Not a Foregone Conclusion: The Importance of Advocating for a Favorable Remand Instruction in a Civil Appeal from a Final Judgment
Imagine you represent the appellant in a civil appeal from a final judgment. Your client was the plaintiff at the trial court level, and you are convinced beyond any doubt that the trial court committed reversible error by applying an incorrect burden of proof at trial. You craft a brilliant argument in your briefs, which you are certain will convince the panel of appellate judges to rule in your client’s favor. Once the briefing and any oral argument is complete, you anxiously anticipate the appellate court’s opinion. When it arrives, you are thrilled to discover that the appellate court has, indeed, reversed the trial court’s decision. The appellate court does not mandate a new trial on remand, but rather affords the trial judge the discretion to either conduct a new trial or to simply reconsider the evidence and issue a new decision utilizing the correct burden of proof. The trial judge elects the latter and, more than a year after hearing the evidence at trial, writes a new opinion against your client citing to the correct burden of proof. What happened? Despite succeeding in the appeal, your client is arguably worse off than had you not appealed at all, having now incurred the additional expense of appellate fees only to find himself or herself in the exact same position on remand. What, if anything, could have been done differently to prevent this outcome? This article discusses the scope and application of the appellate court’s discretion in crafting instructions on remand in a civil appeal from a final judgment and encourages practitioners to give greater attention and focus to advocating for a particular remand instruction.
The scope of appellate remand in a civil appeal from a final judgment is addressed in F.S. §59.35 (2019), which provides:
An appellate court may, in reversing a judgment of a lower court brought before it for review by appeal, by the order of reversal, if the error for which reversal is sought is such as to require a new trial, direct that a new trial be had on all the issues shown by the record or upon a part of such issues only. When a reversal is had, with direction for new trial on a part of the issues, all other issues shall be deemed settled conclusively in favor of the appellee.
Thus, the instructions that the appellate court gives to the trial court on remand when it reverses a civil judgment rest at least in some measure on the appellate court’s discretion. The scope and extent of that discretion has not been given much attention by Florida appellate decisions, until recently.
The Second District Clarifies the Scope of the Court’s Discretion in Crafting Remand Instructions — Or Does It?
The Second District Court of Appeal recently addressed the history and scope of the appellate court’s discretion in crafting remand instructions in Tracey v. Wells Fargo Bank, N.A., 264 So. 3d 1152 (Fla. 2d DCA 2019). In Tracey, a foreclosure case, the trial court erroneously permitted Wells Fargo to amend its complaint at trial to rely on modification agreements that Wells Fargo had not referenced in or attached to its operative complaint. In reversing, the appellate court originally remanded the case with instructions to conduct a new trial. The court subsequently granted Tracey’s motion for rehearing as to the remedy imposed on remand and issued a substituted opinion remanding with instructions to enter an involuntary dismissal in Tracey’s favor.
Writing for the majority, Judge Lucas provided a thorough background and analysis of the appellate court’s discretion regarding remand instructions in civil cases. He began by acknowledging the seemingly disparate instructions issued in residential foreclosure opinions (as well as other types of civil cases), and that Florida appellate decisions rarely delve into an analysis justifying a particular remand instruction. He then scrutinized a number of examples of remand instructions in particular foreclosure and civil cases in an attempt to discern a common ground driving the courts’ discretionary decisions on the matter and concluded that “[r]emand directions…seem always to turn upon some basic postulate of fairness, which is, in turn, an exercise of a court’s discretion.” He cautioned that the court’s discretion in fashioning remand instructions is far from boundless and that, in an appeal concerning the sufficiency or admissibility of the evidence presented at trial, the appellate court’s discretion regarding remand is “bounded both by the substantive relief sought within the appeal and the strong preference for finality of trial proceedings.”
Ultimately, the majority in Tracey established that “when fashioning remand for a civil appeal where the party with the burden of proof fails to sufficiently plead the claim it presents at trial or to establish a basis in admissible evidence for a claim at trial,” the default instruction is to remand for entry of an involuntary dismissal absent “exceptional legal or factual circumstances” that would justify affording the party another bite at the apple to prove its case. Applying those principles to the case before it, the majority concluded that Wells Fargo had not articulated any exceptional legal or factual circumstances entitling it to a second trial, and that Tracey was entitled to the relief of an involuntary dismissal on remand.
Judge Sleet authored a dissenting opinion in which he argued that the majority went too far and “created a new, sweeping standard for the scope of remand which it mandates will now apply to all civil appeals in the Second District.” Judge Sleet argued that the standard announced by the majority conflicts with both the Florida Rules of Civil Procedure and precedent from every Florida district court of appeal. Judge Sleet reasoned that Florida appellate courts, including the Second District, have long distinguished between cases in which a party submitted some evidence supporting its claims, whether admissible or not (in which case remand is for a new trial) and cases in which a party submitted no evidence supporting its claims (in which case remand is for involuntary dismissal). This distinction, he argued, is soundly based on Fla. R. Civ. P. 1.420(b), which provides that involuntary dismissal is appropriate only when “on the facts and the law the party seeking affirmative relief has shown no right to relief[,]” as opposed to a situation in which a party has based its relief on erroneously admitted evidence.
Judge Sleet further supported his analysis with the long line of cases holding that a party cannot be penalized for relying on a trial court ruling that is subsequently deemed erroneous, and must be given the opportunity on remand to present its case under the corrected ruling. Applied to the case at bar, Judge Sleet argued that the majority’s instructions on remand unfairly placed Wells Fargo in a worse position than it would have been in had the trial court properly denied its motion to amend the complaint at the outset of the trial. Judge Sleet concluded, contrary to the majority, that “involuntary dismissal is not and should not be the default disposition of all civil appeals; rather, it is only warranted where the plaintiff failed to offer any evidence at all — whether admissible or not.” While Judge Sleet agreed with the majority that equitable considerations can influence appropriate remand instructions, he concluded that those equities were more dependent on the type of error identified on appeal rather than any exceptional circumstances of the particular parties involved.
Recognizing the important points raised and cases discussed in Judge Sleet’s dissent, the majority certified this question of great public importance to the Florida Supreme Court:
When a party with the burden of proof in a civil case fails to plead the claim presented at trial or to establish a basis in admissible evidence for a claim at trial, does a district court of appeal have equitable discretion to fashion the scope of remand after a reversal on appeal, and, if so, what governs or constrains the exercise of that discretion?
Unfortunately, neither party invoked the Florida Supreme Court’s discretionary jurisdiction to review the Second District’s opinion, so the certified question went unanswered.
Subsequent Decisions Applying Tracey Further Highlight the Importance of Remand Advocacy
Tracey’s holding was again applied by the Second District in the case of Green Emerald Homes, LLC v. 21st Mortg. Corp., 44 Fla. L. Weekly D1449 (Fla. 2d DCA June 7, 2019). In that case, a different three-judge panel considered an appeal of a foreclosure judgment wherein the appellant argued that the bank had failed to introduce legally sufficient proof of the amount due. At trial, the bank admitted the original note and mortgage, default letter, and payment history; however, the bank failed to admit a modification that its only witness testified increased the principal amount due. The trial court entered a judgment in favor of the bank but subtracted the additional principal amount claimed under the unsubstantiated modification, and the appellate court reversed. The court held that without admissible evidence of the modification or its contents, it was impossible to determine the amount due. Citing Tracey, the court remanded with instructions to enter an involuntary dismissal rather than afford the bank an additional opportunity to prove its case.
Interestingly, Green Emerald also spawned a dissenting opinion concerning the remand instructions. Judge Villanti, while concurring in the majority’s determination to reverse the damages awarded in the final judgment, dissented from the majority’s decision to order an involuntary dismissal on remand, and opined that he would “reverse only the damages awarded in the final judgment and remand for further proceedings on that issue alone.” Judge Villanti’s dissent, while hinting that he would have permitted further proceedings on the damages issue on remand, was premised primarily on his conclusion that the majority’s opinion unfairly stripped the bank of its security interest based upon a misconception of due process concerns. His dissent does not, therefore, discuss the new trial versus involuntary dismissal issue, nor does it reference or discuss Judge Sleet’s dissenting opinion in Tracey.
The Fourth District Court of Appeal also agreed with and applied Tracey’s holding in Morales v. Fifth Third Bank, 275 So. 3d 197 (Fla. 4th DCA 2019). There, similar to Tracey, Fifth Third Bank premised the amounts sought at trial on a modification that was neither pled nor attached to the operative complaint. The trial court denied the lender’s motion for involuntary dismissal, agreeing with the bank’s argument that it need not amend the complaint because it was suing on the original note, and the modification was not the operative document in the case. The Fourth District reversed and, applying the Tracey court’s analysis and holding, remanded with instructions for entry of an involuntary dismissal. None of the judges in Morales dissented.
As of the writing of this article, only the Fourth District has issued an opinion passing upon the standard established by the Second District in Tracey. It is possible, then, that the First, Third, or Fifth districts may at some point issue an opinion conflicting with Tracey and Morales and either agreeing with Judge Sleet’s dissent in Tracey or articulating their own parameters for the appellate court’s discretion on remand. It is also of course possible that the Florida Supreme Court will one day resolve the issue. In the meantime, though, one thing is clear: These recent cases elucidate the critical role the court’s remand instructions play in the practical outcome of an appeal of a final judgment, and the equally critical role of advocacy on the issue. Indeed, when a final judgment is reversed, the remand instructions have the potential to make or break the case for either party. The success or failure of that specific piece of advocacy may be the difference between an ultimate victory and a complete loss for the client, regardless of whether he or she won on the substantive issues addressed in the appeal. The remainder of this article further expands on the importance of remand instructions as a focus of advocacy for both the appellant and the appellee.
Representing the Appellant: The Danger of Winning the Battle to Lose the War
While Tracey and its progeny mainly illustrate the disastrous consequences that can befall an appellee who suffers an unfavorable remand instruction, the appellant’s attorney has an equally important job of framing his or her arguments to cogently advocate for the remand instruction most favorable to the appellant, whether that be an involuntary dismissal or, as in the opening example posited in this article, a new trial on all issues. Again, the success or failure of that argument may be the difference between a complete victory and the infuriating situation in which the client ends up worse off despite succeeding on appeal. Using the example of the involuntary dismissal versus new trial determination discussed in Tracey, a new trial may well result in a repeat victory for the appellee, this time without reversible error. Accordingly, it is critical for the appellant in that situation to affirmatively advocate for involuntary dismissal on remand, and to demonstrate to the appellate court why involuntary dismissal is the appropriate remand instruction under the law as applied to the circumstances of the particular case.
Another example of when remand instructions should be a critical focus for the appellant is when the error complained affected only one of multiple issues at trial. As indicated above, when a reversible error warrants a new trial, Florida law gives the appellate court discretion to order a new trial as to the entire case or as to a particular issue only. Florida courts have held, however, that when an appellate court grants a new trial as to one issue, it must order retrial of other issues if the issues are “inextricably intertwined.” The reasoning for this is that “if the trial court were to retry only one of two such intertwined issues to a second jury, while maintaining the vitality of the first jury’s findings on the other issue, it would cause confusion and uncertainty and, thus, an unfair trial.” 
Examples of issues that courts have found to be inextricably intertwined include issues of liability and damages where both require consideration of the same evidence and issues of liability and comparative fault. So, for example, the appellant’s attorney would want to give strong consideration to the scope of remand in the case of an appeal from a damages judgment when the reversible error related only to the damages element of the case. If the appellate court were to remand for a new trial on damages only, any findings by the judge or jury as to liability would remain intact. If those findings were also germane to the issue of damages, the obvious inclination would be for the judge or jury to rule the same way, to the appellant’s detriment. In that case, the appellant is far better off asking the appellate court to remand the case for a new trial on both liability and damages, and can do so by arguing that the issues are inextricably intertwined.
Representing the Appellee: The Danger of Throwing the Baby Out with the Bath Water
Much like any other adversarial legal proceeding, any seasoned appellate practitioner will tell you that they have won appeals they expected to lose and lost appeals they expected to win. No matter how solid you believe your arguments to be, it is nearly impossible to predict the outcome of the appellate court’s decision with certainty. Accordingly, it is wise for an attorney representing an appellee to give some thought to what the remand instructions might be if the appellate court were to reverse the trial court’s decision, and whether there is an opportunity to advocate for a remand instruction that will minimize the loss to the client. As the Second District cautioned in Tracey:
Lawyers and litigants who proceed to trial under ill-considered pleadings or without adequate, admissible evidence to prove their cases do so at their own peril. But, on occasion, there may be exceptional circumstances that, in fairness, merit a return to the trial court for further adjudication following an appellate court’s decision.
Once an error in pleading or proof has been asserted, it is up to the appellee’s attorney to affirmatively advocate (assuming, of course, that the argument can be made in good faith) that, should the appellate court reverse the judgment, circumstances warrant a new trial. This is particularly critical in the Second and Fourth district courts of appeal, where the announced default instruction is involuntary dismissal. Similarly, in the example discussed above, where the error addressed on appeal is as to only one issue in the case, it would behoove the appellee to argue for a remand instruction limiting any retrial to that issue only. Thus, the appellee’s attorney would want to demonstrate to the appellate court in that case that, contrary to the appellant’s argument, the issues were not inextricably intertwined.
The scope of a Florida appellate court’s discretion to fashion remand instructions in a civil appeal from a final judgment is not set in stone, nor is it possible to predict with certainty how a particular panel of appellate judges will choose to exercise that discretion in a particular case. It is possible, however, to make remand instructions an intentional focus of appellate advocacy, such that practitioners make sure to give the issue the attention it deserves when crafting their arguments on appeal. By doing so, practitioners can at least be certain that they are making every effort to put their client in the best possible position on remand, regardless of whether they win or lose on the substantive issues on appeal.
 Tracey, 264 So. 3d at 1157.
 Tracey v. Wells Fargo Bank, N.A., 2018 WL 1440058, at *10.
 Id. at 1169; Tracey v. Wells Fargo Bank, N.A., 2019 WL 943202, at *1.
 Tracey, 264 So. 3d at 1157-1169.
 Id. at 1157-59.
 Id. at 1161.
 Id. at 1168.
 Id. at 1165-66.
 Id. at 1169 (Sleet, J., dissenting).
 Id. at 1169-70.
 Id. at 1170-71 (emphasis added).
 Id. at 1172-73.
 Id. at 1173.
 Id. at 1174-75 (internal quotations omitted).
 Id. at 1175.
 Green Emerald Homes, 44 Fla. L. Weekly D1449, at *4-5.
 Id. at *19-20.
 Id. at *20-21.
 Id. at *21-26.
 Id. at *25-26.
 Morales, 275 So. 3d at 199.
 Id. at 200.
 See id. at 1165 (“[W]e are hopeful that litigants will be able to more cogently frame their arguments in civil appeals for a particular remand by knowing what drives the decisions we make on this important issue.”)
 Fla. Stat. §59.35 (2019).
 R.J. Reynolds Tobacco Co. v. Prentice, 44 Fla. L. Weekly D2603 (Fla. 1st DCA Oct. 24, 2019) (citing Gasoline Prods. v. Champlin Refining Co., 283 U.S. 494 (1931)).
 Prentice, 44 Fla. L. Weekly D2603, at *9 (citing Morrison Knudson Corp. v. Fireman’s Fund Ins. Co., 175 F. 3d 1221, 1255-56 (10th Cir. 1999)).
 Id. (citing Lawson v. Swirn, 258 So. 2d 458 (Fla. 1st DCA 1972); Equitable Life Assurance Soc’y of U.S. v. Fairbanks, 400 So. 2d 550, 553 (Fla. 4th DCA 1981); Lenhart v. Basora, 100 So. 3d 1177 (Fla. 4th DCA 2012); Currie v. Palm Beach Cty., 578 So. 2d 760, 764 (Fla. 4th DCA 1991)).
 Tracey, 264 So. 3d at 1163.
This column is submitted on behalf of the Appellate Practice Section, Nicholas Ari Shannin, chair, and Thomas Seider, editor.