Not a Foregone Conclusion: The Importance of Advocating for a Favorable Remand Instruction in a Civil Appeal from a Final Judgment.

Author:Fernald, Courtney

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. [section]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. (1) In reversing, the appellate court originally remanded the case with instructions to conduct a new trial. (2) 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. (3)

Writing for the majority, Judge Lucas provided a thorough background and analysis of the appellate court's discretion regarding remand instructions in civil cases. (4) 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. (5) 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." (6) He cautioned that the court's discretion in fashioning remand instructions is far from boundless and that, in an appeal concerning the...

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