess the vehicle. Cote sued both the bank and Altes for trespass a…
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DAUKSCH, Chief Judge.
This is an appeal from an order awarding attorney’s fees in an indemnity contract case. The question on appeal is whether the trial court exceeded its authority to act in the case after a mandate was issued in a prior appeal. We hold that the trial court went beyond the limits allowed by the mandate and thus we reverse the order awarding attorney’s fees.
This matter began as a suit alleging wrongful repossession of a motor vehicle by a bank and its agent, the repossessor. Apparently, Cote owed Marine Bank for an automobile and defaulted in payments, so the bank hired Altes to go and get the car. Altes got the car and Cote sued the bank and Altes for trespass. Cote won a verdict against the bank and Altes and the trial court entered judgment for $2,500.00 compensatory and $2,500.00 punitive damages. Judgment was also entered for Altes in his cross-claim against the bank. That cross-claim action was based upon the allegation that the bank had agreed to hold harmless or indemnify Altes in any action arising out of his services in taking possession of the automobile. The judgment for Altes against the bank was for $5,000.00 —the exact amount of the judgment for Cote in the trespass action. There was a claim for attorney’s fees for Altes against the bank in the cross claim but no judgment other than the $5,000.00. Altes and the bank appealed the Cote judgment and it was reversed1 but Altes did not appeal his judgment against the bank, which judgment failed to award him attorney’s fees.
After the mandate was issued in the appealed case, the trial court entered an “Amended Order and Final Judgment” awarding attorney’s fees from the bank to Altes. This is the appealed order here. When a case is appealed and the appellate court acts by issuing its mandate, the trial court must follow the dictate of the mandate and should not stray from it. The parties have the right to appeal any matter by which they may be aggrieved and their failure to do so acts as an acceptance of the propriety of the matter. If no appeal is taken on one point but the case is appealed on another point, then the first point becomes “law of the case" and upon a reversal that law of the case remains as correct and cannot be revisited. Airvac, Inc. v. Ranger Insurance Co., 330 So. 2d 467 (Fla.1976).
Here the appellee, Altes, failed to appeal the judgment in the cross-claim which did not award him attorney’s fees against the bank and under the general dictates of Airvac, he is foreclosed from bringing up the matter for reconsideration; because he failed to speak up in the first appeal, he must forever hold his peace. See Wingold v. Horowitz, 382 So. 2d 377 (Fla. 3d DCA 1980).
The amended order awarding attorney’s fees to Altes from Marine Bank is reversed. In all other respects, the Amended Order and Final Judgment is affirmed.
AFFIRMED IN PART; REVERSED IN PART.
COBB and UPCHURCH, JJ., concur. . Marine Midland Bank-Central v. Cote, 351 So. 2d 750 (Fla. 1st DCA 1977).
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Sami Behar v. Jefferson Nat'l Bank at Sunny Isles, 519 So. 2d 641 (Fla. 3d DCA 1987)…recloses Behar from presenting defenses which could have been raised in a prior appeal. See Wroton v. Wash-Bowl, Inc., 456 So. 2d 967 (Fla. 2d DCA 1984); Malicoat v. LaChappelle, 390 So. 2d 481 (Fla. 4th DCA 1980); Marine Midland Bank Cent. v. Cote, 384 So. 2d 658 (Fla. 5th DCA 1980). Similarly, Behar’s argument that he withdrew from the conspiracy and should not be liable because he did not personally cause Jefferson National’s damages is another attempt to present a foreclosed defense. See Harless. Cf. Wood…
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State v. Stabile, 443 So. 2d 398 (Fla. 4th DCA 1984)…ell as of all issues upon which appeal could have been taken, but which were not appealed. Alford v. Summerlin, 423 So. 2d 482 (Fla. 1st DCA 1982); Airvac, Inc. v. Ranger Insurance Co., 330 So. 2d 467 (Fla.1976); Marine Midland Bank Central v. Cote, 384 So. 2d 658 (Fla. 5th DCA 1980). A per curiam affirmance does establish the law of the case. State Commission on Ethics v. Sullivan, 430 So. 2d 928 (Fla. 1st DCA 1983). In this instance, however, our affirmance without opinion left the parties in the same postu…
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Florida Power AND Light v. Reinhold Flichtbeil, 513 So. 2d 1078 (Fla. 5th DCA 1987)…rest from the date of its original order. When a case is appealed and the appellate court acts by issuing its mandate, [*1080] the trial court must follow the dictate of the mandate and should not stray from it. Marine Midland Bank Central v. Cote, 384 So. 2d 658 (Pla. 5th DCA 1980). Compliance by the trial court with the appellate mandate is a purely ministerial act. Robbins v. Pfeiffer, 407 So. 2d 1016 (Fla. 5th DCA 1981). In the previous appeal, this court reversed the award of appraiser’s fees and did n…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Airvac, Inc. v. Ranger Ins. Co., 330 So. 2d 467 (Fla. 1976)
- Marine Midland Bank-Central v. Cote, 351 So. 2d 750 (Fla. 1st DCA 1977)
- Morry Wingold & W & G Holdings Ltd. v. Horowitz, 382 So. 2d 377 (Fla. 3d DCA 1980)