A question of law not litigated on appeal may not constitute law of the case.
Unlike res judicata, which applies to subsequent actions between the same parties on the same cause of action, the law of the case doctrine is triggered when successive appeals are taken in the same case. The law of the case doctrine holds that the questions of law decided on appeal must govern the case in the same court and the trial court through all subsequent stages of the proceedings. The Florida Supreme Court reiterated the principle decided in FL Dept. of Trans. v. Juliano, 801 So. 2d 101 (Fla. 2001) and expressly addressed the misconception that the law of the case doctrine could bar consideration of a legal question that was not previously raised and decided on appeal but, given the facts of the case, could have been raised in a prior appeal. The law of the case doctrine is not applicable to a legal question that has not yet been decided on appeal. Accordingly, the First District erred in concluding that, because the plaintiff did not raise in a prior appeal the issue of whether notice had properly been provided, the issue was barred by the doctrine of the law of the case.
Case Law Alert - 2nd Qtr 2012