SHIRLEY A. SLOANE, APPELLANT,
v.
ROBERT DONALD SLOANE, APPELLEE
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In this follow-up appeal, the Fourth District Court of Appeal clarified its prior reversal of the termination of the wife's permanent alimony. The court withdrew its order granting the husband's motion to enforce mandate and affirmed the trial court's requirement that the husband pay back alimony from the original termination date, rejecting both the husband's argument for limited back alimony and the wife's request for attorney's fees.
The court affirmed the trial court's order requiring payment of back alimony from the original termination date, consistent with the prior reversal and remand. The court rejected the wife's claim for attorney's fees, holding that the failure to discuss an issue in an appellate opinion does not mean the issue was not decided, as the per curiam decision determined all issues necessarily involved in the appeal.
[1] An appellate court's per curiam decision is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in t…
[2] An appellate court's prior ruling on the merits of an appeal, which directs reinstatement of a property settlement agreement, implicitly affirms all issues necessarily in…
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Join FLexlaw to unlock all legal intelligence“We now recognize that the wife is correct. We therefore withdraw our order granting the husband's motion to enforce mandate and affirm the trial court's order requiring the payment of back alimony.”
The court's holding that the trial court's back alimony order was proper and consistent with the prior reversal.
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Join FLexlaw to unlock all legal intelligenceThe parties had a property settlement agreement that provided for permanent alimony to the wife. The trial court terminated this alimony, but the Four…
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PER CURIAM.
This case is before us because the parties cannot agree on the meaning of our prior opinion in the case, Sloane v. Sloane, 597 So. 2d 847 (Fla. 4th DCA), rev. denied, 609 So. 2d 40 (Fla.1992). We held that the trial court had erred in terminating the wife’s permanent alimony and reversed and remanded directing the trial court to reinstate the alimony in accordance with the original property settlement agreement. We did not address another issue the wife raised, which was that she should have been awarded attorney’s fees for services rendered in the trial court.
On remand the wife took the position that we had not ruled on attorney’s fees and that the trial court should award them. The husband argued on remand that he should not have to pay back alimony, only that due from when our decision became final.
The trial court ordered the husband to pay back alimony, and the husband then filed a motion to enforce mandate in this court, seeking clarification of that issue. This court entered an order which simply granted the husband’s motion to enforce mandate, and the wife timely moved for clarification or rehearing, arguing that our granting of the husband’s motion to enforce mandate was inconsistent with our opinion reinstating the original property settlement agreement. We now recognize that the wife is correct. We therefore withdraw our order granting the husband’s motion to enforce mandate and affirm the trial court’s order requiring the payment of back alimony.
We do not agree with the wife that she can still seek attorney’s fees for services rendered in the trial court prior to our opinion reversing. The wife raised two points on that appeal. The fact that we did not discuss one of the issues does not mean we did not affirm that issue. New England Ins. Co. v. International Bank of Miami, N.A., 537 So. 2d 1025 (Fla. 3d DCA 1988) (a per curiam decision of the appellate court is the law of the case between the same parties on the same issues and facts, and determines all issues necessarily involved in the appeal, whether mentioned in the court’s opinion or not).
KLEIN, J., and DOWNEY, JAMES C., Senior Judge, concur. SCHWARTZ, ALAN R., Associate Judge, dissents in part with opinion.
SCHWARTZ, ALAN R., Associate Judge,
dissenting in part.
I dissent only from the denial of the wife’s motion for pre-reversal attorney’s fees. In my judgment, our vindication of her position on appeal in Sloane v. Sloane, 597 So. 2d 847 (Fla. 4th DCA), rev. denied, 609 So. 2d 40 (Fla.1992), necessarily implied her entitlement to those fees.
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Floriselva Silva v. U.S. Sec. Ins. Co., 734 So. 2d 429 (Fla. 3d DCA 1999)…s to foreclose any relitigation of this issue on remand. See Barrero v. Ocean Bank, 24 Fla. L. Weekly D446, D447, 729 So. 2d 412, 1999 WL 71766 (Fla. 3d DCA 1999); see also Canty v. State, 715 So. 2d 1033, 1033 (Fla. 1st DCA 1998); Sloane v. Sloane, 625 So. 2d 1236, 1237 (Fla. 4th DCA 1993); New England Ins. Co. v. International Bank of Miami, N.A., 537 So. 2d 1025, 1025-26 (Fla. 3d DCA 1988).2 This is so even where this court specifically was not asked to reach the issues presented here during the Silva I app…
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Nat'l Educ. Ctrs., Inc. v. Ira Kirkland, 678 So. 2d 1304 (Fla. 4th DCA 1996)…ree.” Milton v. Keith, 503 So. 2d 1312, 1313 (Fla.3d DCA 1987); see also Dow Corning Corp. v. Garner, 452 So. 2d 1 (Fla. 4th DCA 1984). “The fact that we did not discuss one of the issues does not mean we did not affirm that issue.” Sloane v. Shane, 625 So. 2d 1236, 1237 (Fla. 4th DCA 1993). Additionally, the award of $37,-109.09 in prejudgment interest contravened the law. In making this award, the trial court took the sum of all payments, both past and not yet due, and calculated interest on that total from…
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Barrero v. Ocean Bank, 729 So. 2d 412 (Fla. 3d DCA 1999)…ding the bank to be entitled to its appellate attorney’s fees and costs necessarily became the law of the case so as to preclude the relitigation of this issue.5 See [*415] Canty v. State, 715 So. 2d 1033, 1033 (Fla. 1st DCA 1998); Sloane v. Sloane, 625 So. 2d 1236, 1237 (Fla. 4th DCA 1993); New England Ins. Co. v. International Bank of Miami, N.A., 537 So. 2d 1025, 1025 (Fla. 3d DCA 1988). We therefore find no error with the trial court’s assessment of reasonable appellate attorney’s fees and costs entered in…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- NEW England Ins. Co. v. Int'l Bank OF Miami, N.A., 537 So. 2d 1025 (Fla. 3d DCA 1988)
- Sloane v. Sloane, 597 So. 2d 847 (Fla. 4th DCA 1992)