NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED

                                         IN THE DISTRICT COURT OF APPEAL

                                         OF FLORIDA

                                         SECOND DISTRICT

CHERYL PELPHREY-WEIGAND,         )
                                 )
           Appellant,            )
                                 )
v.                               )             Case No. 2D17-1503
                                 )
ROBERT K. WEIGAND,               )
                                 )
           Appellee.             )
________________________________ )

Opinion filed April 17, 2019.

Appeal from the Circuit Court for
Hillsborough County; Laurel Lee,
Judge.

Allison M. Perry of Florida Appeals,
P.A., Tampa, for Appellant.

Elizabeth S. Wheeler of Berg &
Wheeler, P.A., Brandon, for Appellee.


NORTHCUTT, Judge.

              Cheryl Pelphrey-Weigand appeals a single order granting two postmarital

dissolution motions for attorneys' fees and costs filed by her former husband, Robert

Weigand. We reverse the order insofar as it awards fees and costs incurred in the

proceeding on Pelphrey-Weigand's motion to set aside the dissolution judgment.

Otherwise, we affirm.
              In January 2015, during the litigation on his former wife's motion to set

aside the judgment, Weigand moved for an award of fees and costs. He argued

pursuant to section 57.105, Florida Statutes (2014), that Pelphrey-Weigand's allegations

were unsupported by existing facts and otherwise were legally insufficient to support her

request for relief from the judgment. In February 2016, the circuit court denied

Pelphrey-Weigand's motion to set aside the judgment, reserving jurisdiction to rule on

Weigand's fees and costs motion. He amended the motion the following month, again

asserting that he was entitled to fees and costs under section 57.105. The court

conducted a hearing on Weigand's fee motion as amended and, on September 2, 2016,

rendered an order denying it. Weigand did not move for rehearing or appeal the order.

              Meanwhile, two months after the denial of Pelphrey-Weigand's motion to

set aside the divorce judgment, she filed a motion for contempt and to enforce the

judgment. The court denied this motion on September 8, 2016, reserving jurisdiction to

consider Weigand's request for fees and costs incurred defending against it. In late

October 2016, Weigand filed an amended motion for fees and costs related to the

contempt proceeding.

              Also, notwithstanding that the circuit court had previously denied his

motion for fees and costs related to his former wife's effort to set aside the divorce

judgment, in late October 2016 Weigand again moved for fees and costs incurred in that

proceeding. Whereas his prior motion invoked section 57.105, the new motion alleged

his entitlement under section 61.16, Florida Statutes (2016). He later amended this

motion to add an allegation that he was entitled to an award under a prevailing party




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attorneys' fee provision in the parties' marital settlement agreement, which had been

incorporated in their dissolution judgment.

              The order under review granted Weigand's motions for fees and costs for

defending against both the motion to set aside the dissolution judgment and the later

motion for contempt. Prior to the hearing on the fee motions, the circuit court entered

an order rejecting Pelphrey-Weigand's claim that the previous denial of Weigand's

motion for fees and costs in the first proceeding was res judicata as to that entitlement.

The court wrote that "[e]ven assuming arguendo that the Former Husband's Motion is

the 'same exact' motion previously filed, which it is not, res judicata would not apply."

This was error.

              Under principles of res judicata, a final disposition of an action on the

merits bars a subsequent action between the same parties on the same cause of action.

"The policy 'underlying res judicata is that if a matter has already been decided, the

petitioner has already had his or her day in court, and for purposes of judicial

economy, that matter generally will not be reexamined again in any court (except, of

course, for appeals by right).' " Zikofsky v. Mktg. 10, Inc., 

, 523 (Fla

4th DCA 2005) (quoting Topps v. State, 

, 1255 (Fla. 2004)). The

requirements for applying res judicata are commonly described as follows:

              First, a judgment on the merits must have been rendered in
              a former suit. See Ludovici v. McKiness, 

,
              337 (Fla. 3d DCA 1989); e.g., Tyson v. Viacom, Inc., 

1205, 1209 (Fla. 4th DCA 2005) (en banc). Second, four
              identities must exist between the former suit and the suit in
              which res judicata is to be applied: " '(1) identity in the thing
              sued for; (2) identity of the cause of action; (3) identity of the
              persons and parties to the actions; and (4) identity of the
              quality or capacity of the persons for or against whom the


                                              -3-
              claim is made.' " 

Youngblood v.
              Taylor, 

, 505 (Fla. 1956).

Pearce v. Sandler, 

, 966 (Fla. 3d DCA 2017).

              When overruling Pelphrey-Weigand's res judicata argument in this case,

the circuit court did not specify which of the elements were lacking. On appeal,

Wiegand maintains that res judicata was inapplicable for two reasons. First, he points

out that no "judgment" on the merits of his fee and costs request was rendered in a prior

lawsuit. It is true that there was no formal final judgment entered in a separate lawsuit.

But although the res judicata elements are frequently couched in such terms, it is more

accurate to say that res judicata requires a final adjudication on the merits in a prior

proceeding. Thus, for example, when discussing issue preclusion in a postdecretal

proceeding, the Third District has observed that "it does not matter that the issue-

preclusive effect of the earlier adjudication is asserted later in the same case, rather

than in separate, subsequent litigation." Utterback v. Starkey, 

, 305 (Fla.

3d DCA 1996).

              Probably because res judicata principles in general apply
              only to final, appealable determinations, see 33 Fla. Jur. 2d
              Judgments & Decrees § 173 (1994), and successive final
              judgments in the same case are at least unusual, see Del
              Castillo v. Ralor Pharmacy, Inc., 

(Fla. 3d
              DCA 1987), it is true that the principle is often broadly and
              imprecisely stated as applying in subsequent "suits" or
              "actions." See 32 Fla. Jur. 2d Judgments and Decrees
              § 140. Nevertheless, when there is indeed a final earlier
              adjudication, its "effect . . . as res judicata is not confined in
              its operation to subsequent independent proceedings, but
              also applies to all collateral proceedings in the same action."
              46 Am. Jur. 2d Judgments § 596 (1994).

see also Sibley v. Sibley, 

, 982 (Fla. 3d DCA

2004). Likewise, when addressing the finality of postdecretal orders for purposes of

                                             -4-
rehearing motions, the Florida Supreme Court has noted that "[p]ost decretal [sic]

orders are not true interlocutory orders, and perhaps the term 'interlocutory' is a

misnomer." Clearwater Fed. Sav. & Loan Ass'n v. Sampson, 

, 79 (Fla.

1976).

              Where an order after judgment is dispositive of any question,
              it becomes a final post decretal [sic] order. To the extent
              that it completes the judicial labor on that portion of the
              cause after judgment, it becomes final as to that portion and
              should be treated as a final judgment, and, therefore, a
              petition for rehearing could be properly directed to such a
              post decretal [sic] order which constitutes a final and distinct
              adjudication of rights which have not been adjudicated in the
              original final judgment.

postjudgment order deciding a motion for attorneys' fees incurred

in the underlying action is a final appealable order. Yampol v. Turnberry Isle S. Condo.

Ass'n, 

, 837 (Fla. 3d DCA 2018); Reliable Reprographics Blueprint &

Supply, Inc. v. Fla. Mango Office Park, Inc., 

, 1041-02 (Fla. 4th DCA

1994). The same is true of a postdecretal order determining entitlement to fees incurred

in a collateral proceeding instituted after the judgment in the underlying action. See

, 981-82.

              The case before us arose from two discrete collateral proceedings begun

after entry of the underlying divorce judgment. In the first, the circuit court denied

Pelphrey-Weigand's motion to set aside the divorce judgment, reserved jurisdiction to

adjudicate Weigand's motion for attorneys' fees and costs, and later rendered an order

denying Weigand's fee motion. That order was a final adjudication of Weigand's claim




                                            -5-
for fees and costs related to the motion to set aside the judgment, and it satisfied the

first prong of the res judicata elements.

              Weigand also argues that res judicata did not apply here because there

was no identity of the causes of action between his first motion for fees and costs in the

proceeding on the motion to set aside the judgment and the later ones. He points out

that the later motion and amended motion asserted theories of recovery that were not

alleged in the first motion, and he quotes this court's opinion in Ward v. State, 

225, 227 (Fla. 2d DCA 2013) (quoting Larimore v. State, 

, 1123 (Fla.

1st DCA 2012)), for the proposition that "an identical issue must have been presented in

the prior proceeding, the issue must have been a critical and necessary part of the prior

determination, there must have been a full and fair opportunity to litigate that issue, and

the issue must have been actually litigated." But that passage referred to the principle

of collateral estoppel, not res judicata. 

the two issue preclusion

principles are very different: Whereas res judicata precludes relitigating a cause of

action, collateral estoppel is concerned with previously determined issues of fact.

Campbell v. State, 

, 295 (Fla. 2d DCA 2004). Weigand's assertion that

res judicata requires that the theories of recovery in the two proceedings must be

identical is simply wrong.

              To the contrary, the law is long settled that res judicata not only applies to

issues that were raised in the first proceeding, but it also bars consideration of issues

that could have been but were not raised in the first case. See, e.g., Kimbrell v. Paige,

, 1012 (Fla. 1984); 

; 

. Time and again, the courts have expressly rejected the proposition, advanced by



                                            -6-
Weigand here, that a claimant may avoid the res judicata prohibition by changing either

the relief requested or the theory under which the claim is made. Gordon v. Gordon, 

, 43 (Fla. 1952); Signo v. Fla. Farm Bureau Cas. Ins. Co., 

, 5 (Fla.

4th DCA 1984); Pumo v. Pumo, 

, 226 (Fla. 3d DCA 1981); Smith v. Fla.

E. Coast Ry. Co., 

, 72-73 (Fla. 3d DCA 1963).

              The first order denying Weigand's request for fees and costs incurred in

the proceeding on the motion to set aside the dissolution judgment operated to bar

further consideration of that entitlement. Insofar as the order under review revisited the

fee and costs entitlement and granted them to Weigand for that proceeding, it was error.

              Beyond that, and even more basically, the first order ended the circuit

court's jurisdiction in that proceeding. "The rule is firmly established in this State that

the trial Court loses jurisdiction of a cause after a judgment or final decree has been

entered and the time for filing petition for rehearing or motion for new trial has expired or

same has been denied." Liberty Ins. Corp. v. Milne, 

, 615 (Fla. 4th DCA

2012) (quoting State ex rel. Am. Home Ins. Co. v. Seay, 

, 824 (Fla. 4th

DCA 1978)); see also Travelers Cas. & Sur. Co. of Am. v. Culbreath Isles Prop. Owners

Ass'n, 

, 899 (Fla. 2d DCA 2012). It makes no difference that the

offending subsequent fee and cost request was considered when the court was

proceeding on the motion for contempt and enforcement. The latter was pursuant to a

specific reservation of jurisdiction for that purpose in the final dissolution judgment.

Weigand's second and third motions for fees and costs related to the motion to set

aside the judgment exceeded the scope of that reservation. See Travelers Cas. & Sur.

Co. of 

.



                                             -7-
             Accordingly, we reverse the award of attorneys' fees and costs to

Weigand related to the motion to set aside final judgment. We affirm the order insofar

as it awards attorneys' fees and costs pertaining to the motion for contempt and

enforcement. However, the order on appeal does not distinguish between costs

attributable to the two proceedings. On remand, the court shall determine which costs

were incurred defending the motion to set aside, and it shall strike those costs from the

award.

             Reversed in part, affirmed in part, and remanded with instructions.


KHOUZAM and MORRIS, JJ., Concur.




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