If at first you don't succeed: understanding judicial doctrines of finality.
From time to time, we will be confronted with the finality of an adverse judgment or opinion. In that situation, the question arises: What, if anything, can be done? Both at the trial and appellate level, the related doctrines of the law of the case, res judicata, and collateral estoppel enforce the finality of a court's work and discourage relitigation. (4) But these doctrines, which are founded in decisional law, contain exceptions. This article offers guidance for distinguishing among the law of the case, res judicata, and collateral estoppel, and for determining at what point in the litigation each doctrine of finality may be asserted or avoided.
In the Trial Court
As an initial matter, it is worth noting that the preliminary work of a trial court in a case lacks finality. The parties to a case may litigate many issues as they work their way toward a settlement or a trial, and the trial court has inherent authority to reconsider its orders before rendition of the final judgment. (5) The trial court's initial rulings on an issue do not establish the law of the case and will not prevent the court from revisiting an issue. (6) Similarly, no procedural rule prevents a party from requesting, or a court from granting, reconsideration of preliminary rulings.
From the perspective of the appellate court, the trial court has very broad discretion to reconsider its preliminary rulings, and the trial court's refusal to reconsider a prior ruling will generally not be reviewed on appeal. (7) In fact, if the cause proceeds to a trial, a litigant who unsuccessfully moved in limine to exclude evidence must generally still raise a timely objection to the admission of that evidence at trial to preserve the issue for review. (8) With certain exceptions, it is only in an appeal from a final judgment that any of the trial court's preliminary rulings may be reviewed, and then only if the objection was preserved and the ruling had an impact on the final judgment. (9)
On the topic of finality, the Supreme Court has stated, "Once the litigation is terminated and the time for appeal has run, that action is concluded for all time. There is one exception to this absolute finality, and this is Rule 1.540, which gives the court jurisdiction to relieve a party from the act of finality in a narrow range of circumstances." (10) Although Fla. R. Civ. P. 1.540 provides a procedural mechanism for undoing a judgment, the requirements of this rule are best addressed in a separate article.
If the final judgment or order of the lower court is challenged, the appellate court's standard of review provides a certain degree of finality to the work of the trial court. Broadly speaking, the trial court's factual findings are accorded greater deference than its rulings on questions of law. (11) Beyond this, it is often said that the judgment of the trial court "becomes" final when the time expires to file an appeal or when the appellate process is concluded. (12) However, this statement of "finality" is generally made as a guide to ascertaining the date of finality, which, in turn, determines the timeliness of subsequent litigation (for example, whether the applicable statute of limitations has run). (13) To determine the extent to which a final judgment precludes subsequent litigation, one must look to the judicial doctrines of the law of the case, res judicata, and collateral estoppel.
The Law of the Case
The first judicial doctrine of finality to consider is that of the law of the case. The outcome of a direct appeal may be that the case is remanded to the trial court in whole or in part. In the litigation that follows within the same case, the law of the case will require that those "questions of law actually decided on appeal must govern the case in the same [appellate] court and the trial court, through all subsequent stages of the proceedings." (14) Under this doctrine, the trial court, on remand, will be "bound to follow prior rulings of the appellate court as long as the facts on which such decision [is] based continue to be the facts of the case." (15) In fact, the appellate court, too, upon a subsequent appeal, will be bound by its prior rulings on those issues actually raised and on which the facts have remained the same, except that the appellate court need not adhere to a prior, incorrect ruling where to do so would constitute a "manifest injustice." (16)
Several features of this doctrine require emphasis. First, unlike res judicata, the doctrine is limited to litigation within the same case. It arises when an appellate court reaches the merits of some aspect of the case but remands the cause to the trial court for further consideration; in these circumstances, questions settled by the appellate court become the law of the case both on remand and in any subsequent appeal. (17)
Second, the doctrine is limited to those issues "actually decided on appeal." Notably, a per curiam affirmance can establish the law of the case as to those issues raised and decided in the prior appeal because the appellate court is understood to have examined and considered those issues presented. (18) The Florida Supreme Court, however, has appropriately limited this principle. As the court explained in Florida Department of Transportation v. Juliano, 801 So. 2d 101, 108 (Fla. 2001), when a prior appellate court gives "no explanation for its decision, a subsequent appellate court is not bound by the law of the case unless a determination concerning the propriety of the trial court's order is necessarily inconsistent with every possible correct basis for the earlier rulings of the appellate court." Thus, taking Juliano as an example, a brief opinion affirming the denial of summary judgment may do little to establish the law of the case because there might have been multiple issues that precluded the entry of summary judgment. (19)
Furthermore, the Florida Supreme Court has confirmed that "actually decided" means those issues "'actually presented and considered on a former appeal.'" (20) This can include those issues that were "implicitly addressed or necessarily considered" in the appellate court's prior decision. (21) Whether a panel of judges, in deciding an appeal, implicitly or necessarily considered certain issues may become a matter of some debate on remand in the trial court and in any subsequent appeal. (22) For example, should a party raise an unpreserved evidentiary issue on appeal, the appellate court might reverse and remand for a new trial on other grounds. In these circumstances, it would be difficult to infer anything from the appellate court's silence regarding the evidentiary issue, as the court may have decided either that the issue did not present a fundamental error or that it was unnecessary to address the unpreserved issue in light of the reversal.
Another feature of the law of the case doctrine is that it is more flexible in its application than res judicata and collateral estoppel. A trial court is only bound to adhere to the law of the case if the facts on which the appellate court's decision was based continue to be the facts of the case. (23) The appellate court will likewise be bound by its prior decision only to the extent that the facts have remained the same. (24) Finally, the doctrine includes a manifest injustice exception. As the Supreme Court explained in Beverly Beach Properties, Inc. v. Nelson, 68 So. 2d 604, 608 (Fla. 1953), "We may change 'the law of the case' at any time before we lose jurisdiction of a cause and will never hesitate to do so if we become convinced, as we are in this instance, that our original pronouncement of the law was erroneous and such ruling resulted in manifest injustice."
Res Judicata--Claim Preclusion
Like the law of the case doctrine, the doctrine of res judicata enforces finality by discouraging relitigation of issues previously decided. Unlike the law of the case doctrine, res judicata, also called "claim preclusion," applies only once a final judgment or order on the merits has been entered in a previous lawsuit. Res judicata simply refers to a "thing," or issue, having been "definitively settled by judicial decision." (25) The extent to which a judgment is binding in other courts, forums, or jurisdictions is beyond the scope of this article. However, a general outline is offered to explain those situations in which the doctrine of res judicata applies.
Several conditions must be met before a party can invoke res judicata. The Florida Supreme Court has articulated the doctrine as follows:
A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action. (26)
Thus, res judicata bars not only those claims that were raised, but also any claims that could have been raised in the prior action. Decisional law has emphasized each element of this definition, requiring, as an initial matter, 1) a judgment, (27) 2) on the merits, 3) in a former suit. (28) Beyond these preliminary requirements, application of res judicata requires that certain similarities exist between the previous action and the new one. These similarities, often called the "four identities," are "1. Identity in the thing sued for. 2. Identity of the cause of action ... 3. [Identity] of persons and of parties to the action. 4. Identity of the quality in the persons for or against whom the claim is made...." (29) If these conditions are present, any point raised and decided in the former suit "cannot again be drawn in question in any future action between the same parties." (30) As a consequence, any future suit on the same claim, or any claim that could have been litigated in that action, is barred.
Res judicata enforces finality by preventing the parties to a judgment from returning to court on the same cause of action or on any matter that could have been raised between the same parties. Once a judgment becomes final, and assuming it is not set aside, that judgment is deemed conclusive as to those matters that could have been litigated, thereby preventing either party from effectively undoing the judgment through relitigation.
The Florida Supreme Court has distinguished the doctrine of res judicata from the law of the case doctrine as follows: "Where successive appeals are taken in the same case there is no question of res judicata, because the same suit, and not a new and different one, is involved. Under these circumstances, the doctrine of the law of the case applies." (31) Hence, unlike the law of the case doctrine, res judicata does not depend on appellate review for its application. "Ordinarily, a determination that has become final in a prior case will be given preclusive effect even if it has not been subjected to appellate review." (32) On the other hand, when a judgment has yet to be entered and the parties remain in litigation within the same suit, the law of the case doctrine--rather than res judicata--would apply to preclude relitigation of those issues previously decided on appeal.
Another feature of res judicata worth noting is that its application depends on the facts in the prior case. A change in the facts may give rise to a distinct claim--one that could not have been litigated during the prior action--in which case collateral estoppel rather than res judicata may apply. The courts have explained that "[r]es judicata extends only to the facts and conditions as they existed at the time the prior court rendered the prior judgment." (33) However, if the new claim is one that could have been raised based on the facts as they existed in the prior case, then res judicata will function to bar the claim. (34)
Lastly, although res judicata "has a more binding effect" (35) than the law of the case, courts will not invoke the doctrine "where it will work an injustice." (36) Thus, like the law of the case doctrine and collateral estoppel, res judicata will not be applied where it would defeat the ends of justice.
Collateral Estoppel--Issue Preclusion
Another doctrine of finality to consider, one which is related to res judicata, is that of collateral estoppel, also referred to as "issue preclusion." "'[C]ollateral estoppel prevents identical parties from relitigating identical issues that have been determined in a prior litigation.'" (37) In Holt v. Brown's Repair Service, Inc., 780 So. 2d 180, 182 (Fla. 2d DCA 2001), the Second District Court of Appeal explained collateral estoppel as follows:
[F]or the doctrine of collateral estoppel to apply, an identical issue must be presented in a prior proceeding; the issue must have been a critical and necessary part of the prior determination; there must have been a full and fair opportunity to litigate that issue; the parties in the two proceedings must be identical; and the issues must have been actually litigated.
Moreover, for collateral estoppel to apply, the prior matter must have been "fully litigated and determined in a contest that results in a final decision of a court of competent jurisdiction." (38) The common element shared by collateral estoppel and res judicata is the entry of a final judgment or order. (39) Obtaining appellate review is not a prerequisite to applying either doctrine. What is necessary for either doctrine to apply is the existence of a final judgment or order, and the entry of a final judgment distinguishes both res judicata and collateral estoppel from the doctrine of the law of the case.
Unlike res judicata, collateral estoppel will apply even if the two causes of action are different. (40) In distinguishing collateral estoppel from res judicata, this difference is worth emphasizing. Because collateral estoppel applies in a subsequent cause of action, one must consider that the subsequent claim is distinct from the first action, otherwise res judicata would apply to bar the claim as a whole. Assuming res judicata does not apply, collateral estoppel functions to bar, not the claim as a whole, but those issues that were litigated in the first action. The Supreme Court has explained this important distinction:
[U]nder res adjudicata a final decree of judgment bars a subsequent suit between the same parties based upon the same cause of action[,] ... while the principle of estoppel by judgment is applicable where two causes of action are different, in which case the judgment in the first suit only estops the parties from litigating in the second suit issues ... common to both causes of action and which were actually adjudicated in the prior litigation. (41)
One scholar has proposed that the term "issue preclusion" be used instead of collateral estoppel, and that the term "claim preclusion" be used in place of res judicata. (42) In practice, this is a helpful distinction, as it emphasizes the impact of each doctrine. Although the courts have observed that res judicata also functions to bar issues, as a practical matter there seems to be little point in stating that an "issue" is barred when in fact the claim as a whole is barred.
To distinguish collateral estoppel from res judicata, consider the following example: In M.C.G. v. Hillsborough County School Board, 927 So. 2d 224, 225 (Fla. 2d DCA 2006), two parents brought a claim against the Hillsborough County School Board alleging that their autistic child, who was in a full-time home education program, was entitled to speech therapy services for the 2004-05 school year. The administrative law judge had previously denied a similar claim brought by the parents involving the 2003-04 school year. (43) The Second District Court of Appeal recognized that the second claim was a distinct cause of action from the original claim because it involved a different time period. Thus, although res judicata did not apply to bar the second claim, which was a distinct cause of action, collateral estoppel applied to estop the parties from relitigating an issue that had been decided against them. (44)
Successiveness in Criminal Cases
A brief comment is warranted regarding the concept of "successiveness" in criminal litigation. Notions of "successiveness" are widely invoked in the context of postconviction cases. In the context of general civil litigation, though, the overly broad term "successiveness" does not refer to any distinct doctrine and should probably be avoided. In the postconviction setting, it is clear that the law of the case, res judicata, and collateral estoppel can each be invoked to bar repetitive claims, but these doctrines are not ideally suited to the postconviction context, in which varied claims are brought as collateral proceedings under Fla. R. Civ. P. 3.800 and 3.850. (45) Instead, repetitive postconviction claims are usually simply denied as successive. Lastly, it should be mentioned that a separate concept of "successiveness"--the prohibition against double jeopardy--effectively bars the state from filing successive "claims," or criminal charges, against defendants.
In conclusion, it is worth observing
that Fla. R. Civ. P. 1.110(d) lists res judicata and estoppel as affirmative defenses. Additionally, on remand, the law of the case is a matter of which the trial court (or the appellate court in a later appeal) must take judicial notice. (46) These doctrines are not jurisdictional. Thus, in most circumstances, a party must ascertain the applicable doctrine and specifically identify to the court the claim or issue that is sought to be barred. On the other hand, a party hoping to avoid application of one of these doctrines is free to emphasize that they are grounded in decisional law and will not be applied where to do so would constitute a manifest injustice.
(1) Restatement (Second) of Judgments, Introduction at 1 (1982).
(3) See Kippy Corp. v. Colburn, 177 So. 2d 193, 196 (Fla. 1965).
(4) A separate doctrine, that of stare decisis, ensures stability by obligating courts to adhere to precedent. See Strand v. Escambia County, 992 So. 2d 150, 159 (Fla. 2008).
(5) Hunter v. Dennies Contracting Co., 693 So. 2d 615, 616 (Fla. 2d D.C.A. 1997).
(6) Empire Club, Inc. v. Hernandez, 974 So. 2d 447, 449 (Fla. 2d D.C.A. 2007).
(7) Hunter, 693 So. 2d at 616.
(8) See Swan v. Fla. Farm Bureau Ins. Co., 404 So. 2d 802 (Fla. 5th D.C.A. 1981); Philip J. Padovano, Florida Appellate Practice [section]8.5, at 152-53 (2007 ed.).
(9) See Fla. R. App. P. 9.130; Wolfe v. City of Miami, 154 So. 196 (Fla. 1934).
(10) Miller v. Fortune Ins. Co., 484 So. 2d 1221, 1223 (Fla. 1986).
(11) See, e.g., Liner v. Workers Temp. Staffing, Inc., 990 So. 2d 473, 476 (Fla. 2008).
(12) See Silvestrone v. Edell, 721 So. 2d 1173, 1175 & n.2 (Fla. 1998).
(13) See, e.g., id. at 1175-76.
(14) Fla. Dep't of Transp. v. Juliano, 801 So. 2d 101, 105 (Fla. 2001) (emphasis added).
(15) Id. at 106 (emphasis added).
(16) Strazzulla v. Hendrick, 177 So. 2d 1, 3-4 (Fla. 1965).
(17) Dicks ex rel. Montgomery v. Jenne, 740 So. 2d 576, 577 (Fla. 4th D.C.A. 1999).
(18) See State Comm'n on Ethics v. Sullivan, 430 So. 2d 928, 932 (Fla. 1st D.C.A. 1983); cf. Bloco, Inc. v. Porterfield Oil Co., 990 So. 2d 578, 581 (Fla. 2d D.C.A. 2008) (holding per curiam affirmance did not establish law of the case as to issue not decided in the prior appeal).
(19) See Juliano, 801 So. 2d at 108-09.
(20) Juliano, 801 So. 2d at 106 (quoting U.S. Concrete Pipe v. Bould, 437 So. 2d 1061, 1063 (Fla. 1983)).
(22) See Middleton v. State, 41 So. 3d 357, 360-61 (Fla. 1st D.C.A. 2010).
(23) Juliano, 801 So. 2d at 102.
(24) Dicks ex rel. Montgomery, 740 So. 2d at 577.
(25) Black's Law Dictionary 1312 (7th ed. 1999).
(26) Kimbrell v. Paige, 448 So. 2d 1009, 1012 (Fla. 1984) (quoting Wade v. Clower, 114 So. 548, 552 (Fla. 1927)).
(27) Dade Eng'g Corp. v. C. Hunt Enters., Inc., 972 So. 2d 1096 (Fla. 2d D.C.A. 2008).
(28) Juliano, 801 So. 2d at 105, 107-08.
(29) Yulee v. Canova, 11 Fla. 9, 56 (Fla. 1865).
(30) 2 Black on Judgments [section]504 (2d ed.).
(31) Juliano, 801 So. 2d at 105 (citation omitted).
(32) M.C.G. v. Hillsborough County Sch. Bd., 927 So. 2d 224, 227 (Fla. 2d D.C.A. 2006).
(33) Saadeh v. Stanton Rowing Found., Inc., 912 So. 2d 28, 31 (Fla. 1st D.C.A. 2005).
(34) See Topps v. State, 865 So. 2d 1253, 1255 (Fla. 2004).
(35) Id. at 1255 n.2.
(36) Flesche v. Interstate Warehouse, 411 So. 2d 919, 924 (Fla. 1st D.C.A. 1982); see also State v. McBride, 848 So. 2d 287, 291 (Fla. 2003).
(37) Bradenton Group, Inc. v. State, 970 So. 2d 403, 408 (Fla. 5th D.C.A. 2007) (quoting Hicks v. Hoagland, 953 So. 2d 695, 698 (Fla. 5th D.C.A. 2007)).
(38) City of Oldsmar v. State, 790 So. 2d 1042, 1046 n.4 (Fla. 2001); see also Dep't of Health & Rehabilitative Servs. v. B.J.M., 656 So. 2d 906, 910 (Fla. 1995).
(39) Accent Realty of Jacksonville, Inc. v. Crudele, 496 So. 2d 158, 160 (Fla. 3d D.C.A. 1986).
(40) Bradenton Group, Inc., 970 So. 2d at 408.
(41) Gordon v. Gordon, 59 So. 2d 40, 44 (Fla. 1952) (emphasis added).
(42) A. Leo Levin & Susan M. Leeson, Issue Preclusion Against the United States Government, 70 Iowa L. Rev. 113 (1984) (citing Ruth Bader Ginsburg, The Work of Professor Allan Delker Vestal, 70 Iowa L. Rev. 13, 16 (1984)).
(43) M.C.G., 927 So. 2d at 226.
(44) Id. at 227-28.
(45) See generally State v. McBride, 848 So. 2d 287 (Fla. 2003).
(46) See Airvac, Inc. v. Ranger Ins. Co., 330 So. 2d 467, 469 (Fla. 1976).
Brandon R. Christian is an associate with Vaka Law Group in Tampa, where he handles civil appeals and insurance coverage matters. He graduated cum laude from Stetson University College of Law. Before joining Vaka Law Group, he served as a staff attorney to Judge Chris W. Altenbernd of the Second District Court of Appeal.
This column is submitted on behalf of the Appellate Practice Section, Raoul G. Cantero III, chair, Kristin A. Norse, editor, and Brandon Christian, Chris McAdams, and Bretton C. Albrecht, assistant editors.
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|Title Annotation:||Appellate Practice|
|Author:||Christian, Brandon R.|
|Publication:||Florida Bar Journal|
|Date:||May 1, 2011|
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