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.
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...