DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
DIANE LYNN STEPHANOS,
Appellant,
v.
GLENN R. STEPHANOS,
Appellee.
No. 4D21-2782
[March 8, 2023]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach
County; Laura C. Burkhart, Judge; L.T. Case No. 50-2013-DR-007061-XXXX-
SB.
Stephanie L. Serafin, Jane Kreusler-Walsh, and Rebecca Mercier Vargas of
Kreusler-Walsh, Vargas & Serafin, P.A., West Palm Beach, and Joel M. Weissman
of Joel M. Weissman, P.A., West Palm Beach, for appellant.
Zachary R. Potter, Benjamin T. Hodas, and Brendon Carrington of Fisher
Potter Hodas, PL, West Palm Beach, for appellee.
PER CURIAM.
In the second appeal in this matter, Diane Lynn Stephanos (“the former wife”)
appeals a post-remand amended final judgment of dissolution of marriage,
raising two issues on appeal. We affirm with respect to the first issue, and we
dismiss with respect to the second issue.
In her first issue, the former wife argues that, on remand from the first appeal,
the trial court should have entertained her pending alternative claims of unjust
enrichment and breach of contract, because those claims were not decided prior
to the first appeal. However, where a party fails to obtain a ruling on a claim or
motion while the matter is pending before the trial court, the claim or motion is
deemed abandoned. See, e.g., Betancourt v. Sears Roebuck & Co.,
693 So. 2d
680, 683 (Fla. 1st DCA 1997) (“[I]n regard to cases involving claims that are ripe
for adjudication at the time of the hearing, for which claimant failed to produce
evidence or obtain a ruling, this court will consider the claim abandoned and the
issue waived, and will consider the order final and appealable.”); Edwards v.
State,
193 So. 2d 182, 183 (Fla. 4th DCA 1966) (holding defendant abandoned
motion and its contents where motion was filed but defendant failed to present
motion to the trial court for consideration and ruling).
Prior to the first appeal, the former wife pled her claims, proceeded to trial on
those claims, and then asked the trial court not to reach the merits of the claims.
Thus, she abandoned the claims. We note, however, that this case’s facts are
decidedly distinct from cases in which a trial court, on its own initiative, declines
to rule on an issue or claim before it despite a party’s appropriate request(s) for
a ruling. See, e.g., Nat’l City Bank v. Accent Mktg. Assocs., LLC,
82 So. 3d 1060,
1062-63 (Fla. 4th DCA 2011).
In the former wife’s second issue, she argues the trial court erred by
determining that the former husband is entitled to attorneys’ fees. This issue is
not ripe for review because the trial court has not yet set an amount of fees. See
Singer v. Singer,
211 So. 3d 154, 154-55 (Fla. 4th DCA 2017). Accordingly, we
dismiss this portion of the appeal.
Affirmed in part and dismissed in part.
KLINGENSMITH, C.J., and CIKLIN, J., concur.
WARNER, J., dissents with opinion.
WARNER, J., dissenting.
The former wife should not be precluded from seeking the alternative relief
which she requested in her prior pleadings.
In the dissolution of marriage proceedings, the former wife filed a
counterclaim for equitable distribution of property in the divorce, as well as
alleging a breach of contract and unjust enrichment claim based upon an alleged
contract/agreement entered into after a 1996 post-nuptial agreement. In both
the counterpetition for divorce as well the breach of contract and unjust
enrichment claims, she requested that the court award her properties in the
former husband’s name or over which he maintained control. Thus, these were
simply alternative theories for a distribution of property.
During the proceedings, the trial court entered summary judgment declaring
that the 1996 post-nuptial agreement was invalid due to the parties’
reconciliation. The case then proceeded to a trial which consisted mainly of
testimony regarding the valuation of various properties and the conduct of the
parties. In the final judgment, the court decided the property issues on equitable
distribution principles, giving an unequal distribution to the former wife due to
her contributions and the former husband’s conduct. The court specifically
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stated that it was not ruling on the breach of contract or unjust enrichment
claims.
The former husband appealed, and this court reversed, concluding that the
1996 post-nuptial agreement was enforceable as to the property division. See
Stephanos v. Stephanos,
299 So. 3d 37, 40 (Fla. 4th DCA 2020). On remand,
the former wife asserted that she should now be allowed to pursue her alternative
relief. The former husband objected, claiming that this was beyond the mandate
of this court. He also claimed that the former wife must be considered to have
abandoned her claims, because she submitted the proposed final judgment
which included the court’s specific refusal to rule on the contract and unjust
enrichment claims. By failing to cross-appeal, he argued she abandoned her
claim.
I disagree that there can be any abandonment of the claim under these
circumstances. The former wife had made alternative claims for relief: 1)
equitable distribution of the property; 2) breach of the 2003 contract which
would allow her to claim properties; and 3) unjust enrichment by which she also
claimed the same properties. The submission of the proposed final judgment
with the express exclusion of the second and third claims must be considered
her election of the remedy of equitable distribution pursuant to the dissolution
of marriage count. An election of remedies is not an abandonment of the claim.
When the remedy proves unsuccessful on appeal, the party is not precluded from
pursuing alternatives on remand. See Smith v. Frank Griffin Volkswagen Inc.,
645 So. 2d 585, 588 (Fla. 1st DCA 1994); see also Atl. Nat’l Bank v. Tworoger,
554 So. 2d 565, 568 (Fla. 4th DCA 1989) (holding that appellees were not
precluded from seeking attorney’s fees on alternate basis after their award of
attorney’s fees was reversed in the prior appeal, because “[u]nder such
circumstances there never could have been a double recovery, preclusion of
which is the purpose of the election of remedies doctrine”).
The trial court did not rule on the issues presented in the breach of contract
and unjust enrichment counts, because it had divided the property using
equitable distribution principles. The former wife could not have succeeded in
appealing the failure to rule on an issue not necessary to the court’s disposition.
The trial court concluded that our mandate did not permit the trial court on
remand to consider anything but enforcement of the 1996 agreement. But
because the issues of the contract claim and unjust enrichment claims were not
ruled on in the original final judgment or presented in the appeal, our mandate
could not have foreclosed those issues. See Nat’l City Bank v. Accent Mktg.
Assocs., LLC,
82 So. 3d 1060, 1063-64 (Fla. 4th DCA 2011) (finding that trial
court was not precluded from considering due process issue on remand, where
the appellate court had not considered the issue and the trial court had not ruled
on it at the prior trial).
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I would hold that the trial court is not precluded from considering the breach
of contract and unjust enrichment claims. Thus, I would reverse for further
proceedings. I agree, however, that the appeal of the order determining
entitlement to attorney’s fees should be dismissed.
* * *
Not final until disposition of timely filed motion for rehearing.
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