the case, the district court granted the Diocese summary judgment on the basis that the Diocese’s claim against Gallagher was contractual. This time around, the summary judgment burden was on the Diocese, rather than Gallagher. Moreover, the district court considered additional evidence in granting the Diocese summary judgment, evidence that it did not have the opportunity to consider when it erroneously granted Gallagher summary judgment on the same issue. The Diocese even emphasizes this point in its brief: “On remand, the trial court was presented with even stronger evidence than before on the issue of Gallagher’s liability.” This court will not apply the law of the case to factual determinations if there is a different standard of review in the two appeals. See Royal, 3 F.3d at 881 (<HOLDING>). This court has also held that the law of the
holding same as to the filing of a notice of an interlocutory appeal holding that an interlocutory appeal lies from a denial of summary judgment on a qualified immunity claim holding that an issue not raised on direct appeal of sentence is barred by the law of the case from presentation in a subsequent appeal holding that because the standard of review for factual determinations on direct appeal is higher than the standard applied during an interlocutory appeal of a preliminary injunction the interlocutory appeal normally will not establish law of the case on factual matters holding that jurisdiction for interlocutory appeal was lacking where defendants arguments rested on factual not legal grounds