       Third District Court of Appeal
                               State of Florida

                         Opinion filed February 17, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                 No. 3D15-64
                          Lower Tribunal No. 07-3515
                             ________________


                            Nelson Francois, etc.,
                                    Appellant,

                                        vs.

              University of Miami, a Florida Corporation,
                                    Appellee.


     An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Abby Cynamon, Judge.

      Loreen I. Kreizinger and Justine S. Anagnos (Ft. Lauderdale), for appellant.

      Fowler White Burnett and Marc J. Schleier and Christopher E. Knight, for
appellee.


Before SUAREZ, C.J., and ROTHENBERG and EMAS, JJ.

      SUAREZ, C.J.
       Appellant Nelson Francois, as Personal Representative of the Estate of

Caroline Francois (“Francois”) appeals the denial of his Motion for Relief

from

Judgment. We reverse.

       This case follows our decision in University of Miami v. Francois, 76 So. 3d

360 (Fla. 3d DCA 2011)1 in which we determined that a settlement agreement

Francois had entered into with defendants Angelica Martinez, R.N. (“Nurse

Martinez”) and Medical Staffing Network Holdings, Inc. (“Medical Staffing”) had

the effect of also releasing his claims against the University of Miami (the

“University”). Id. at 366-67. Importantly, in that prior appeal we specifically

stated:

              Francois conceded that he did not plead or seek
              reformation of the Release and Settlement Agreement at
              the trial court level, nor does he contend on appeal that a
              reformation was effectuated when the trial court entered
              its final order following rehearing. See, e.g. Rucks v.
              Pushman, 541 So. 2d 673 (Fla. 5th DCA 1989). Thus we
              do not consider whether reformation could have been
              utilized to achieve a different result.

Id. at 363 n. 2.

       Following that opinion, Francois filed a separate action in the trial court

captioned Francois as Personal Representative v. Martinez, 12-26993 CA 01. In


1 The factual background of the wrongful death claims at issue in this proceeding
are set forth in that opinion and are not repeated here.

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that proceeding, an Agreed Final Order was entered which reformed the release to

reflect Francois’, Nurse Martinez’s and Medical Staffing’s actual intent, which was

to settle Francois’ claim against Nurse Martinez and Medical Staffing and to

except the claims against the University from the scope of the release.

        Thereafter, Francois filed his Motion for Relief from Judgment in this case,

which the University opposed. After hearing, the trial court entered an order

denying the Motion for Relief from Judgment. In that Order, the trial court found

that:

              [T]he Third District determined that [Francois]’s cause of
              action against the University of Miami was extinguished
              by the clear an unambiguous terms of the Release and
              Settlement Agreement. … In doing so, the Third District
              held that it was improper for this Court to consider parole
              evidence in an attempt to discern an intent which was
              already clearly expressed by the terms of the Release and
              Settlement Agreement. The Third District’s ruling
              constitutes the ‘law of the case’ and must be followed.

This ruling was in error. As in Banks v. Orlando Regional Healthcare, 955 So. 2d

604 (Fla. 5th DCA 2007), the trial court in the independent reformation action,

Francois v. Martinez, supra, “successfully reformed the original release to reflect

the parties’ intent not to release subsequent tortfeasors or transfer any causes of

action against subsequent tortfeasors. That reformation related back to the date of

the original release.” Banks, 955 So. 2d at 608. The trial court’s refusal to




                                          3
consider parole evidence was also error. See, Abernathy v. Nat’l Union Fire Ins.,

717 So. 2d 196, 198 (Fla. 5th DCA 1998) and cases cited therein.

      The trial court’s conclusion that this Court’s prior ruling precluded

consideration of the reformed settlement agreement based on the law of the case

doctrine was also incorrect. As indicated above, this Court expressly did not

consider what impact a claim of reformation would have on the release at issue.

Consequently, the mandate did not include any ruling on that question and

Francois was free to pursue the remedy of an independent action for reformation of

the release.

      As explained in Florida Dept. of Trans. v. Juliano, 801 So. 2d 101 (Fla.

2001):

               The doctrine of the law of the case requires that questions
               of law actually decided on appeal must govern the case in
               the same court and the trial court, through all subsequent
               stages of the proceedings. See Greene v. Massey, 384 So.
               2d 24, 28 (Fla. 1980) (“All points of law which have
               been adjudicated [e.s.] become the law of the case and
               are, except in exceptional circumstances, no longer open
               for discussion or consideration in subsequent proceedings
               in the case.”); Strazzulla v. Hendrick, 177 So. 2d 1, 3
               (Fla. 1965). Under the law of the case doctrine, a trial
               court is bound to follow prior rulings of the appellate
               court as long as the facts on which such decision are
               based continue to be the facts of the case. See McGregor
               [v. Provident Trust Company], 162 So. [323] at 327
               [(Fla. 1935)]. Moreover, even as to those issues actually
               decided, the law of the case doctrine is more flexible than
               res judicata in that it also provides that an appellate court
               has the power to reconsider and correct an erroneous


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            ruling that has become the law of the case where a prior
            ruling would result in a “manifest injustice.” Strazzulla,
            177 So. 2d at 5.8. As to the scope of the law of the case
            doctrine, this Court in U.S. Concrete [Pipe], 437 So. 2d
            [1061] at 1063 [(Fla. 1983)], explained that the doctrine
            is ‘limited to rulings on questions of law actually
            presented and considered on a former appeal.’ [bold
            added] (Emphasis supplied.) See also Two M. Dev. Corp.
            v. Mikos, 578 So. 2d 829, 830 (Fla. 2d DCA 1991). By
            reaffirming the principle articulated in earlier decisions
            that the law of the case doctrine is limited to questions
            of law actually presented and considered on a former
            appeal, [e.s.]

            U.S. Concrete was consistent with prior cases from this
            Court. See, e.g., Greene, 384 So. 2d at 28; Strazzulla, 177
            So. 2d at 3; Finston v. Finston, 160 Fla. 935, 37 So. 2d
            423, 424 (1948). Additionally, the law of the case
            doctrine may foreclose subsequent consideration of
            issues implicitly addressed or necessarily considered by
            the appellate court's decision. See Dade County
            Classroom Teachers' Ass'n v. Rubin, 238 So. 2d 284, 289
            (Fla. 1970); Dicks v. Jenne, 740 So. 2d 576, 578 (Fla. 4th
            DCA 1999). 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.’ Greene, 384 So. 2d at 27. As stated in
            Wilder v. Punta Gorda State Bank, 100 Fla. 517, 129 So.
            865, 866 (1930), the law of the case doctrine ‘has no
            applicability to, and is not decisive of, points
            presented upon a second writ of error that were not
            presented upon a former writ of error and
            consequently were not before the appellate court for
            adjudication.’ [e.s.]

Id. at 105-106. Thus, not only did this Court not implicitly rule on the issue of

reformation, it expressly did not. Under those circumstances, the law of the case

doctrine had no application and the trial court should have considered and granted


                                        5
Francois’ Motion for Relief from Judgment.2 Likewise, Francois’ reformation

action was not filed “too late,” nor did it constitute an attempt to “evade” this

Court’s prior rulings.

      Not only was the “law of the case” inapplicable below, Francois appears to

have followed the exact prescription to obtain reformation which the Fifth District

described in its opinion in Rucks v. Pushman, 541 So. 2d 673 (Fla. 5th DCA 1989)3

2 For the same reason, the language of such cases as Dober v. Worrell, 401 So. 2d
1322, 1324 (Fla. 1981), McAllister v. Breakers Seville Assoc., Inc., 41 So. 3d 405
(Fla. 4th DCA 2010) and Robinson v. Weiland, 8988 So. 2d 1110 (Fla. 5th DCA
2008) and their progeny, including Connecticut General Life Ins. Co. v. Dyess, 588
So. 2d 1045 (Fla. 5th DCA 1991), is simply inapplicable to this case.
3 The Court there stated: “While the summary judgment in this case is procedurally
correct, if in truth and in fact the true settlement agreement between the victim and
the initial tortfeasor was intended by those parties thereto to be only a settlement of
the victim's injuries resulting from the initial tortfeasor and was not intended to
compensate the victim for injuries resulting from the negligence of the health care
providers, and should not in law or in equity result in a transfer to the initial
tortfeasor of the victim's cause of action against the health care providers, the
victim should, in justice and fairness and law, be given an opportunity to establish
that fact. However, consistent with the trial court's decision, we hold that the
victim's motion to reform made in this law action for the recovery of damages was
inadequate for that purpose. The cause of action, if any, the victim may have
against the initial tortfeasor to reform the victim's release should be asserted in a
separate equitable reformation action. If, because of its form, the victim's release
has resulted in an unintended assignment of rights by operation of law, we know of
no reason why the initial tortfeasor cannot merely reassign those rights to the
victim by a properly drawn legal document or, if there is a controversy as to the
intent of those parties, why the victim cannot resolve that controversy in a separate
equitable action against the initial tortfeasor for reformation and, when equitable
relief has been obtained, assert such cause of action against the health care
providers. [e.s.] This opinion is not intended to preclude such action by the victim
if appropriate and desired and otherwise possible. Rucks v. Pushman, 541 So. 2d
673, 676 (5th DCA 1989)

                                          6
and which it affirmed in Banks, 955 So. 2d at 608. Application of those principles

here demonstrates that the trial court’s conclusion that Francois had not shown a

sufficient “mistake” to obtain relief under Rule 1.540, Florida Rules of Civil

Procedure was erroneous. In fact, some cases support the notion that Francois

could simply have moved for reformation of the release in this case and did not

need to file his independent reformation action. Wells Fargo Bank, N.A. v. Giesel,

155 So. 3d 411 (Fla. 1st DCA 2014) (no reason for bank to file entirely new action

to achieve result of reformation when trial court could simply vacate judgment);

Kearney v. Auto-Owners Ins. Co., 2007 WL 2298031 at *7 (M.D. Fla. 2007) (“In

Florida, an independent action for reformation is not required to obtain relief from

mutual mistake”) 4

      As to the position taken by the University, we reconfirm the statement in

Alexander v. Kirkham, 365 So. 2d 1038 (Fla. 3d DCA 1978):

            It must be pointed out that the defendants in this case
            were neither parties to the release agreement, gave any
            consideration for it, or changed their position in any way
            in reliance upon its terms. They simply seek to be the
            donee beneficiaries of an enormous benefit, freedom
            from tort liability, gratuitously placed in their laps
            through the inadvertence of third parties. On these facts,
            there is therefore no legal or equitable reason to interfere


4 Although not expressly addressed by the trial court, we agree with Francois that
no “permission” from this Court was required for purposes of his claim of
reformation, especially where this Court expressly did not rule on such a claim.
Ohio Casualty Group v. Parrish, 350 So. 2d 466, 468-69 (Fla. 1977).

                                         7
             with the effectuation of the conceded intention of the
             parties to the agreement themselves.

Id. at 1040-41.

      Reversed and remanded for proceedings consistent with this opinion.




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