Opinion
Nos. 88-325, 89-1099.
October 24, 1989.
Robert J. Van Der Wall, Coconut Grove, George W. Chesrow, Coral Gables, for appellant.
Wallace, Engels, Pertnoy, Martin Solowsky and Jerome H. Shevin and Jean Anne Kneale, and Frank Newman, Miami, for appellee.
Before NESBITT, BASKIN and COPE, JJ.
The application for mandamus, Case No. 89-1099, is received by this court as a motion to enforce its mandate in Gulotty v. Estate of Wilkie, Case No. 88-325, and is granted.
In the latter proceeding reported at 532 So.2d 1335 (Fla. 3d DCA 1988), this court affirmed the trial court's judgment but remanded for leave for the plaintiff to state a cause of action against Wilkie under a theory arising from Wilkie's responsibility as trustee of a dissolved corporation. Wilkie did not file a petition for rehearing nor seek review by the Florida supreme court as it might have on a claim of alleged conflict with Dober v. Worrell, 401 So.2d 1322 (Fla. 1981), after which followed Arky, Freed, et al. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla. 1988). As a result, the estate became bound by this court's decision under the doctrine of the law of the case. Brunner Enters., Inc. v. Department of Revenue, 452 So.2d 550 (Fla. 1984); U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061 (Fla. 1983); State ex rel. Outrigger Club v. Barkdull, 277 So.2d 15, 19 (Fla. 1973); Strazzulla v. Hendrick, 177 So.2d 1 (Fla. 1965); Valsecchi v. Proprietors Ins. Co., 502 So.2d 1310 (Fla. 3d DCA 1987); Escambia County Council on Aging v. Goldsmith, 500 So.2d 626 (Fla. 1st DCA 1986); 3 Fla.Jur.2d Appellate Review § 414 (1984) and cases cited therein.
If Wilkie commingled corporation funds with personal funds, remaining corporation funds could be reached as against the estate of Wilkie since the decedent would have held those funds in a fiduciary capacity. See Beke v. Molnar's Estate, 82 So.2d 595 (Fla. 1955); Hodges v. Logan, 82 So.2d 885 (Fla. 1955); § 607.301, Fla. Stat. (1987).
Arky, Freed was decided December 22, 1988 after our original decision in Gulotty v. Estate of Wilkie, which was released November 1, 1988.
For the foregoing reason, the trial court's order entered April 10, 1989 was contrary to our mandate and consequently is vacated with directions to permit the amended complaint to advance in further proceedings.
It is so ordered.