ANTHONY NICHOLSON, APPELLANT,
v.
JOHN G. ARIKO, JR., APPELLEE
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Anthony Nicholson appeals a supplemental final judgment distributing partnership funds. The court reverses and remands because the trial court violated the appellate mandate by improperly crediting Ariko for mortgage payments, though the court permits adjustments for amounts partners owed directly to the partnership.
The trial court erred in crediting Ariko $13,095.90 for mortgage payments because this amount was considered in the original mandate which did not require reimbursement. However, the trial court may adjust distributions for amounts owed by the partners directly to the partnership, as such adjustments do not violate the equal distribution mandate and prevent unfair distributions when debts are unequal.
[1] A trial court must strictly comply with the mandate of an appellate court, as compliance is a ministerial act.
[2] A trial court errs by deviating from an appellate court's mandate to provide a credit or set-off that was not contemplated or ordered in the original mandate.
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Join FLexlaw to unlock all legal intelligence“The mandate of an appellate court is a final judgment in the cause, and compliance is a ministerial act to be performed by the trial court.”
Establishes that trial courts must strictly comply with appellate mandates without deviation
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Join FLexlaw to unlock all legal intelligenceNicholson and Ariko had an interest in a partnership. In an earlier appeal, the court remanded for entry of judgment based on a 1985 agreement requiri…
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PETERSON, Judge.
Anthony Nicholson appeals a supplemental final judgment distributing to him $134,-629.58 as his share of funds from a partnership in which he and John G. Ariko, Jr., had an interest. We reverse.
In an earlier appeal, this case was remanded to the trial court for entry of judgment based on a 1985 agreement requiring distribution of the partnership funds on an equal basis. Nicholson v. Ariko, 539 So. 2d 1141 (Pla. 5th DCA 1989), rev. denied, 548 So. 2d 662 (Fla.1989). Thereafter, the trial court issued a supplemental final judgment, which was in accordance with this court’s directions to distribute the proceeds equally.
However, the order provided for an adjustment of the equal distributions by amounts that had been debited by the partnership for money each partner owed to the partnership. The court reduced Nicholson’s distribution by $18,303.48 and Ariko’s distribution by $2,716.67, the amounts owed by them to the partnership and deducted by it before making the distribution.
Additionally, the trial court gave Ariko a credit of $13,095.90 for mortgage payments made by him that were owed by the partnership. Nicholson asserts that the set-offs and the credit for mortgage payments were erroneous since this court’s mandate required an equal distribution.
The mandate of an appellate court is a final judgment in the cause, and compliance is a ministerial act to be performed by the trial court. Berger v. Leposky, 103 So. 2d 628 (Fla.1958); O.P. Corp. v. Village of North Palm Beach, 302 So. 2d 130 (Fla.1974); Milton v. Keith, 503 So. 2d 1312 (Fla. 3d DCA 1987); Thibodeau v. Sarasota Memorial Hospital, 449 So. 2d 297 (Fla. 1st DCA 1984); and Robbins v. Pfeiffer, 407 So. 2d 1016 (Fla. 5th DCA 1981). It is the duty of the trial court to enforce the mandate and not to stray from it. Florida Power & Light v. Flichtbeil, 513 So. 2d 1078 (Fla. 5th DCA 1987), rev. denied, 520 So. 2d 585 (Fla.1988).
Review of the earlier mandate indicates that this court concluded that the parties agreed to share profits and deficits equally. The $13,095.90 represents the amount paid by Ariko for his share of mortgage payments owed by the partnership. This court was aware of this amount and considered it prior to issuing its earlier mandate, and no reimbursement was required in that mandate. It was, therefore, error to give Ariko a credit for that amount.
However, the amounts owed by the partners to the partnership are a different matter. The mandate issued by this court remanded the matter to the trial court for entry of judgment based upon the 1985 “50-50 agreement”, but we do not believe that the mandate precluded the trial court from making a distribution in accordance with the partnership’s debits for amounts owed to it by the distributee partners. It is not unusual for amounts owed by partners to a partnership to be unequal. Failure to consider the difference in the amounts would result in an unfair distribution to the partner who had maintained an indebtedness to the partnership smaller than that of his equal partner. We, therefore, remand again to the trial court for entry of a final judgment that results in an equal distribution to the partners.
However, the distributions should be adjusted in accordance with the respective debits made by the partnership for the amounts owed to it by the partners.
REVERSED and REMANDED.
DANIEL, C.J., and HARRIS, J., concur.
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Ivory Wilcox and Ana Lee Wilcox v. Hotelerama Assocs., Ltd., 619 So. 2d 444 (Fla. 3d DCA 1993)…; Berger v. Leposky, 103 So. 2d 628 (Fla.1958); Milton v. Keith, 503 So. 2d 1312 (Fla. 3d DCA 1987). A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape, or form. Nicholson v. Ariko, 565 So. 2d 843 (Fla. 5th DCA 1990); Florida Power and Light v. Flichtbeil, 513 So. 2d 1078 (Fla. 5th DCA 1987), review denied, 520 So. 2d 585 (Fla.1988); Home Savings & Loan Association of Florida v. Epperson, 427 So. 2d 246 (Fla. 4th DCA 1983); Stuart v. Hertz Co…
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Snyderburn v. Honorable John D. Moxley, 652 So. 2d 945 (Fla. 5th DCA 1995)…included the existence of a contract between attorney and client and entitlement to some amount of fees from the proceeds of the recovery. . From a procedural standpoint, this case is nothing like Williams. It is more similar to Nicholson v. Ariko, 565 So. 2d 843 (Fla. 5th DCA 1990), where this court held that even though not expressly discussed in the court's opinion, an issue brought to the court and considered by the court and whose resolution is implicit in the court's decision is within the mandate and…
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Superior Garlic Int'l, Inc. v. E & A Produce Corp., 934 So. 2d 484 (Fla. 3d DCA 2004)…ilable to enforce an established right, but not to establish that right.”) “The mandate of an appellate court is a final judgment in the cause, and compliance [therewith] is a ministerial act to be performed by the trial court.” Nicholson v. Ariko, 565 So. 2d 843 (Fla. 5th DCA 1990). Upon issuance of a mandate, an automatic stay resulting from the posting of a supersedeas bond is automatically lifted, and the judgment creditor has the right to either execute on the judgment or proceed against the supersedeas…1 / 2
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- O. P. Corp. & Wiggs & Maale Constr. Co., Inc. v. The Vill. OF N. Palm Beach, 302 So. 2d 130 (Fla. 1974)
- Berger v. Leposky, 103 So. 2d 628 (Fla. 1958)
- Robbins v. The Honorable Frederick Pfeiffer, 407 So. 2d 1016 (Fla. 5th DCA 1981)
- Milton v. R.C. Keith, 503 So. 2d 1312 (Fla. 3d DCA 1987)
- Thibodeau v. Sarasota Mem'l Hosp. & All Risk Corp. of Fla., 449 So. 2d 297 (Fla. 1st DCA 1984)
- Florida Power AND Light v. Reinhold Flichtbeil, 513 So. 2d 1078 (Fla. 5th DCA 1987)
- Nicholson v. Ariko, 539 So. 2d 1141 (Fla. 5th DCA 1989)