Harrison v. Harrison

CATHELL, Judge. This is an appeal from a case involving an audit in a mortgage foreclosure proceeding. The answer to the determinative issue, however, resides in another case. We explain. ⁶⁵⁶ Julie G. Harrison, appellant, and Harry C. Harrison, appellee, were previously married.

The parties’ marital union was ended by a judgment of divorce, dated January 14, 1993. An appeal was taken in that case by Mr. Harrison on two issues, both relating to alimony; the divorce itself was not contested. Affixed to the opinion that we issued in the prior appeal, Harrison v. Harrison [No. 586, 1993 Term, per curiam, filed Dec. 17, 1993], was what is sometimes termed a mandate. 1 It stated: JUDGMENT REVERSED. CASE REMANDED TO THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

COSTS TO BE PAID ONE HALF BY APPELLANT AND ONE HALF BY APPELLEE. Harrison, No. 586, slip op., at 7. The opinion referred to in that judgment or order only addressed the two questions raised in that appeal. The first question concerned the husband’s assertion that the trial court failed to consider the effect of a pension distribution on his financial status when it awarded alimony.

We agreed. As to that question, we stated in the body of the opinion: “We therefore vacate the award of alimony and remand this case for further proceedings consistent with this opinion.” Id. at 4 (emphasis added). With respect to the second question raised, we held that no error had occurred and stated, “When determining the alimony award on remand, the circuit court will once again be able to ⁶⁵⁷ consider wages from all of appellant’s teaching positions.” Id. at 7. Then, without further comment, the order or judgment, ie., the “mandate,” was appended to that opinion.

However, rather than stating, “JUDGMENT AS TO ALIMONY VACATED,” which would have reflected what we actually held in the body of the opinion, ie., “We therefore vacate the award of alimony and remand this case for further proceedings consistent with this opinion,” we inadvertently stated, “JUDGMENT REVERSED.” That occurrence gave rise to the problem to be resolved in the case sub judice. After the foreclosure sale, appellant argued below, in respect to the distribution of the surplus, that the auditor should have considered the parties to have held the property as tenants by the entireties. Appellant considered the judgment appended to our prior opinion separate from the opinion itself and argued that it resulted in a reversal of the entire judgment, including the divorce. She contended, therefore, that the parties were still married at the time of the audit.

Appellees’ position, which prevailed before both the auditor and the trial court, was that the parties were divorced, and, as a result of that divorce, the tenancy became, by operation of law, a tenancy in common. 2 Our review here is thus dependent upon our construction of our opinion, judgment, and mandate in the parties’ prior divorce case. If we determine that the divorce itself was unaffected, then appellees prevail in the case sub judice and we must affirm. If we determine that the prior judgment of divorce was reversed, then appellants prevail, and we must reverse and remand. Hence, the issues that resolve the instant appeal and answer the questions raised thereby are not the questions stated by appellant, but are: 1.

What is the effect of an appellate court’s judgment, order, or mandate? ⁶⁵⁸ 2. Can an issue or decision not presented on appeal, e.g., the judgment of divorce, generally be reversed by an appellate court that uses the type of order (or mandate) used in the prior proceeding? 1. What is the effect of an appellate court’s judgment, order, or mandate? In respect to the somewhat unique circumstances of these two cases, the first issue above has not been extensively addressed in Maryland.

Much of what Maryland law there appears to be is often intertwined with our cases that address the second question, although, even those cases do not directly answer the exact question presented here. We shall address those cases in the resolution of our question two. A review of certain Maryland Rules is a helpful starting point for our discussion, though not completely determinative. Maryland Rule 8-606, Mandate, provides: (a) To Evidence Order of the Court.—Any disposition of an appeal, including a voluntary dismissal, shall be evidenced by the mandate of the Court, which shall be certified by the Clerk under the seal of the Court and shall constitute the judgment of the Court.[ 3 ] ⁶⁵⁹ (e) Effect of Mandate.—Upon receipt of the mandate, the clerk of the lower court shall enter it promptly on the docket and the lower court shall proceed in accordance with its terms.

Maryland Rule 8-604, Disposition, subsection (d), Remand, provides: (1) Generally.—If the Court concludes that the substantial merits of a case will not be determined by affirming, reversing or modifying the judgment ... the Court may remand the case to a lower court. In the order remanding a case, the appellate court shall state the purpose for the remand. The order of remand and the opinion upon which the order is based are conclusive as to the points decided. [Emphasis added.] See Benson E. Legg et al., Maryland Appellate Practice 180-81 (MICPEL, 1989) (noting that “[a] mandate is, therefore, formal evidence of the final action of the appellate court”) (emphasis added). We note first the brief comment made by the Court of Appeals in its recent case, Powell v. Maryland Aviation Admin., 336 Md. 210, 222 , 647 A.2d 437 (1994): “Ordinarily, a reversal and remand after trial for error in the trial or decision results in a retrial, unless the appellate opinion or mandate specifically limits the proceedings on remand." (Emphasis added.) The case of Klopfer v. Werber, 264 Md. 419 , 286 A.2d 776 (1972), while primarily concerned with procedural matters related to the payment of costs, also discussed orders and mandates, albeit briefly.

Referring to a predecessor rule, the Court noted: Rule 876 a makes the mandate the sole formal evidence of the final actions of this Court in every case---- Rule 876 d says: “When the mandate has been transmitted the lower court shall proceed according to the tenor and directions thereof.” Id. at 421-22 , 286 A.2d 776 (emphasis added). The case of O.F.C. Corp. v. Turner, 228 Md. 105 , 179 A.2d 366 (1962), as relevant here, involved a prior judgment of the ⁶⁶⁰ Court of Appeals that affirmed the underlying judgment but remanded the case. The Court of Appeals, in the subsequent case, in explaining its intent in regard to the prior remand, quoted extensively from its prior opinion. It identified one of the substantial questions then before it as whether, upon the remand in the previous appeal, the trial court had “misconstrued the mandate of this Court.” Id. at 109 , 179 A.2d 366 .

The Court noted that the trial court had thought it had no alternative except to issue an injunction due to the language used in the mandate. The Court discussed and interpreted its prior opinion to support its holding that the mandate had been misconstrued. In doing so, the Court did not differentiate between the opinion and the mandate, considering them one and the same. Id. at 110-11 , 179 A.2d 366 ; see also Union Trust Co. v. Harrisons’ Nurseries, Inc., 181 Md. 291 , 29 A.2d 668 (1943) (where the court’s opinion was not distinguished from the mandate); Washington County Water Co. v. Mayor and Council of Hagerstown, 122 Md. 252, 254-55 , 89 A. 500 (1914) (Washington County II).

In Washington County II, the Court of Appeals noted that appellant was raising the following issue: “Schedule B ... is not [in] compliance with the mandate of this Court in the former appeal. The contention is, that this Court said Schedule B itself should be filed.” 122 Md. at 254 , 89 A. 500 . The Court obviously considered its prior opinion to be part of the mandate, because the prior mandate simply stated, “Order reversed and cause remanded, with costs to the appellant.” Washington County Water Co. v. Mayor and Council of Hagerstown, 116 Md. 497, 511 , 82 A. 826 (1911) (Washington County I). The Washington County II Court then noted that “it is true that expression was used,” 122 Md. at 254 , 89 A. 500 , but nevertheless went on to hold that what had occurred in that case in respect to Schedule B “is a full compliance with the expression in the opinion.” Id.

It is clear that the Court considered the mandate and its opinion to be the judgment of the Court; it did not distinguish between them. In the more recent case of Balducci v. Eberly, 304 Md. 664, 669 , 500 A.2d 1042 (1985), the Court of Appeals construed a ⁶⁶¹ prior judgment or mandate from this Court, rendered in Balducci v. Eberly [No. 822, 1982 Term, per curiam, filed Feb. 15, 1983], that read: “Judgment Reversed. Orders of May 5, 1982 vacated. Appellees to pay the costs.” The Court also noted that our mandate did not, by its terms, award a new trial.

The Court noted further that the appellant contended that our prior “opinion vacating the injunction was a final and conclusive judgment on the merits.” 304 Md. at 669 , 500 A.2d 1042 . The Court of Appeals disagreed. Apparently referring to the term “mandate” generically, the Court stated: [T]he key issue ... [is] whether the ... mandate contemplated a grant of a new trial____ As a preliminary matter, we find that the ... mandate is ambiguous. Where a mandate is ambiguous, one must look to the opinion and other surrounding circumstances....

In examining the expression “Judgment Reversed,” we recognize that such an expression in and of itself does not prohibit the interpretation that a new trial is intended. Id. at 669-70 , 500 A.2d 1042 (footnote omitted). The Balducci Court, after citing Couser v. State, 256 Md. 393 , 260 A.2d 334 (1970), discussed infra, regarding the effect of “Judgment Reversed” language in a criminal case, and after discussing other cases, including George v. Farmers’ & Merchants’ Nat’l Bank, 155 Md. 693 , 142 A. 590 (1928), discussed infra, noted that, in Messall v. Merlands Club, Inc., 244 Md. 18, 37 , 222 A.2d 627 (1966), cert. denied, 386 U.S. 1009 , 87 S.Ct. 1349 , 18 L.Ed.2d 435 (1967), appellee had contended that “[o]nly the final judgment itself may be considered.... The opinion, being irrelevant and obiter dicta, has no force or effect.” 304 Md. at 672 , 500 A.2d 1042 .

The Balducci Court then noted that, in Messall , it had rejected that contention: “In our judgment a more correct statement of the law will be (that): ‘... [R]ecourse may be had to the opinion of the court in a former action to ascertain what was in the mind of the court when judgment was rendered, especially where there is only a general finding.’ ” ⁶⁶² Id. (citation omitted). The Court then held: “The ambiguous mandate [judgment] before us may be read in light of its opinion and the surrounding circumstances of the case as a whole.” Id. In Blue Cross of Maryland, Inc. v. Franklin Square Hosp., 277 Md. 93, 113 , 352 A.2d 798 (1976) (Franklin I), the judgment or order simply stated: “Case remanded to the Circuit Court ... for modification of its order in accordance with this opinion.” The effect of that judgment (mandate) was at issue in Health Servs.

Cost Review Comm’n v. Franklin Square Hosp., 280 Md. 233, 234 , 372 A.2d 1051 (1977) (Franklin II), wherein the Court of Appeals noted that the question was whether the modified judgment of the trial court was “consistent with our mandate in the prior appeal.” As is evident, that mandate required modification of the trial court’s judgment in accordance with the Court of Appeals’s opinion. The Franklin II Court treated the Franklin I opinion as the mandate. The Court noted that, in the prior appeal, none of the parties had challenged a particular “portion of the judgment.” Id. at 236 , 372 A.2d 1051 . It then discussed portions of its prior opinion referring to them as part of its prior mandate.

It noted that the trial court judgment in Franklin II “does preclude the Commission from reviewing certain cost factors.” Id. at 240-41 , 372 A.2d 1051 . The Court then held that such preclusion “is inconsistent with our mandate in [Franklin /].” Id. at 241 , 372 A.2d 1051 . The actual judgment, and the resulting Franklin I mandate made no mention of any cost factors. Id. at 240-41 , 372 A.2d 1051 .

The new trial court judgment, in Franklin II, was actually inconsistent with the prior appellate opinion, not the judgment, ie., the mandate affixed to the end of the opinion. • In Chayt v. Board of Zoning Appeals, 177 Md. 426, 436 , 9 A.2d 747 (1939) (Chayt I), the order or judgment affixed to the bottom of the opinion merely stated, “Order reversed, and case remanded for passage of an order in accordance with this opinion.” In the body of that opinion, the Court of Appeals provided that the case be remanded “for passage of an order restraining the use as proposed, because not permit ⁶⁶³ ted under the Zoning Ordinance.” Id. On remand, the trial court restrained the use “pursuant to a [granted] permit.” In a subsequent appeal, Chayt v. Board of Zoning Appeals, 178 Md. 400, 402-03 , 13 A.2d 614 (1940) (Chayt II), the Court of Appeals, in resolving what it had intended by its “mandate,” extensively discussed the opinion that accompanied the mandate (or the judgment) in Chayt I. It decided the appeal, not upon the actual mandate in Chayt I, but upon its underlying opinion. The Court of Appeals, in Chayt II, often made no distinction between its prior opinion and its prior mandate, referring to what it had said in the Chayt I opinion as “the mandate,” “limiting the effect of the mandate,” “affected by the mandate,” “restricts the purpose of the mandate,” as well as, on occasion, referring to the “decision and mandate of the court.” 178 Md. at 403-04 , 13 A.2d 614 passim. In George v. Farmers’ & Merchants’ Nat’l Bank, supra, 155 Md. at 695 , 142 A. 590 , the Court of Appeals, in a prior appeal in the same case, Farmers’ & Merchants’ Nat’l Bank v. Harper, 151 Md. 358, 363 , 137 A. 702 (1927), had, after its opinion, issued a mandate that, as relevant here, stated: “Judgment reversed, with costs to the appellant.” When the mandate was received in the circuit court, the case was placed on the trial court’s docket for trial.

Among the issues the Court of Appeals addressed in the subsequent appeal was whether the ease had been properly before the trial court for retrial. It noted that the judgment rendered by it in the prior case had not included an order for retrial. 155 Md. at 696 , 142 A. 590 . It then acknowledged that the opinion (as opposed to the mandate) that it had rendered had, in effect, stated that “the case should be retried with the defense of forgery eliminated.” Id. at 697 , 142 A. 590 . It then held: [W]e find no error in the lower court, upon receipt of the mandate, reinstating the case on the trial docket and proceeding with the trial thereof, in accordance with the views expressed in the opinions of this court.

The omission of the words “new trial awarded,” or language indicating a procedendo, was a clerical omission or oversight on the part of the court. ⁶⁶⁴ Id. The Court went on to discuss the concept of clerical mistake: The court ... may correct or amend clerical errors and misprisions of its officers.... The term “clerical'error” as here used must not be taken in too narrow a sense. It includes not only errors made by the clerk in entering the judgment, but also those mistakes apparent on the record, whether made by the court or counsel during the progress of the case, which cannot reasonably be attributed to the exercise of judicial consideration or discretion.

Id. at 697-98 , 142 A. 590 (citations omitted). A similar result has been reached in criminal cases. For example, in Couser v. State, supra, 256 Md. at 395 , 260 A.2d 334 , the prior judgment rendered by this Court provided, “Judgments Reversed.” The mandate that subsequently issued used the same language. Later, we amended the mandate to read, “Judgments Reversed and Case Remanded for New Trial.” The effect of our first judgment and corresponding mandate was the primary issue before the Court of Appeals.

Couser alleged that he was being placed in jeopardy by reason of the new trial. He argued that the original language used, “Judgment Reversed,” precluded a new trial and required an acquittal; a new trial would violate the Fifth Amendment’s prohibition against double jeopardy. The Court of Appeals first noted that it did “not view the original mandate as having the effect of an acquittal.” Id. After discussing the effect of a reversal due to insufficient evidence and its effect on the State’s ability to retry a criminal case, the Court held: It is our ruling that where the mandate is ambiguous, one must look to the opinion and other surrounding circumstances to determine the intent of the court.... [W]e conclude that the expression “Judgments Reversed” does not of itself amount to an acquittal and does not prohibit the interpretation that a new trial is intended.

Id. at 396 , 260 A.2d 334 . Citing George, supra, 155 Md. 693 , 142 A. 590 , it noted that that civil case “supports the proposi ⁶⁶⁵ tion that an ambiguous mandate may be read in light of the opinion.” 256 Md. at 399 , 260 A.2d 334 . After discussing Messall, supra, 244 Md. 18 , 222 A.2d 627 , the Court explained: [W]e feel justified in concluding the mandate was ambiguous. Looking to the body of the opinion, it appears that a new trial was what the court intended.[ 4 ] 256 Md. at 399 , 260 A.2d 334 .

The Court then distinguished reversals in criminal cases based upon “sufficiency of evidence” issues, referring to Gray v. State, 254 Md. 385 , 255 A.2d 5 (1969), cert. denied, 397 U.S. 944 , 90 S.Ct. 961 , 25 L.Ed.2d 126 (1970). While the Maryland cases and rules describe generally the importance of the court’s mandate and the procedures to be followed by the trial court—ie., “in accordance with the tenor and direction thereof’—they have not clearly described exactly what comprises the complete “order” or “judgment” of the court. As we construe these rules, and the cases discussing them, it is apparent that, in Maryland, the opinion, at the very least, may be an integral part of the appellate court’s order or mandate when that order or mandate provides for a remand for proceedings consistent with the opinion. Moreover, when it is apparent from the opinion itself that a simplified “order” or mandate, e.g., “Judgment Reversed,” is ambiguous, then the opinion may be referred to and considered an integral part of that mandate.

There may be, as we discuss infra, many types of unitary judgments or mandates, as opposed to multiple, severable parts of judgments, in which ⁶⁶⁶ such a “Judgment Reversed” order or mandate would not be ambiguous and there would be no need to refer to the opinion. Generally, however, any direction in an order or mandate that proceedings on remand are to be consistent with the opinion would necessarily require the opinion to be considered as an integral part of the judgment. This position is consistent with the law of mandates as stated by most, but not all, of the few foreign jurisdictions that have squarely addressed the issue. We initially note that, in Board of Regents v. Harriman, 857 S.W.2d 445 (Mo.Ct.App.1993), the Missouri intermediate appellate court was presented with an issue relating to the function of a mandate.

The court noted: [Respondent] contends that the trial court lacked jurisdiction to rule on [Petitioner’s] motion for judgment.... It contends that “the court’s mandate [in the prior appeal] to the trial court only provided for reinstatement of the default judgment____” [Respondent] argues that the trial court was without authority, or “jurisdiction,” to take any action ... other than was necessary “for reinstatement of the default judgment____” Id. at 449 . The court continued: [Respondent] ... did not discuss the function that a mandate serves. Where the judgment of an appellate court calls for the remand ... for further action the judgment is not self-executing but must be certified back to the trial court for execution.

This is done in this state by what is called the mandate.... The mandate serves the purpose of communicating the judgment to the lower court____ Id. (citations omitted, emphasis added). Lewelling v. Bosworth, 840 S.W.2d 640, 642 (Tex.Ct.App.1992), was a “child conservatorship case” involving a mother’s habeas corpus proceeding to secure custody or possession of a child.

A previous appeal had been taken in the proceedings. The court discussed the effect of the previous appellate mandate: ⁶⁶⁷ [B]oth parties assume that the supreme court mandate is the order that gave Mother a right of possession of the child. We disagree with this assumption. A mandate is the official notice of the action of the appellate court, directed to the court below, advising it of the action of the appellate court and directing it to have its judgment duly recognized, obeyed, and executed.

The case of D.E.J. v. G.H.B., 631 S.W.2d 113 (Mo.Ct.App.1982), involved the termination of parental rights. A previous appeal had been taken and, in subsequent proceedings, the effect of the prior mandate was an issue. The prior mandate stated that the trial court’s decision was “reversed, annulled and for naught held and esteemed the judgments ... and that the appellant be restored to all things lost ... and adjudged that the cause be remanded with directions for further proceedings in conformity with the opinion of this court.” Id. at 117 (emphasis omitted). The court noted that, on remand, the mother requested a new judge on the ground that the mandate restored to her “all things lost.” Id.

(emphasis omitted). The court responded: The mandate, however, is not the judgment; the appeals opinion is the judgment. The mandate merely constitutes the official communication of the appellate judgment to the subordinate court. When the terms of mandate remand the cause to the subordinate tribunal, the effect is to revest jurisdiction in that court to take the acts directed.

That direction is determined not only by the terms of the mandate but also by the opinion of the appeals court which the mandate integrates. ... Our opinion defines exactly the appellate judgment rendered and the scope of the directions to the juvenile court on remand. Id. at 117-18 (citations omitted, some emphasis added); see also State ex rel. Means v. Randall, 764 S.W.2d 120, 123 (Mo.Ct.App.1988).

In Dalton v. Johnson, 341 S.W.2d 596, 597-98 (Mo.Ct.App.1960), the Missouri intermediate appellate ⁶⁶⁸ court again opined, quoting from State ex rel. McGrew Coal Co. v. Ragland, 339 Mo. 452 , 97 S.W.2d 113 (1936): Such an order [mandate] is not itself a decree.... ... [A] certified copy of the opinion accompanies the mandate. In certain instances—for example when the judgment is reversed and the cause remanded with directions to proceed as directed in the opinion ..., and in other conceivable situation where the opinion might properly be considered—the opinion by such reference made to it becomes pro tanto incorporated with the judgment or mandate.... [I]n such cases, and many like them in that respect, they are expressly distinguished from “simple reversals and remands,” as they are termed. The obvious distinction lies in the fact that the opinion in this latter class [simple reversals or remand] serves no interpretive function or aidful purpose .... ... [A mandate] is not a judgment or decree but a notification of a judgment.

Under the law ... such an opinion is part of such mandate. Id. at 598-600 . Similarly, in Moore v. Beck, 730 S.W.2d 538, 540 (Mo.1987) (en banc), the Missouri Supreme Court stated, “The mandate, however, is not the judgment; the appeals opinion is the judgment. The mandate merely constitutes the official communication of the appellate judgment.” (Citation omitted.) The Moore court went on to examine the “opinion,” and not the mandate in the prior case.

See Moss v. Pennsylvania R.R., 68 F.Supp. 740, 741 (N.D.Ind.) (“In construing the mandate of the Circuit Court of Appeals, the opinion may and should be considered because it is a part of the mandate.” (citation omitted)), aff'd, 158 F.2d 86 (7th Cir.1946), and cert. denied, 330 U.S. 849 , 67 S.Ct. 1093 , 91 L.Ed. 1293 (1947); Tierney v. Tierney, 290 So.2d 136, 137 (Fla.Dist.Ct.App.1974); State ex rel. Kansas City v. Public Serv. Comm’n, 360 Mo. ⁶⁶⁹ 339 , 228 S.W.2d 738, 741 (1950) (“A mandate of an appellate court serves the purpose of communicating its judgment to a lower court.”); Abrams v. Scott, 357 Mo. 937 , 211 S.W.2d 718, 721 (1948); In re Disciplinary Action Against Larson, 485 N.W.2d 345, 348 n. 2 (N.D.1992) (“A mandate is the official mode of communicating the judgment ... to a lower court. It is the vehicle for revesting jurisdiction in the lower court.”) (citation omitted).

The Missouri court, in Byrd v. Brown, 641 S.W.2d 163, 166 (Mo.Ct.App.1982) (en banc), distinguished between reversals when the mandate does not direct a remand and reversals— when it does. In Byrd , the mandate at issue simply read: “[T]he Court ... does consider and adjudge that the order ... be reversed, annulled and for naught held and esteemed.” In its analysis, the court opined that “[a]n outright reversal, however, does not operate as a remand; the effect of a[n] ... unqualified reversal ... is to nullify it completely and to leave the case standing as if no such judgment ... had ever been rendered.” Id. at 168 . (In this case, the Missouri court may have been considering a mandate resulting from what we hereafter describe as a unitary judgment.) See also Missouri Pub. Serv.

Co. v. Platte-Clay Elec. Co-op., 435 S.W.2d 350, 353-54 (Mo.1968); Save the Trains Assoc. v. Chicago & N.W. Ry., 168 Neb. 180 , 95 N.W.2d 334, 336 (1959); Turner v. Bragg, 114 Vt. 334 , 44 A.2d 548, 549 (1945) (“A mandate is ‘[t]he judgment of an Appellate Court sent down to the court whose proceedings have been reviewed.’ ”) (citation omitted); In re Estate of Kokesh, 664 P.2d 127, 129 (Wyo.1983); Sanders v. Gregory, 652 P.2d 25, 26 (Wyo.1982). In a recent Colorado workers’ compensation case, the Colorado appellate court, in Hrabczuk v. John Lucas Landscaping, 888 P.2d 367 (Colo.Ct.App.1994), noted that it had previously rendered an opinion in which it had dismissed the prior appeal but had included in its opinion a directive that the case be “remanded ... to the Panel ‘for consideration of the request for attorney fees.’ ” Id. at 368 . The “mandate” that was subsequently issued by the clerk of the court differed, however, in that it stated that the case was “remanded to [the ⁶⁷⁰ Industrial Claim Appeals Office] for attorney’s fees.” When the Panel reheard the case, it concluded, because of the language of the “mandate,” that it had to award the attorney’s fees even though the opinion required it only to “reconsider” them.

The court held, in the subsequent appeal: The mandate [is] ... intended to establish the finality of the judgment.... ... [T]he function of the mandate is to establish the finality of the court’s judgment, to restore jurisdiction in the tribunal from which the appeal ... is taken, and to communicate the court’s judgment to that tribunal. In other jurisdictions some courts hold that, in the event of a conflict, the mandate must give way to the opinion. See Albuquerque Broadcasting Co. v. Bureau of Revenue, 54 N.M. 133 , 215 P.2d 819 (1950); Sherrill v. Sovereign Camp, W.O.W., 184 Okla. 204 , 86 P.2d 295 (1938). Others hold that the mandate governs.

See Aguilar v. Safeway Ins. Co., 221 Ill.App.3d 1095 , 164 Ill.Dec. 418 , 582 N.E.2d 1362 (1991) (the correctness of a trial court’s action is to be determined from the appellate court’s mandate, as opposed to the ... opinion unless the mandate directs the trial court to proceed in conformity with the opinion). Considering the function of the mandate ..., we conclude that the better view is that the directions on remand set out in the order are controlling over language contained in mandate form issued by the clerk’s office of this court. Thus, the Panel was not required to award fees.

Id. at 368-69 (some citations omitted). In Tucson Gas & Elec. Co. v. Superior Court, 9 Ariz.App. 210 , 450 P.2d 722, 723 (1969), the relevant portion of the appellate court’s prior opinion 5 stated: “[T]he judgment below be reversed ... to permit the real parties in interest ... to file an amended complaint ... which amended pleading will have relation back to the filing of the original complaint.” The ⁶⁷¹ mandate that subsequently issued, however, stated, in relevant part: “[T]he judgment ... on appeal be, and the same is hereby reversed with direction to enter judgment for the defendant in this action, in accordance with the