Fourth DCA Rejects Appeal Based on Law of Case

The Fourth District Court of Appeal ruled today in McPherson v. Bittner, a case in which the appellant challenged the lower court’s award of fees to the Appellee.  In a previous appeal, the same Appellant had already challenged the lower court’s grant of fees in the underlying action, and that appeal resulted in affirmation, as well as an order finding entitlement to appellate fees.  The Appellant now appealed the subsequent order granting those fees from the lower court.  The Fourth District rejected the appeal, finding that entitlement was already the law of the case, and no material change was offered.   Of note is Judge Warner’s special concurrence, in which she primarily addresses the Appellant’s repeated contention that appellate fees are not authorized in paternity actions , and makes a case that the Court should recede from Gilbertson v. Boggs, 743 So.2d 123, 128-9 (Fla. 4th DCA 1999) to find that 742.045 contemplates appellate fees.  It is hard to find fault with Judge Warner’s comparison of the two plus decades of statutory interpretation of F.S. 61.16 and the interpretation of the nearly identical F.S. 742.045.