          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                 _____________________________

                         No. 1D18-2958
                 _____________________________

RABIA ARDAN MORRIS,

    Appellant,

    v.

WINBAR LLC,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Leon County.
Karen Gievers, Judge.

                          April 9, 2019


JAY, J.

     For over forty years, Appellant and, occasionally, her
customers, utilized a narrow alley to park behind her hair salon.
The alley was property owned by Appellee’s predecessor in title,
whose own buildings also bordered it. When Appellee purchased
the previous owner’s property, the alley was included.
Straightaway, Appellee installed bollards across the entrance to
the alley, blocking all access to it.

    In response, Appellant filed a complaint for a prescriptive
easement across the alley. Following a jury trial, the trial court
entered a “Final Judgment Awarding Prescriptive Easement to
Plaintiff,” finding Appellant was entitled “to a prescriptive
easement for ingress and egress for the purpose of vehicular access
over and across the Defendant’s property.” In paragraph 2 of the
judgment, the trial court ruled that “[t]he prescriptive easement
awarded herein is for the benefit of the Plaintiff for the properties
described in the deeds . . . .” (Emphasis added.) But in paragraph
3, the trial court further ruled that “[t]he prescriptive easement is
personal to the Plaintiff,” citing Stackman v. Pope, 28 So. 3d 131
(Fla. 5th DCA 2010). (Emphasis added.) It ordered Appellee to
provide Appellant access to the property described in the
prescriptive easement and to “not block the use by the Plaintiff of
said easement.” This Court per curiam affirmed the final judgment
without a written opinion. See Winbar LLC v. Morris, 242 So. 3d
337 (Fla. 1st DCA 2018) (table).

     Post-judgment, Appellee removed only those bollards that
were placed directly across the entrance to its alley. In their place,
Appellee installed an electric gate, offering Appellant a remote
control with which she could open the gate and enter the alley.
Appellant refused to accept the remote control. Instead, under the
same case number as her original action, she filed a Motion to
Enforce Final Judgment alleging that Appellee had taken steps to
unreasonably interfere with the use of her prescriptive easement.
At the hearing on her motion, Appellant maintained that the
easement awarded to her in the original final judgment was not
just a prescriptive easement; it was, in fact, an “appurtenant”
prescriptive easement. Therefore, the easement ran not only to
her, but to her customers, and to her assigns and successors in
interest. Appellee, on the other hand, relying on the limiting
language emphasized above in paragraph 3, urged that the
easement was personal to Appellant and, accordingly, was an
easement “in gross.”

     On May 30, 2018, the trial court entered its “Order on
Plaintiff’s Motion to Enforce.” It considered the fact that “the
appellate court affirmed the final judgment in resolving the issues
on appeal[.]” Consequently, it found that Appellant’s “motion to
enforce the final judgment must be denied, as the motion cannot
be granted without modifying the final judgment that is already
final, as the law of the case.”

     For the reasons expressed below, we conclude that the order
on review must be reversed.

                                  2
     “[T]he law-of-the-case doctrine ‘bars consideration only of
those legal issues that were actually considered and decided in a
former appeal.’” Delta Prop. Mgmt. v. Profile Invs., Inc., 87 So. 3d
765, 767 (Fla. 2012) (quoting Fla. Dep’t of Transp. v. Juliano, 801
So. 2d 101, 107 (Fla. 2001)). As one commentator has explained:

         When an appellate court has decided a question of
    law, the decision of the court is said to become the law of
    the case. As a general rule, once an issue has been settled
    as the law of the case, it may not be relitigated in the
    lower tribunal or in a subsequent appeal in the same case.
    An exception to the rule allows the appellate court to
    reconsider an earlier appellate decision in the same case
    if that is necessary to prevent a manifest injustice.

         ....

        The preclusive effect of the law of the case doctrine
    applies only to points that were decided in a previous
    appellate proceeding. . . .

         ....

         It is the decision of the appellate court, and not its
    opinion, that becomes the law of the case. Therefore, a per
    curiam decision without an opinion becomes the law of
    the case as to all issues concluded in the appellate
    proceeding in which it was entered, in the same manner
    as a decision supported by an opinion. . . .

Philip J. Padovano, 2 West’s Fla. Prac., Appellate Practice § 20:12
(2018 ed.) (emphasis added) (footnotes omitted).

     Accordingly, this Court’s per curiam opinion affirming the
trial court’s final judgment became the law of the case, but only to
the extent of the granting of the prescriptive easement.

     “A corollary of the law of the case doctrine is that a lower court
is not precluded from passing on issues that ‘have not necessarily
been determined and become law of the case.’” Juliano, 801 So. 2d
at 106 (citation omitted). We conclude that what arose at the


                                  3
hearing on the motion to enforce was a new issue pertaining to the
nature of the prescriptive easement.

      Easements—including prescriptive easements—may be
either appurtenant or in gross. “An easement is in gross and
personal to the holder when it is not appurtenant to other lands or
premises. An easement is appurtenant when the right which it
represents is attached to and belongs with some greater or
superior right as a dominant estate.” N. Dade Water Co. v. Fla.
State Turnpike Auth., 114 So. 2d 458, 461 (Fla. 3d DCA 1959)
(citing Burdine v. Sewell, 109 So. 648 (Fla. 1926)). Significantly,
an appurtenant easement is a permanent easement running with
the land and passes as an incident to it. McCorquodale v. Keyton,
63 So. 2d 906 (Fla. 1953); Esbin v. Erickson, 987 So. 2d 198 (Fla.
3d DCA 2008). The holder of an appurtenant easement “possesses
the ‘dominant tenement’ while the owner of the land against which
the easement exists possesses the ‘servient tenement.’ A ‘dominant
estate’ is the estate that receives the benefit of an easement.” 20
Fla. Jur. 2d Easements § 7 (March 2019) (footnotes omitted). In
contrast, an easement “in gross” is a mere personal interest in the
real estate of another; it is not supported by a dominant estate. N.
Dade Water Co., 114 So. 2d at 461.

     Whether Appellant’s prescriptive easement is “appurtenant”
or “in gross” was not decided in the original judgment as affirmed
by this Court. That question, therefore, is not subject to the law of
the case, and the trial court could have considered it in deciding
Appellant’s motion to enforce without “modifying” the final
judgment.

     Even so, the new issue also sheds light on an ambiguity
appearing on the face of the final judgment. The ambiguity
compels us to reconsider the final judgment to prevent a manifest
injustice.

     “The legal operation and effect of a judgment must be
ascertained by a construction and interpretation of its terms, and
this presents a question of law for the Court.” Boynton v. Canal
Auth., 311 So. 2d 412, 415 (Fla. 1st DCA 1975) (footnote omitted).
“If the language used in a judgment is ambiguous then it may be
construed[.]” Id. Our review is de novo. McCann v. Walker, 852 So.
2d 366, 367-68 (Fla. 5th DCA 2003) (citations omitted) (“[T]he legal
                                 4
operation and effect of a judgment must be ascertained by
construction and interpretation of its terms, and this presents a
question of law.” . . . Questions of law are subject to de novo
review.”).

     As noted above, paragraph 2 of the final judgment awarding
the prescriptive easement expressly provides that the easement is
for “the benefit of [Appellant] for the properties described in the
deeds . . . ,” namely Appellant’s properties. Therefore, by the
definition just expressed, that description would suggest an
appurtenant easement with a dominant tenement in Appellant
and a corresponding servient tenement in Appellee.

     Conversely, paragraph 3 states that “[t]he prescriptive
easement is personal to [Appellant].” That language would propose
an easement in gross. ∗ The trial court’s decision to deny
Appellant’s motion to enforce the final judgment on the basis that
it could not be enforced without modifying its terms effectively
imposed an easement in gross—foreclosing the issue in favor of
Appellee, without affording Appellant the due process necessary to
prove otherwise.

     Therefore, because the nature of the prescriptive easement
was not decided by our affirmance of the final judgment, and to
prevent a manifest injustice to Appellant while protecting both
parties’ rights to due process, we hold the law of the case does not
preclude the trial court from determining whether the prescriptive
easement is appurtenant or in gross. To that end, we reverse the
Order on Plaintiff’s Motion to Enforce and remand the cause to the
trial court for further proceedings consistent with this opinion. On
remand, the trial court may take additional evidence, including
parole evidence, “to explain, clarify or elucidate” the nature of the
permanent easement—either appurtenant or in gross—as granted

    ∗
       The citation to Stackman v. Pope, 28 So. 3d 131 (Fla. 5th
DCA 2010), in that same paragraph adds to the incongruity, as
Stackman stands primarily for the proposition that “[a] party
seeking to establish a private prescriptive easement may not
‘bootstrap’ onto” another’s claim for the same easement, but must
present his or her own evidence to prove the easement. Id. at 134.
That was not the case here.

                                 5
in the final judgment. See, e.g., Quillen v. Quillen, 247 So. 3d 40,
48 (Fla. 1st DCA 2018).

    REVERSED and REMANDED with instructions.

WOLF and OSTERHAUS, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Susan S. Thompson and Andrew J. Power of Smith, Thompson,
Shaw, Minacci, Colón & Power, P.A., Tallahassee, for Appellant.

Kimberly L. King, Edward W. Wood, and Raymond G. Mazzie of
King & Wood, P.A., Tallahassee, for Appellee.




                                 6
