FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
No. 1D2021-3358 _____________________________
DAVID T. BEANS,
Appellant,
v.
AMY S. BEANS,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County. Lacey Powell Clark, Judge.
April 30, 2025
ON MOTION FOR REHEARING AND FOR CERTIFICATION OF CONFLICT
PER CURIAM.
We deny the motion. The preceding majority opinion addressed why section 61.14, Florida Statutes—not section 61.08—applies to modifications of alimony. Our analysis was wholly based on the text of the respective statutes—as amended— and we explained why the amended statutes supersede this court’s analyses in prior cases that were based on prior statutory versions. The present motion itself does not identify anything pertinent that we have missed, and the dissent still fails to refute any of the legal points the majority made in its original analysis.
There also is no need for certification. The decisions from other district courts that the motion mentions as examples of conflict do not address the question we did—one of those cases addressing a different aspect of section 61.14 (and otherwise relying on an earlier decision pre-dating an amendment to section 61.08 adding a cross-reference to section 61.14, the significance of which we discussed); another just relying on district court decisions pre-dating the amendment to section 61.08; and two not mentioning section 61.14 at all. There is no conflict to certify. And the question that the appellant and dissent propose we certify to the supreme court, in essence, is whether we should follow a statute’s clear text; or instead hew to decisions that rely on a pre- amended version of the text, any conflict between the two notwithstanding. That is not really a question; or, if it is, it is one that answers itself for anyone who considers a statute, and not what a court says, to be the law.
As for the dissent’s suggestion that our decision is not legitimate and that trial courts need not abide by our holding, we simply point readers to the Florida Constitution and the supreme court. See Art. V, § 4(a), Fla. Const. (providing for each appellate case’s consideration by three judges of the district court, making “the concurrence of two [] necessary to a decision” in the exercise of the court’s judicial power); Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958) (recognizing district courts as “primarily of final appellate jurisdiction,” their decisions “in most instances being final and absolute”); Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980) (“The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.”); Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985) (noting “binding effect” a district court’s decision has on “Florida trial courts”); see also Little v. State, 206 So. 2d 9, 10 (Fla. 1968) (noting that when two decisions of the same district court conflict, the one “later in point of time [] would overrule [the earlier one] as the decisional law”); R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 604 (Fla. 2017) (still recognizing Little as “holding that where intradistrict conflict exists, the decision later in time overrules the former as the decisional law in the district”).
RAY and TANENBAUM, JJ., concur; KELSEY, J., dissents with an opinion.
2 _____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
KELSEY, J., dissenting from denial of motion for rehearing or for certification.
I dissent for the reasons expressed in my merits dissent and the many reasons well presented in Former Husband’s motion for rehearing or for certification docketed October 3, 2024, which I set out in full below. At a bare minimum I would certify to the Florida Supreme Court a question of great public importance such as that the Former Husband proposes:
ARE TRIAL COURTS REQUIRED TO ADHERE TO THE ECONOMIC CONSIDERATIONS AND FACTORS IN SECTION 61.08 WHEN DECIDING PETITIONS TO MODIFY ALIMONY FILED UNDER SECTION 61.14?
In my view, as set forth in my earlier dissent, the merits opinion is not legitimate precedent at all, is wrong, and is not binding on any future panel of this Court or on trial courts. I borrow the on-point and authoritative reasoning under which Judge Bilbrey recently demonstrated the illegitimacy of any attempt to evade the prior-panel-precedent rule:
“[A] three-judge panel of a district court should not overrule or recede from a prior panel’s ruling on an identical point of the law.” See In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So. 2d 1127, 1128 (Fla. 1982). In considering this case en banc, we are correctly adhering to the firmly established prior panel precedent doctrine. See Taylor Eng’g, Inc. v. Dickerson Fla., Inc., 221 So. 3d 719, 723 n.3 (Fla. 1st DCA 2017) (calling the doctrine “well-established”).
3 When faced with erroneous precedent, barring a decision from a higher court or a legislative change, we are required to consider the matter en banc before we can recede from it. See Wanless v. State, 271 So. 3d 1219, 1223 (Fla. 1st DCA 2019) (“We are of course bound to follow our own decisions unless and until an intervening decision from the Florida Supreme Court, the United States Supreme Court, or this court sitting en banc compels otherwise.”); see also Sims v. State, 260 So. 3d 509, 514 (Fla. 1st DCA 2018); Adams v. State, 188 So. 3d 849, 851 (Fla. 1st DCA 2012).* Failing to adhere to prior panel precedent without en banc consideration opens the possibility for chaos and uncertainty to reign. See In re Rule 9.331, 416 So. 2d at 1128 (“[I]f intra-district conflict is not resolved within the district courts by en banc decision, totally inconsistent decisions could be left standing and litigants left in doubt as to the state of law”); see also Rogers v. State, 296 So. 3d 500, 519 n.1 (Fla. 1st DCA 2020) (Bilbrey, J., concurring). I appreciate my colleagues’ willingness to consider this matter en banc to provide certainty to the bench, bar, and litigants that the majority of the court has not abandoned the prior panel precedent doctrine.
* Except the relatively new Sixth District, which has apparently not addressed the issue, the prior panel precedent doctrine is followed by all Florida district courts. See, e.g., State v. Crose, 378 So. 3d 1217, 1243–44 (Fla. 2d DCA 2024) (en banc); State v. Washington, 114 So. 3d 182, 188–89 (Fla. 3d DCA 2012); Fox v. Fox, 262 So. 3d 789, 792 (Fla. 4th DCA 2018) (en banc); Williams v. Salt Springs Resort Ass’n, 298 So. 3d 1255, 1256 (Fla.
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FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________
No. 1D2021-3358 _____________________________
DAVID T. BEANS,
Appellant,
v.
AMY S. BEANS,
Appellee.
_____________________________
On appeal from the Circuit Court for Escambia County. Lacey Powell Clark, Judge.
April 30, 2025
ON MOTION FOR REHEARING AND FOR CERTIFICATION OF CONFLICT
PER CURIAM.
We deny the motion. The preceding majority opinion addressed why section 61.14, Florida Statutes—not section 61.08—applies to modifications of alimony. Our analysis was wholly based on the text of the respective statutes—as amended— and we explained why the amended statutes supersede this court’s analyses in prior cases that were based on prior statutory versions. The present motion itself does not identify anything pertinent that we have missed, and the dissent still fails to refute any of the legal points the majority made in its original analysis.
There also is no need for certification. The decisions from other district courts that the motion mentions as examples of conflict do not address the question we did—one of those cases addressing a different aspect of section 61.14 (and otherwise relying on an earlier decision pre-dating an amendment to section 61.08 adding a cross-reference to section 61.14, the significance of which we discussed); another just relying on district court decisions pre-dating the amendment to section 61.08; and two not mentioning section 61.14 at all. There is no conflict to certify. And the question that the appellant and dissent propose we certify to the supreme court, in essence, is whether we should follow a statute’s clear text; or instead hew to decisions that rely on a pre- amended version of the text, any conflict between the two notwithstanding. That is not really a question; or, if it is, it is one that answers itself for anyone who considers a statute, and not what a court says, to be the law.
As for the dissent’s suggestion that our decision is not legitimate and that trial courts need not abide by our holding, we simply point readers to the Florida Constitution and the supreme court. See Art. V, § 4(a), Fla. Const. (providing for each appellate case’s consideration by three judges of the district court, making “the concurrence of two [] necessary to a decision” in the exercise of the court’s judicial power); Ansin v. Thurston, 101 So. 2d 808, 810 (Fla. 1958) (recognizing district courts as “primarily of final appellate jurisdiction,” their decisions “in most instances being final and absolute”); Stanfill v. State, 384 So. 2d 141, 143 (Fla. 1980) (“The decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.”); Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985) (noting “binding effect” a district court’s decision has on “Florida trial courts”); see also Little v. State, 206 So. 2d 9, 10 (Fla. 1968) (noting that when two decisions of the same district court conflict, the one “later in point of time [] would overrule [the earlier one] as the decisional law”); R.J. Reynolds Tobacco Co. v. Marotta, 214 So. 3d 590, 604 (Fla. 2017) (still recognizing Little as “holding that where intradistrict conflict exists, the decision later in time overrules the former as the decisional law in the district”).
RAY and TANENBAUM, JJ., concur; KELSEY, J., dissents with an opinion.
2 _____________________________
Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________
KELSEY, J., dissenting from denial of motion for rehearing or for certification.
I dissent for the reasons expressed in my merits dissent and the many reasons well presented in Former Husband’s motion for rehearing or for certification docketed October 3, 2024, which I set out in full below. At a bare minimum I would certify to the Florida Supreme Court a question of great public importance such as that the Former Husband proposes:
ARE TRIAL COURTS REQUIRED TO ADHERE TO THE ECONOMIC CONSIDERATIONS AND FACTORS IN SECTION 61.08 WHEN DECIDING PETITIONS TO MODIFY ALIMONY FILED UNDER SECTION 61.14?
In my view, as set forth in my earlier dissent, the merits opinion is not legitimate precedent at all, is wrong, and is not binding on any future panel of this Court or on trial courts. I borrow the on-point and authoritative reasoning under which Judge Bilbrey recently demonstrated the illegitimacy of any attempt to evade the prior-panel-precedent rule:
“[A] three-judge panel of a district court should not overrule or recede from a prior panel’s ruling on an identical point of the law.” See In re Rule 9.331, Determination of Causes by a District Court of Appeal En Banc, Florida Rules of Appellate Procedure, 416 So. 2d 1127, 1128 (Fla. 1982). In considering this case en banc, we are correctly adhering to the firmly established prior panel precedent doctrine. See Taylor Eng’g, Inc. v. Dickerson Fla., Inc., 221 So. 3d 719, 723 n.3 (Fla. 1st DCA 2017) (calling the doctrine “well-established”).
3 When faced with erroneous precedent, barring a decision from a higher court or a legislative change, we are required to consider the matter en banc before we can recede from it. See Wanless v. State, 271 So. 3d 1219, 1223 (Fla. 1st DCA 2019) (“We are of course bound to follow our own decisions unless and until an intervening decision from the Florida Supreme Court, the United States Supreme Court, or this court sitting en banc compels otherwise.”); see also Sims v. State, 260 So. 3d 509, 514 (Fla. 1st DCA 2018); Adams v. State, 188 So. 3d 849, 851 (Fla. 1st DCA 2012).* Failing to adhere to prior panel precedent without en banc consideration opens the possibility for chaos and uncertainty to reign. See In re Rule 9.331, 416 So. 2d at 1128 (“[I]f intra-district conflict is not resolved within the district courts by en banc decision, totally inconsistent decisions could be left standing and litigants left in doubt as to the state of law”); see also Rogers v. State, 296 So. 3d 500, 519 n.1 (Fla. 1st DCA 2020) (Bilbrey, J., concurring). I appreciate my colleagues’ willingness to consider this matter en banc to provide certainty to the bench, bar, and litigants that the majority of the court has not abandoned the prior panel precedent doctrine.
* Except the relatively new Sixth District, which has apparently not addressed the issue, the prior panel precedent doctrine is followed by all Florida district courts. See, e.g., State v. Crose, 378 So. 3d 1217, 1243–44 (Fla. 2d DCA 2024) (en banc); State v. Washington, 114 So. 3d 182, 188–89 (Fla. 3d DCA 2012); Fox v. Fox, 262 So. 3d 789, 792 (Fla. 4th DCA 2018) (en banc); Williams v. Salt Springs Resort Ass’n, 298 So. 3d 1255, 1256 (Fla. 5th DCA 2020) (en banc). This aligns with how the United States Eleventh Circuit Court of Appeals treats prior panel precedent. See United States v. Dubois, 94 F.4th 1284, 1293 (11th Cir. 2024); see also Scott v. United States, 890 F.3d 1239, 1257 (11th Cir. 2018) (requiring the prior panel precedent “rule” be applied even when the subsequent panel is convinced that the earlier panel was wrong). Unlike Judge Tanenbaum, I do not think I am, or the judges on this court, our sister district courts, or
4 federal circuit judges are violating our oaths of office when we follow prior panel precedent despite disagreeing with the prior panel’s holding. Instead, for Florida district court judges we are complying with guidance of the Florida Supreme Court as stated in In re Rule 9.331.
BAM Trading Services, Inc. v. Office of Fin. Regulation, 395 So. 3d 687, 693–94 & n.* (Fla. 1st DCA 2024).
I imagine that family law practitioners and other judges likewise understand the issues the Former Husband has identified, and I can only hope that this is corrected.
5 Appendix
6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 _____________________________
Jessica L. Scholl of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
Therese Felth McKenzie of McKenzie Law Firm, P.A., Pensacola, for Appellee.