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The Florida Bar Journal
July/August, 2018 Volume 92, No. 7
Reversed and Remanded for a New Trial: A Guide to Retrial in Civil Cases

by Adam Richardson

Page 40



The trial is over. The plaintiff won. Believing the trial judge erred in some way, the defendant appeals. Now the district court has issued its decision, and it agreed with the defendant. At the very end of the opinion are these seven words: “Reversed and remanded for a new trial.” Okay, fair enough — we’ll have a second go at a trial. But what actually happens on remand? How does the first trial affect what happens before, during, and after the second one? Unfortunately, there is little on this subject to be found in Florida caselaw. This article draws on controlling Florida decisions, helpful cases from other jurisdictions, federal decisions, and other authorities to guide us through the remand.

Returning the Case to the Trial Court
The case is not returned to the trial court when the district court issues its opinion. When the mandate is issued, the district court’s decision becomes final.1 As the mandate is the appellate court’s official mode of communicating its judgment to the trial court, this is when the case — and jurisdiction — is returned to the trial court.2

But losing parties routinely file motions for rehearing, hoping to persuade the appellate court to change its mind. The party has 15 days from the date of the decision to file the motion for rehearing, though the court can extend that time.3 The prevailing party can file a response within 10 days, though that, too, can be extended.4 If a rehearing or other post-decision motion is timely filed, “the time for issuance of the mandate or other process shall be extended until 15 days after rendition of the order denying the motion, or, if granted, until 15 days after the cause has been fully determined.”5

The fact that there is an appellate mandate makes the case on remand different than a case reaching its first trial. This is because the trial court’s role is purely ministerial: It is limited to obeying the appellate court’s order, and it has no discretion to alter or modify the order “in any way, shape, or form.”6 Compliance with the mandate may be enforced by filing a motion for such in the appellate court.7

Under certain circumstances, delaying a trial or imposing obstacles can constitute a violation of the appellate court’s mandate. Thus, in Wilcox v. Hotelerama Associates, 619 So. 2d 444 (Fla. 3d DCA 1993), the Third District issued a writ of mandamus to a trial court which, following reversal for a new trial, conditioned the new trial on the nonprevailing appellees’ payment of appellate costs. The district court wrote: “In light of this court’s specific mandate, the trial court was without discretion in its obligation to proceed with the disposition of the cause without entering a stay pending the payment of the costs of appeal.”8 In its closing instructions, the Third District told “the trial court to proceed with the appropriate disposition of the cause without delay.”9

Otherwise, as the Supreme Court has stated, the trial court enjoys broad discretion in the conduct of a new trial.10 Philip Padovano, a retired judge of the First District Court of Appeal now in private practice, has made a similar observation, and also written that parties may present different evidence at the retrial than they presented at the first trial.11 However, in the interests of economy and efficiency, and unless the law-of-the-case doctrine demands the opposite, both the trial court and the parties should be reluctant to revisit prior rulings or vary the evidence presented.

The doctrine of the law of the case is an exception to the trial court’s discretion on remand. The law of the case is the appellate court’s decision on a question of law. The decision cannot be relitigated in the lower court on remand.12 As an example, if the district court held the trial court abused its discretion in admitting certain evidence, the trial court cannot admit that evidence at the retrial. Similarly, if the appellate court reverses and remands for a new trial on a specific issue, the trial court must limit the presentation of evidence to that issue.13

Setting the Case for Trial
Fla. R. Civ. P. 1.440(a) provides in part that “[a]n action is at issue after any motions directed to the last pleading served have been disposed of or, if no such motions are served, 20 days after service of the last pleading.”14

Since a case that is to be retried after an appellate mandate must have been at issue to reach the first trial, the case should be at issue as soon as it is returned to the trial court, unless the appellate court ordered a change to the pleadings or authorized leave to raise other claims or defenses (more on this in the next section).

Amendments to the Pleadings
When a case is remanded for a new trial, the parties generally are not permitted to amend their pleadings, but instead must proceed on the pleadings as they were at the time of the first trial.15 As Padovano writes, “a remand for further proceedings cannot be used as a license to make substantive alterations in the complaint or the answer.”16

The general prohibition on amendments presenting new and different issues that were not authorized by the appellate court is grounded in enforcement of the court’s mandate: If unauthorized amendments were allowed, they could become a way to avoid the appellate court’s decision.17 This is interpretation of the mandate by inference. If the court reversed with the general instruction to hold a new trial, necessarily it didn’t authorize any amendments. Further, amending the pleadings would take the case out of issue and delay retrial.

But the general prohibition does not apply when the appellate court reverses a ruling the trial court made at an interlocutory stage, that is, at a point in the proceedings in which the losing party has a right to amend. The Fifth District provided the example of an appellate court holding that the trial court should have dismissed the plaintiff’s complaint because “the effect is precisely the same as it would have been had the trial court dismissed the complaint in the first instance.”18

An example of the above exception is Florida Air Conditioners v. Colonial Supply Co., 390 So. 2d 174 (Fla. 5th DCA 1980). During the jury trial, the plaintiff struck one theory of liability it had alleged in its count against the defendants and recovered a verdict on the other remaining theory, which was based on a statute. In the first appeal, the appellate court reversed the denial of the defendants’ pretrial motion to dismiss that latter theory on the ground the plaintiff’s cause of action accrued before the effective date of the statute and remanded “for further proceedings consistent herewith.”19 On remand, the trial court denied the plaintiff’s motion to amend the complaint to re-allege the other stricken theory of liability. In the second appeal, the Fifth District said that, in the prior appeal, it had not held that the plaintiff did not have a cause of action under the stricken theory.20 Thus, amendment of the complaint to re-allege that cause of action “would not be inconsistent with or repugnant to the allegations in the original complaint; would not entirely change or abandon the nature of the plaintiff’s case as presented in the first instance[;] nor introduce a new theory of recovery not theretofore asserted.”21

The Fifth District also observed the amendment could be justified to conform the pleadings to the evidence at trial because the facts establishing the statutory theory also could establish a cause of action not based on the statute.22

One other point about the pleadings is that, on remand, the prevailing party cannot change its election between a jury trial or a nonjury trial; it is stuck with the election it made for the first trial.23 This relates to the general prohibition on amendments after the general instruction for a new trial and the operation of Fla. R. Civ. P. 1.430(b) and (d).

The rule provides in part that “[a]ny party may demand a trial by jury of any issue triable of right by a jury by serving upon the other party a demand therefor in writing at any time after commencement of the action and not later than 10 days after the service of the last pleading directed to such issue.”24 Unless the appellate court authorized the amendment of pleadings, the 10-day period since the “last pleading directed to such issue” would have passed long ago.

In short, a general instruction for a new trial is exactly what it says. It is a do-over in only a limited sense. It does not allow a party to start the whole case over again.

Discovery
Given the limited remit on remand, even with a general instruction for a new trial, how much leeway do the parties have to conduct discovery after remand? As a general matter, Florida law provides it is within the trial court’s discretion to reopen discovery.25 But there does not appear to be Florida authority establishing guidelines for the exercise of that discretion within the context of remand, or the precise issue of discovery on remand.

Federal decisions provide that the matter is discretionary, which is consistent with general Florida law.26 Bakalar v. Vavra, 851 F. Supp. 2d 489 (S.D.N.Y. 2011), is helpful for our purposes. There, the court summarized federal law on reopening discovery generally:

“The decision whether to hear additional evidence on remand is within the sound discretion of the trial court judge. Moreover, an appellate court’s failure to specify that further evidence should be taken on remand can, at most, be construed as leaving a decision on the need to reopen the record to the sound discretion of the trial court.

“In deciding whether to reopen discovery, courts consider whether good cause exists. A significant consideration is whether there has already been adequate opportunity for discovery. Courts also consider (1) whether trial is imminent, (2) whether the request is opposed, (3) whether the non-moving party would be prejudiced, (4) whether the moving party was diligent in obtaining discovery within the guidelines established by the court, (5) the foreseeability of the need for additional discovery in light of the time allowed for discovery by the district court, and (6) the likelihood that the discovery will lead to relevant evidence.”27

In Bakalar, the plaintiff brought an action for declaratory judgment against the defendants to establish that he was the rightful owner of a piece of artwork that allegedly was expropriated by the Nazis. Originally, the district court entered judgment in favor of the plaintiff; the appellate court reversed on the ground the district court applied the wrong law. On remand, the defendants moved to reopen discovery to offer evidence from two expert witnesses the district court had excluded from the first trial.

The district court said the defendants’ claimed need for the evidence was apparent to the defendants before the close of discovery at the first trial; yet they had not made any effort to disclose the two experts until shortly before the first trial. The court concluded the defendants failed to show diligence, and that new testimony would prejudice the plaintiff, cost the parties more money, and delay resolution of the action. These two factors — lack of diligence and prejudice — far outweighed the evidence’s probative value. Thus, the court denied the post-remand motion to reopen discovery.28 The Second Circuit affirmed the ruling.29

Bakalar emphasizes that a reversal and remand for new trial does not set the clock at zero, and that the parties may be constrained by decisions made, or not made, for the first trial. So, what circumstances justify the reopening of discovery?

Yashon v. Gregory, 737 F.2d 547 (6th Cir. 1984), involved a reversal of a summary judgment and remand, but it is instructive. The district court entered summary judgment against the plaintiff doctor because, it ruled, the defendants afforded him due process. In the first appeal, the Sixth Circuit reversed because the district court did not make a finding on the threshold issue — whether the plaintiff had a protectable property interest — and “remanded the case in order ‘to allow the district court to find whether or not [the plaintiff] does have a protected liberty or property interest….’”30 On remand, the plaintiff sought discovery on that issue because it had not been addressed before.31 But the trial court concluded the issue could be decided on the original record and ruled the plaintiff did not have a protected interest.32

In the second appeal, the Sixth Circuit reversed, finding the district court abused its discretion. Even though the lawsuit had been pending for several years, there was no reason for the plaintiff to have previously requested the discovery, as the issue hadn’t come up until after the first appeal. What little relevant evidence there was in the original record was insufficient to support the summary judgment for the defendants.33 The Sixth Circuit distinguished other cases where the remanded issue “had been fully litigated at trial” and, thus, the issues on remand did not warrant the reopening of the record.34

Thus, if the issue on remand is one that did not receive much attention at the time of the first trial, it may be proper for a party to ask and the trial court to reopen discovery on that issue. But reopening discovery may not be proper if the original record (trial exhibits, testimony, or both) will sufficiently address the issue. And other factors — the timing of the party’s request and the date scheduled for the retrial — also may militate against reopening discovery.

Changed circumstances may justify the reopening of discovery, as well. For example, in City of Pomona v. SQM North America Corp., 866 F.3d 1060 (9th Cir. 2017), the appellate court had earlier reversed the exclusion of a party’s expert. On remand, the party moved to reopen discovery to allow the expert to supplement his report in light of scientific developments that occurred while the appeal was pending; the trial court denied the motion. The Ninth Circuit held this was an abuse of discretion.

Another example is a compulsory medical exam (CME) in a personal injury case.

Although not involving a remand of any kind, Royal Caribbean Cruises v. Cox, 974 So. 2d 462 (Fla. 3d DCA 2008), is instructive. In Cox, the trial court denied a defendant’s motion to compel the plaintiff to undergo a third CME because the plaintiff underwent surgery.

On certiorari review, the Third District held the defendant was entitled to the CME because the plaintiff’s “physical condition underwent substantial changes” as a result of the surgery.35 The trial court’s order prevented the defendant from assessing the effectiveness of the surgery, the plaintiff’s condition at the time of trial, and his future prognosis. The Third District wrote the trial court could focus the CME “to a limited determination of the effect of the second shoulder operation on Cox’s condition.”36

A remand for a new trial presents concerns similar to those in Cox. And, as to whether there should be another CME, there are good arguments on both sides. The resolution of an appeal can take a few years from the filing of the notice of appeal to the order on any motion for rehearing, especially where the court reverses, since the court will always write an opinion. In those intervening years, certain opinions of the CME doctor should not change, namely, the existence of an injury, the nature of the injury, the permanency of the injury, and the relation of the injury to the alleged negligence. It may be necessary, however, for the CME doctor to reassess impairment because of treatment following the trial or, as in Cox, a surgery. But, as indicated in Cox, the trial court could limit the subsequent CME to the effect of the surgery on the plaintiff’s condition.

Because reopening discovery is discretionary, a party who wants to conduct more discovery for the retrial should file a motion asking for such. In the motion, the party should explain the nature of the additional discovery it wants, as well as why that discovery is necessary in light of the reversal for a new trial. The parties and the trial court should keep in mind, however, that a remand for a new trial is not a license to relitigate the entire case.

Generally, the party will not be able to seek immediate review by certiorari if the trial court denies the discovery, a rule which applies to all stages of a case, not just on remand,37 unless “the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim.”38 This was the basis of the Third District’s certiorari jurisdiction in Cox.

Summary Judgment
Unlike discovery, there do not appear to be restrictions on the parties’ pursuit of summary judgment on remand for a new trial. Fla. R. Civ. P. 1.510(a) allows a party to “move for a summary judgment…at any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.”39 A party cannot, however, move for summary judgment once the trial starts.40

Transcripts of testimony from the first trial can be used as summary judgment evidence. Fla. R. Civ. P. 1.510(c) defines “summary judgment evidence” as “affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence.” There is no reason to treat trial testimony any differently than deposition testimony so long as a certified transcript is offered.

An older Florida Supreme Court case under a prior version of the summary judgment rule supports this view: “We have the view that [on retrial, after the Supreme Court affirmed an order granting a new trial,] pertinent excerpts from the transcription of the testimony introduced in the first trial was easily as dependable for the purpose of testing the motion as depositions, admissions[,] and affidavits would have been.”41

The federal rule is similar. Fed. R. Civ. P. 56(c)(1) provides that summary judgment evidence “includ[es] depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” as long as they can “be presented in a form that would be admissible at trial.” As one federal circuit court forcefully wrote, “there is no sensible rationale which would preclude reliance on sworn testimony faithfully recorded during the conduct of a judicially supervised adversarial proceeding. All of the hallmarks of reliability attend upon such trial transcripts.”42

Agreements from the First Trial
Certain agreements that were made for the first trial are binding for the purpose of the second trial. The parties can use these agreements, along with transcripts of trial testimony, to narrow the issues for retrial.

In Mugge v. Jackson, 39 So. 157, 158 (Fla. 1905), there was a retrial after a reversal by the Supreme Court. Over the plaintiff’s objection, the trial court allowed the defendant to introduce an agreement on the facts of the case that the parties’ attorneys had made in the first trial. On appeal, the court rejected the plaintiff’s arguments urging this was error. It held: “The rule is that such agreements, when their terms are not limited to a particular occasion or temporary object, may be used on a second trial.”43 The First District recently cited Mugge for that proposition.44

Federal law provides more guidance. Wheeler v. John Deere Co., 935 F.2d 1090, 1097-99 (10th Cir. 1991), summarizes that law nicely. It provides that agreements are not absolute, and a trial court is vested with broad discretion to determine whether the interests of justice require setting it aside. Specifically, the court stated: “Whether a stipulation entered into for a particular trial should remain binding during a retrial of the same case depends on the nature of the stipulation and the circumstances underlying its formulation[.]”45 If the agreement was made for the purpose of relieving the other party from proving certain facts, or it was made by counsel on the record, the agreement can be used as proof of facts at the second trial. But the trial court may set the agreement aside if it was made expressly for just the first trial or if it was conclusory and not detailed. A trial court also may set aside an agreement where it was not actually an agreement on facts, but statements the party would not contest certain facts at trial.

For example, in Wheeler, the 10th Circuit held the district court did not abuse its discretion when it declined a party’s request to withdraw a formal statement of facts it made and reduced to writing during the first trial, which of course is distinguishable from when a party simply does not contest certain facts. In Wheeler, the party did not dispute the agreement’s truth. Instead, it complained about the other party’s advantageous use of the agreement in the second trial. “Under these circumstances,” reasoned the 10th Circuit, “we cannot say that holding [the party] to its judicial admissions resulted in manifest injustice.”46 Accordingly, the 10th Circuit held the district court did not abuse its discretion when it denied the party’s request to withdraw the stipulation.

On remand, a party should carefully review the original record and trial transcript, both to see what it agreed to and what the other party agreed to. Particular attention should be paid to answers to discovery responses (such as requests for admissions) and the joint pretrial stipulation, as well as any stipulations on the record.

Using Testimony from the First Trial at the Second Trial
Generally, under F.S. §90.801(2)(a), a prior inconsistent statement can be used as substantive evidence, and not just for impeachment, when it is “[i]nconsistent with the declarant’s testimony and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding or in a deposition.”47

For use as nonimpeachment evidence, the Florida Evidence Code allows a party to use the testimony from the first trial as substantive evidence in the second. According to Florida State University Law Professor Charles Ehrhardt, testimony from a prior trial can be admitted whether the witness is available or not.48 But Ehrhardt also says, “Counsel should be very cautious in relying on [§]90.803(22).”49 He notes a case from the First District, Grabau v. Department of Health, Board of Psychology, 816 So. 2d 701, 709 (Fla. 1st DCA 2002), in which the court found the statute unconstitutional and observed that Grabau applied to both civil and criminal cases.

There doesn’t appear to be a decision from another district conflicting with Grabau. So, a party will be limited to using prior testimony as substantive evidence only when the witness is unavailable for the second trial, unless, as noted above, it is inconsistent with the witness’ present testimony.

If, in its opinion, the appellate court also holds the trial court should not have admitted certain evidence because a party did not lay a sufficient predicate, the trial court must give that party a new opportunity in the second trial to do so under the terms of the appellate court’s opinion.50

Attorneys’ Fees
When the party who ultimately prevails in the second trial did not cause or contribute to the error that led to the reversal for the new trial, that party’s reasonable attorneys’ fees, if entitled to them, should include the fees for the first trial. In Abner v. Kansas City Southern Railway Co., 541 F.3d 372 (5th Cir. 2008), the first trial ended in a mistrial when the jury could not reach a verdict. After the plaintiffs’ obtained a successful result in the second trial, the district court awarded the plaintiffs attorneys’ fees, under 42 U.S.C. §1988, which included some of the work done in the first trial. The Fifth Circuit held the district court did not abuse its discretion, because the plaintiffs did not cause or contribute to the mistrial, and work done during the first trial contributed to the plaintiffs’ success in the second trial.

But the successful party should not recover fees for the first trial when that party caused or contributed to the reversal of the result of the first trial. In Daniels v. Hawkins, No. Civ.A. 96-009 JJF, 2004 WL 1375298 (D. Del. June 15, 2004), the district court declined to award the plaintiff fees for the first trial, which the appellate court reversed. Although the plaintiff succeeded at the second trial, it was the plaintiff who offered the evidence, the admission of which the appellate court found to be reversible error. Similarly, in Shott v. Rush-Presbyterian-St. Luke’s Medical Center, 338 F.3d 736 (7th Cir. 2003), the ultimately successful plaintiff’s unreasonable trial strategy led to the trial court’s setting aside of the first trial’s verdict; the court concluded the plaintiff should not be awarded fees for the first trial.

Accordingly, the reasonableness of the prevailing party’s recovery of fees for the first trial should take into account why the first trial was reversed and to what extent the error can be attributed to either party. If the prevailing party caused the reversal, he or she should not recover and vice versa. The outcome in closer cases — e.g., where both parties contributed to the reversal, or where the blame lies primarily with the trial court — will depend on a careful reading of the appellate court’s opinion reversing the first trial.

Another point about attorneys’ fees is that a proposal for settlement (PFS) served by a party before the first trial is still effective in subsequent proceedings. Thus, in Kaufman v. Smith, 693 So. 2d 133 (Fla. 4th DCA 1997), the Fourth District held the defendant’s PFS to the plaintiff before the first trial, which the plaintiff rejected, was still effective after the plaintiff’s appeal and the court’s reversal for a new trial. The verdict reached in the second trial triggered the application of the PFS statute. It was irrelevant that the defendant had made a second PFS before the retrial which, in light of the second verdict, would not have triggered the statute, because the defendant acquired a statutory right to fees and costs after the plaintiff rejected the first PFS.

Costs
If a cost judgment was entered in favor of the victor of the first trial, it must be vacated when the underlying judgment is reversed on appeal.51 Following the second trial, the award of costs for the first trial appears to be governed by a standard similar to attorneys’ fees. This is despite the clear, plain language of the costs statute, which states in part: “The party recovering judgment shall recover all his or her legal costs and charges which shall be included in the judgment….”52

In Sears, Roebuck & Co. v. Richardson, 343 So. 2d 678 (Fla. 1st DCA 1977), the first trial ended in a mistrial for the plaintiff’s improper conduct of attempting to discuss a witness’ testimony with a juror. The trial court denied the defendant’s motion for costs, and the defendant sought certiorari review of that order. The First District denied the defendant’s petition on the ground the matter was premature. Even though F.S. §57.041(1) was materially identical at that time, the appellate court did not cite it. Instead, it said, “In the event of a judgment favoring the plaintiff, we see no reason why, if the trial court should so determine, the amount of costs occurring because of the conduct of the plaintiff, causing the mistrial, should not be deducted from the amount awarded in said judgment.”53 Arguably, this was dictum, since it was completely unnecessary to the court’s denial of the petition, and again it conflicts with the language of the costs statute.

The First District, however, did not repudiate the statement in a later case. In Otis Elevator Co. v. Bryan, 489 So. 2d 1189 (Fla. 1st DCA 1986), the court held a plaintiff could recover costs for both trials in which the first trial resulted in a mistrial because of a hung jury, which was not the fault of the plaintiff. The court distinguished Richardson as involving a mistrial caused by the prevailing party. In the case before it, the First District held that the ultimately prevailing party should be entitled to recover costs for the first trial, reasoning “there was no misconduct, or any conduct for that matter, by the prevailing party which caused the mistrial.”54

The Second District’s opinion in Thornburg v. Pursell (Thornburg II), 476 So. 2d 323 (Fla. 2d DCA 1985), appears to present a third circumstance — in which neither party was at fault for the reversal. In that personal injury action, the first trial ended in a verdict for the plaintiffs, which they successfully appealed as inadequate. The appellate court ordered a new trial. The opinion in the first appeal did not assign blame to any party.55 Following a second, and larger, verdict for the plaintiffs, the trial court denied the plaintiffs costs for the first trial. On appeal, the Second District held this was error because the plaintiffs ultimately prevailed in the action.

Interest
In cases involving damages for a plaintiff’s out-of-pocket, pecuniary losses (like a breach-of-contract case), the successful plaintiff is entitled as a matter of law to prejudgment interest from the date of the loss.56 Accordingly, when a judgment in such a case is reversed and the case remanded for a new trial, the plaintiff is entitled to prejudgment interest from the date of the loss if the plaintiff prevails in the retrial.57

In personal injury actions or other actions in which the damages are too speculative to liquidate before final judgment, a successful plaintiff generally is not entitled to prejudgment interest; interest runs from the date of the judgment.58 On remand, it follows that, if the plaintiff in such an action wins at the retrial, interest will be computed from the date of that ultimate judgment, assuming it is affirmed on a subsequent appeal. The result is different, however, if the remand was for a new trial on liability only, leaving the verdict undisturbed as to damages, because the damages are liquidated at the time of the verdict.59

Conclusion
It is true that when the appellate court reverses and remands for a new trial, the appellee has lost its judgment and must litigate a new trial, at which it very well may lose. Similarly, while the appellant gets the new trial it sought, it also must litigate a second trial. But the remand merely puts the parties back in the position they would have been in had the first trial never occurred. Because it does not restart the case at the filing of the complaint, a lot of the work is already done. The pleadings normally will be closed and the case at issue; the parties should be able to have the case set for trial quickly. Most of the discovery will be done. Summary judgments utilizing testimony from the first trial can narrow the issues, as will agreements. And the possibility of being hit with attorneys’ fees and costs, maybe for both trials, could encourage settlements, avoiding the second trial altogether. In short, reversal and remand for a new trial does not take the case back to square one.


1 Philip J. Padovano, Appellate Practice at §20:8 (2017 ed.).

2 See id.

3 Fla. R. App. P. 9.330(a).

4 See id.

5 Fla. R. App. P. 9.340(b).

6 Wilcox v. Hotelerama Assocs., 619 So. 2d 444, 445-46 (Fla. 3d DCA 1993) (citations omitted).

7 See Padovano, Appellate Practice at §20:10.

8 Wilcox, 619 So. 2d at 446.

9 Id.

10 Pritchett v. Brevard Naval Stores Co., 185 So. 134, 135-36 (Fla. 1938).

11 Padovano, Appellate Practice at §20:11.

12 Id. at §20:12.

13 See Spitz v. Prudential-Bache Sec., 549 So. 2d 777, 778 (Fla. 4th DCA 1989) (trial court did not “err[] in limiting appellants’ presentation to the jury to the question of whether there was fraud on the part of appellees directed solely to the arbitration clause, as compared to the broader question of whether there was fraud in the inducement as to the entire account agreement,” because in prior appeal “the cause was remanded to the trial court for determination of whether there was fraud in the making of the agreement to arbitrate”).

14 Motions to strike and motions to dismiss fall under this rule. See Leeds v. C.C. Chem. Corp., 280 So. 2d 718 (Fla. 3d DCA 1978). Motions for summary judgment do not. See Parkinson v. Kia Motors Corp., 54 So. 3d 604, 606 (Fla. 5th DCA 2011).

15 Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981); Conn. Gen. Life Ins. Co. v. Dyess, 588 So. 2d 1045 (Fla. 5th DCA 1991).

16 Padovano, Appellate Practice at §20:11.

17 Don Suntan Corp. v. Tanning Res. Labs., 505 So. 2d 35, 36 (Fla. 5th DCA 1987).

18 Fitchner v. Lifesouth Cmty. Blood Centers, 88 So. 3d 269, 276 (Fla. 1st DCA 2012).

19 Fla. Air Conditioners, 390 So. 2d at 175.

20 Id. at 176.

21 Id. (citation and footnotes omitted); see also State ex rel. Palmer v. Hewitt, 156 So. 236, 236-37 (Fla. 1934) (“It is within the province of the circuit court, when its judgment in favor of a plaintiff has been reversed, with directions, to have such further proceedings as may be in accordance with the opinion of the Supreme Court to permit, in its sound discretion, appropriate amendments to plaintiff’s pleadings designed to more clearly develop the real controversy between the parties, so long as the nature and the theory of the plaintiff’s case as presented to the Supreme Court in the first instance is not entirely changed or abandoned.” (citation omitted)); Hollingsworth v. Arcadia Citrus Growers Ass’n, 18 So. 2d 159 (Fla. 1944) (In the first appeal, the Supreme Court reversed chancery decree that resulted from final hearing and remanded to allow plaintiff to make appropriate amendments to pleadings and for parties to present further evidence; after amendments and presentation of additional testimony, chancellor found for plaintiff; in second appeal, Supreme Court held: “The challenged amendment to the bill of complaint is not inconsistent with or repugnant to the original bill and the ultimate purpose of the original bill and the amendment appears to be identical. The amendment as made and allowed simply supplied the necessary elements of a general creditors’ bill and was permissible under our chancery practice.”) (citation omitted).

22 Fla. Air Conditioners, 390 So. 2d at 176.

23 Padovano, Appellate Practice at §20:11.

24 Fla. R. Civ. P. 1.430(b).

25 See Wellner v. E. Pasco Med. Ctr., 975 So. 2d 442, 444 (Fla. 2d DCA 2007); Thompson v. Deane, 703 So. 2d 1215, 1216 (Fla. 5th DCA 1997); Baker v. Mathew, 518 So. 2d 290, 290 (Fla. 5th DCA 1987).

26 See Walling v. Jacksonville Paper Co., 317 U.S. 564, 572 (1943); Pac. Gas & Elec. Co. v. United States, 668 F.3d 1346, 1354 (Fed. Cir. 2012); Hamilton v. Allen-Bradley Co., 244 F.3d 819, 827 n.1 (11th Cir. 2001). The California Supreme Court has held that, on reversal and remand for a new trial, discovery automatically is reopened and the cutoff date recalculated based on the date for the new trial, but the holding was based on a statute for which there is no equivalent in Florida. See Fairmont Ins. Co. v. Sup. Ct., 991 P.2d 156 (Cal. 2000).

27 Bakalar, 851 F. Supp. 2d at 492-93 (internal quotation marks, alteration brackets, and citations omitted).

28 Accord Fruge v. Ulterra Drilling Tech., 883 F. Supp. 2d 692, 696 (W.D. La. 2012).

29 Bakalar v. Vavra, 500 F. App’x 6, 9 (2d Cir. 2012) (unpublished).

30 Yashon, 737 F.2d at 549 (quoting from prior opinion).

31 Id.

32 Id.

33 Id. at 556.

34 Id. (distinguishing Purex Corp. v. Proctor & Gamble, 664 F.2d 1105 (9th Cir. 1981); Otero v. Mesa Cnty. Valley Sch. Dist. No. 51, 628 F.2d 1271 (10th Cir. 1980); Blizzard v. Frechette, 601 F.2d 1217 (1st Cir. 1979); Hennessy v. Schmidt, 583 F.2d 302 (7th Cir. 1978)).

35 Cox, 974 So. 2d at 465-66 (citation omitted).

36 Id. at 466.

37 See Padovano, Appellate Practice at §20:8.

38 Giacalone v. Helen Ellis Mem’l Hosp. Found., 8 So. 3d 1232, 1234-35 (Fla. 2d DCA 2009) (footnote and citations omitted). This was the basis of the Third District’s certiorari jurisdiction in Cox; though on Cox’s facts, Judge Green’s dissent that the district court lacked jurisdiction was correct. See Cox, 974 So. 2d at 468-70.

39 Emphasis added.

40 Philip J. Padovano, Civil Practice at §13:2 (2017-2018 ed.).

41 Bradley v. Assocs. Discount Corp., 67 So. 2d 913, 915 (Fla. 1953); see also Henry P. Trawick Jr., Trawick’s Fla. Practice & Procedure at §25:8 (2017-2018 ed.) (citing Bradley).

42 Advance Fin. Corp. v. Isla Rica Sales, 747 F.2d 21, 27 (1st Cir. 1984).

43 Mugge, 39 So. at 158-59 (citations omitted).

44 See Dortch v. State, 137 So. 3d 1173, 1177 (Fla. 1st DCA 2014).

45 Wheeler, 935 F.2d at 1098.

46 Id. at 1099.

47 See also Charles Ehrhardt, Evidence at §608.4 (2015 ed.).

48 Id. at §803.22.

49 Id.

50 Wolfe v. Gencorp, Inc., 529 So. 2d 1154, 1156 (Fla. 1st DCA 1988).

51 Thornburg v. Pursell (Thornburg II), 476 So. 2d 323, 324 (Fla. 2d DCA 1985).

52 Fla. Stat. §57.041(1) (emphasis added).

53 Richardson, 343 So. 2d at 679-80.

54 Id.

55 See Thornburg v. Pursell (Thornburg I), 446 So. 2d 713 (Fla. 2d DCA 1984).

56 Argonaut Ins. Co. v. May Plumbing Co., 474 So. 2d 212, 215 (Fla. 1985).

57 Biscayne Supermarket v. Travelers Ins. Co., 485 So. 2d 861, 861 (Fla. 3d DCA 1986).

58 Amerace Corp. v. Stallings, 823 So. 2d 110 (Fla. 2002). There is an exception when the trial court finds the plaintiff has made actual, out-of-pocket payments on past medical expenses before the entry of judgment. Alvarado v. Rice, 614 So. 2d 498 (Fla. 1993).

59 Griefer v. DiPietro, 708 So. 2d 666, 672-73 (Fla. 4th DCA 1998).


ADAM RICHARDSON is a graduate of the Florida State University College of Law. He currently practices appellate law as an associate at Burlington & Rockenbach, P.A., in West Palm Beach. Previously, he was a judicial clerk to Judge Robert M. Gross at the Fourth District Court of Appeal.



[Revised: 06-22-2018]