ANDREW DONALD GUMBERG, APPELLANT,
v.
LORRAINE ABRUZZO GUMBERG, APPELLEE
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Andrew Gumberg appeals an order awarding his former wife's trial counsel $23,000 in attorney's fees for an unsuccessful challenge to a prenuptial agreement. The court reverses, holding that a prior appellate decision in the same case established as the law of the case that such fees should be denied, and the successor trial judge was bound by that prior holding.
The trial judge's order must be reversed because the prior appellate affirmance established the denial of the $23,000 in attorney's fees as the law of the case, which cannot be modified by a successor judge. The former wife's attorneys are bound by the position taken in the earlier appeal and the court's opinion affirming the denial.
[1] An affirmed prior appellate ruling constitutes the law of the case and cannot be modified by a successor trial judge.
[2] Parties, including their attorneys, are bound by the positions taken and rulings made in prior appellate proceedings.
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Join FLexlaw to unlock all legal intelligence“the affirmed order has become the "law of the case" and cannot be modified by the successor trial judge”
Establishes the core legal principle that a prior appellate affirmance binds successor judges
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Join FLexlaw to unlock all legal intelligenceIn a prior appeal in Gumberg v. Gumberg, the trial court had denied the former wife $23,000 in attorney's fees for challenging the prenuptial agreemen…
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PER CURIAM.
Andrew Gumberg appeals a trial court order granting his former wife’s trial counsel $23,000 for a portion of attorney’s fees incurred in an unsuccessful challenge to a prenuptial agreement. We reverse because the successor trial judge incorrectly interpreted this court’s opinion in Gumberg v. Gumberg, 818 So. 2d 682 (Fla. 4th DCA 2002), where we affirmed an order denying the same portion of attorney’s fees.
The trial court’s 2001 order under review in Gumberg was not completely clear as to whether the trial court’s “reasonable” fee finding of $127,562.54 was intended to include the $23,000 in disputed attorney’s fees. The former wife, however, effectively conceded in that appeal that the trial court order denied the $23,000 and we affirmed. The trial court order reviewed in Gumberg first expressly found that the former wife should not be entitled to recover $23,000 in attorney’s fees for her unsuccessful challenge to the prenuptial agreement as “there was no basis to attack the agreement.” The same order, however, also provided that the hourly rate charged, amounting to $127,522.54, was “reasonable.” The parties conceded, both at the hearing and in the former wife’s subsequent appeal, that the trial court intended to subtract the $23,000 in attorney’s fees from the $127,522.54 potential fee and to award the former wife $104,522.54.
Here, as in Peterson v. Peterson, 715 So. 2d 977, 978 (Fla. 4th DCA 1998), the affirmed order has become the “law of the case” and cannot be modified by the successor trial judge. Specifically, in the earlier appeal, the former wife argued that the trial court abused its discretion in denying that $23,000 portion of her prayer for attorney’s fees. After the former wife’s appeal, this court reversed certain portions of the order, specifically imposing post-judgment interest on the former wife, however “affirm[ing] on all other points raised.” Gumberg, 818 So. 2d at 682. We can discern no basis to conclude that, in affirming, we did not intend to affirm as to that issue.
The former wife’s attorneys, although not counsel in the earlier appeal, are bound by the position taken and by our opinion in that appeal. See Peterson, 715 So. 2d at 978.
Therefore, the final judgment in favor of Patterson & Maloney is reversed and we remand for modification accordingly.
STONE, WARNER and STEVENSON, JJ., concur.
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