Strazzulla v. Hendrick, No. 33968

CourtUnited States State Supreme Court of Florida
Writing for the CourtROBERTS; DREW
Citation177 So.2d 1
PartiesPhilip J. STRAZZULLA, Frank Strazzulla, and Dominic Strazzulla, Co-partners d/b/a Strazzulla Brothers Company, and Juan Flores, Petitioners, v. Paul F. HENDRICK, Respondent.
Decision Date30 June 1965
Docket NumberNo. 33968

Page 1

177 So.2d 1
Philip J. STRAZZULLA, Frank Strazzulla, and Dominic Strazzulla, Co-partners d/b/a Strazzulla Brothers Company, and Juan Flores, Petitioners,
v.
Paul F. HENDRICK, Respondent.
No. 33968.
Supreme Court of Florida.
June 30, 1965.

Earnest, Pruitt & Schulle, West Palm Beach and Sam Daniels, Miami, for petitioners.

Burdick & Silvian, West Palm Beach, for respondent.

ROBERTS, Justice.

This cause is before the court on a petition for certiorari to review a decision of

Page 2

the District Court of Appeal, Second District, on direct-conflict grounds. We have assumed jurisdiction because of the apparent conflict, generating confusion and uncertainty, in the decisions of this court referred to hereafter concerning the doctrine of 'the law of the case'; See Billingham v. Thiefl, 109 So.2d 763.

The decision which we here review, Hendrick v. Strazzulla, Fla.App.1964, 168 So.2d 156, was entered by the appellate court on the second appeal of the case to it. On the first appeal, a verdict and judgment for the defendants in a tort action arising out of an automobile collision was affirmed. Hendrick v. Strazzulla, Fla.App.1960, 125 So.2d 589. This court, however, on direct-conflict certiorari quashed the judgment of affirmance on a point no longer relevant (since the error did not recur on the second trial), and the cause was remanded. Hendrick v. Strazzulla, Fla.1961, 135 So.2d 1.

On the second trial, verdict and judgment were again for the defendants. The plaintiff again appealed, challenging the propriety of the trial judge's charge to the jury on the provisions of Section 317.30, Fla.Stat.1959, F.S.A., which prohibits passing within 100 feet of an 'intersection', as defined in the Act. The giving of antipass instructions under the statute had been assigned as error on the first appeal; however, on that appeal the appellate court without discussion declined to sustain the assignment, stating merely that 'The remaining assignment has been examined and we find no error.' Hendrick v. Strazzulla, supra, 125 So.2d at p. 591. In the certiorari proceedings in this court referred to above, the giving of anti-pass instructions was not reviewed by this court.

On the second appeal, the Second District Court of Appeal reconsidered the question of the propriety of the instruction concerning the anti-pass statute, Section 317.30, supra, and held that the statute was inapplicable under the facts and circumstances of the case and that the giving of the instruction was reversible error. In refusing to sustain the defendant-appellees' contention that the doctrine of 'the law of the case' precluded a reconsideration and reversal on this point, the appellate court said (168 So.2d at page 161):

'With this contention we cannot agree. The facts and circumstances on this appeal are materially different from those on the former appeal; but even if we now should find that we were in error on that point of the case, we have the power to correct it.'

Cited in support of the above quoted statement was this court's decision in Beverly Beach Properties v. Nelson, Fla.1953, 68 So.2d 604, 41 A.L.R.2d 1071.

It is strongly urged here by petitioners, who were the successful defendants at the trial level, that the appellate court's decision and the Beverly Beach Properties decision are directly in conflict with prior decisions of this court respecting the doctrine of the law of the case; and, indeed, it does appear that there are two distinct lines of cases on this subject which are sufficiently in conflict to invoke our direct-conflict jurisdiction.

Early in the jurisprudence of this state it was established that all points of law adjudicated upon a former writ of error or appeal became 'the law of the case' and that such points were 'no longer open for discussion or consideration' in subsequent proceedings in the case. McKinnon v. Johnson, 1909, 57 Fla. 120, 48 So. 910, citing Wilson v. Fridenberg, 21 Fla. 386, and other cases. In accord with this statement, either by the use of the same or by the use of similar language, are the following decisions: Florida East Coast Ry. v. Geiger, 1914, 66 Fla. 582, 64 So. 238; Utley v. City of St. Petersburg, 1935, 121 Fla. 268, 163 So. 523; Family Loan Co. v. Smetal Corporation, 1936, 123 Fla. 900, 169 So. 48, 49; United States Gypsum Co. v. Columbia Casualty

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Co., 1936, 124 Fla. 633, 169 So. 532; Haddock v. State, 1940, 141 Fla. 132, 192 So. 802; Oates v. New York Life Ins. Co., 1940, 144 Fla. 744, 198 So. 681; Butler v. Major Holding Corporation, 1941, 145 Fla. 549, 200 So. 96; Westinghouse Electric Corp v. Carol Florida Corp., Fla.App.1963, 154 So.2d 339.

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129 practice notes
  • Johnson v. Dugger, No. 89-3195
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 21, 1990
    ...state, as well as to avoid 'piecemeal' appeals and to bring litigation to an end as expeditiously as possible." Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla.1965). We have ourselves recognized that this doctrine "operates to create efficiency, finality and obedience within the judicial syste......
  • Tu v. State, No. 147
    • United States
    • Court of Appeals of Maryland
    • September 1, 1993
    ...as a matter of right." In re Adoption of Baby Girl "C", 511 So.2d 345, 349 (Fla.Dist.Ct.App.2d Dist.1987) (quoting Strazzula v. Hendrick, 177 So.2d 1, 4 (Fla.1965)). A party ought not be able to reserve for presentation, on sequential appeals, as many legal theories as it has or as it may b......
  • Engle v. Liggett Group, Inc., No. SC03-1856.
    • United States
    • United States State Supreme Court of Florida
    • December 21, 2006
    ...ruling that has become the law of the case where a prior ruling would result in a `manifest injustice.'") (quoting Strazzulla v. Hendrick, 177 So.2d 1, 4 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, th......
  • Massie v. University of Florida, No. BN-98
    • United States
    • Court of Appeal of Florida (US)
    • June 29, 1990
    ...Appellate courts have inherent power to correct their own errors when necessary to avoid a manifest injustice. In Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965), the supreme court settled the dispute deriving from its decisions in Family Loan Co. v. Smetal, 123 Fla. 900, 169 So. 48 (1936) (......
  • Request a trial to view additional results
129 cases
  • Johnson v. Dugger, No. 89-3195
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • August 21, 1990
    ...state, as well as to avoid 'piecemeal' appeals and to bring litigation to an end as expeditiously as possible." Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla.1965). We have ourselves recognized that this doctrine "operates to create efficiency, finality and obedience within the judicial syste......
  • Tu v. State, No. 147
    • United States
    • Court of Appeals of Maryland
    • September 1, 1993
    ...as a matter of right." In re Adoption of Baby Girl "C", 511 So.2d 345, 349 (Fla.Dist.Ct.App.2d Dist.1987) (quoting Strazzula v. Hendrick, 177 So.2d 1, 4 (Fla.1965)). A party ought not be able to reserve for presentation, on sequential appeals, as many legal theories as it has or as it may b......
  • Engle v. Liggett Group, Inc., No. SC03-1856.
    • United States
    • United States State Supreme Court of Florida
    • December 21, 2006
    ...ruling that has become the law of the case where a prior ruling would result in a `manifest injustice.'") (quoting Strazzulla v. Hendrick, 177 So.2d 1, 4 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, th......
  • Massie v. University of Florida, No. BN-98
    • United States
    • Court of Appeal of Florida (US)
    • June 29, 1990
    ...Appellate courts have inherent power to correct their own errors when necessary to avoid a manifest injustice. In Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965), the supreme court settled the dispute deriving from its decisions in Family Loan Co. v. Smetal, 123 Fla. 900, 169 So. 48 (1936) (......
  • Request a trial to view additional results

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