Decision Made in on Court Cannon Be Heard Again in Another Court

Reversed and Remanded for a New Trial: A Guide to Retrial in Civil Cases

Adam Richardson Featured Article

The trial is over. The plaintiff won. Assertive the trial estimate erred in some way, the accused appeals. Now the district court has issued its determination, and it agreed with the defendant. At the very end of the opinion are these vii words: "Reversed and remanded for a new trial." Okay, off-white plenty — we'll take a 2d become at a trial. Just what actually happens on remand? How does the first trial affect what happens earlier, during, and afterwards the 2nd i? Unfortunately, there is little on this subject to be institute in Florida caselaw. This article draws on controlling Florida decisions, helpful cases from other jurisdictions, federal decisions, and other authorities to guide united states through the remand.

Returning the Case to the Trial Courtroom
The instance is non returned to the trial court when the commune court bug its opinion. When the mandate is issued, the district court's decision becomes terminal.¹Every bit 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.ⁱⁱ

But losing parties routinely file motions for rehearing, hoping to persuade the appellate court to alter its mind. The political party has 15 days from the appointment of the decision to file the motion for rehearing, though the court tin extend that fourth dimension.³The prevailing party tin can file a response inside x days, though that, too, can be extended.^ivIf a rehearing or other post-determination 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 movement, or, if granted, until xv days after the cause has been fully determined."⁵

The fact that there is an appellate mandate makes the case on remand dissimilar than a case reaching its first trial. This is because the trial court'southward role is purely ministerial: Information technology is limited to obeying the appellate courtroom's order, and it has no discretion to alter or modify the order "in any manner, shape, or course."^viCompliance with the mandate may be enforced by filing a motility for such in the appellate courtroom.⁷

Nether certain circumstances, delaying a trial or imposing obstacles tin can constitute a violation of the appellate court's mandate. Thus, in Wilcox v. Hotelerama Associates , 619 Then. 2nd 444 (Fla. 3d DCA 1993), the Third District issued a writ of mandamus to a trial court which, post-obit reversal for a new trial, conditioned the new trial on the nonprevailing appellees' payment of appellate costs. The commune court wrote: "In light of this courtroom's specific mandate, the trial courtroom was without discretion in its obligation to proceed with the disposition of the cause without inbound a stay pending the payment of the costs of appeal."⁸In its closing instructions, the Third District told "the trial court to proceed with the advisable disposition of the cause without filibuster."⁹

Otherwise, as the Supreme Court has stated, the trial court enjoys broad discretion in the conduct of a new trial.¹⁰Philip Padovano, a retired estimate of the First District Court of Entreatment now in private practice, has made a similar ascertainment, and besides written that parties may present dissimilar prove at the retrial than they presented at the commencement trial.^elevenAll the same, in the interests of economic system and efficiency, and unless the law-of-the-example doctrine demands the opposite, both the trial court and the parties should be reluctant to revisit prior rulings or vary the show presented.

The doctrine of the law of the case is an exception to the trial court'southward discretion on remand. The police force of the example is the appellate court'southward decision on a question of law. The decision cannot be relitigated in the lower court on remand.¹²Every bit an example, if the district courtroom held the trial court abused its discretion in admitting certain testify, the trial courtroom cannot acknowledge that evidence at the retrial. Similarly, if the appellate court reverses and remands for a new trial on a specific result, the trial court must limit the presentation of evidence to that issue.¹³

Setting the Case for Trial
Fla. R. Civ. P. one.440(a) provides in part that "[a]northward action is at consequence 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."^fourteen

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

Amendments to the Pleadings
When a case is remanded for a new trial, the parties generally are non permitted to ameliorate their pleadings, merely instead must continue on the pleadings equally they were at the time of the starting time trial.^fifteenAs Padovano writes, "a remand for further proceedings cannot be used as a license to make noun alterations in the complaint or the answer."^xvi

The full general prohibition on amendments presenting new and dissimilar issues that were not authorized past the appellate court is grounded in enforcement of the court'due south mandate: If unauthorized amendments were allowed, they could get a way to avert the appellate court'southward decision.¹⁷This is estimation of the mandate past inference. If the courtroom reversed with the full general teaching to concord a new trial, necessarily it didn't authorize any amendments. Further, alteration the pleadings would have the case out of consequence and filibuster retrial.

Just the general prohibition does not use when the appellate courtroom reverses a ruling the trial court fabricated at an interlocutory stage, that is, at a signal in the proceedings in which the losing party has a right to amend. The 5th District provided the example of an appellate courtroom holding that the trial court should have dismissed the plaintiff's complaint because "the event is precisely the same as information technology would take been had the trial court dismissed the complaint in the kickoff instance."¹⁸

An example of the above exception is Florida Air Conditioners five. Colonial Supply Co. , 390 So. 2d 174 (Fla. 5th DCA 1980). During the jury trial, the plaintiff struck i 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 entreatment, the appellate court reversed the deprival of the defendants' pretrial motility to dismiss that latter theory on the ground the plaintiff's cause of action accrued before the constructive date of the statute and remanded "for further proceedings consistent herewith."^nineteenOn remand, the trial court denied the plaintiff'southward motion to amend the complaint to re-allege the other stricken theory of liability. In the second appeal, the Fifth Commune said that, in the prior appeal, it had non held that the plaintiff did not have a cause of action under the stricken theory.²⁰Thus, amendment of the complaint to re-allege that cause of activity "would not be inconsistent with or repugnant to the allegations in the original complaint; would non entirely change or abandon the nature of the plaintiff'due south case every bit presented in the first instance[;] nor introduce a new theory of recovery not theretofore asserted."²¹

The Fifth Commune also observed the amendment could exist justified to conform the pleadings to the evidence at trial considering the facts establishing the statutory theory also could constitute a cause of action not based on the statute.²²

One other betoken about the pleadings is that, on remand, the prevailing party cannot change its election betwixt a jury trial or a nonjury trial; it is stuck with the ballot it made for the showtime trial.²³This relates to the general prohibition on amendments after the general instruction for a new trial and the operation of Fla. R. Civ. P. ane.430(b) and (d).

The rule provides in office that "[a]ny party may need a trial by jury of any effect triable of right past a jury by serving upon the other party a demand therefor in writing at any time afterwards beginning of the action and not subsequently than 10 days later the service of the last pleading directed to such issue."²⁴Unless the appellate court authorized the amendment of pleadings, the x-day catamenia since the "last pleading directed to such issue" would have passed long ago.

In short, a general educational activity 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 example over over again.

Discovery
Given the express remit on remand, even with a general education for a new trial, how much leeway do the parties have to comport discovery later remand? As a general thing, Florida police force provides it is within the trial court's discretion to reopen discovery.²⁵But there does not appear to be Florida authority establishing guidelines for the exercise of that discretion inside the context of remand, or the precise effect of discovery on remand.

Federal decisions provide that the matter is discretionary, which is consequent with full general Florida law.²⁶ Bakalar 5. Vavra , 851 F. Supp. 2d 489 (S.D.Northward.Y. 2011), is helpful for our purposes. There, the court summarized federal law on reopening discovery generally:

The determination whether to hear additional show on remand is inside the sound discretion of the trial court estimate. Moreover, an appellate court's failure to specify that further evidence should exist taken on remand tin can, at about, be construed as leaving a conclusion 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 at that place has already been adequate opportunity for discovery. Courts as well consider (1) whether trial is imminent, (2) whether the request is opposed, (3) whether the non-moving political party would be prejudiced, (iv) whether the moving party was diligent in obtaining discovery inside the guidelines established by the court, (5) the foreseeability of the need for boosted discovery in light of the fourth dimension allowed for discovery by the district court, and (6) the likelihood that the discovery will pb to relevant evidence.²⁷

In Bakalar , the plaintiff brought an action for declaratory judgment against the defendants to plant that he was the rightful possessor of a piece of artwork that allegedly was expropriated by the Nazis. Originally, the district courtroom entered judgment in favor of the plaintiff; the appellate court reversed on the basis the district court applied the incorrect law. On remand, the defendants moved to reopen discovery to offer prove from ii good witnesses the district courtroom had excluded from the kickoff trial.

The commune court said the defendants' claimed demand for the evidence was apparent to the defendants before the close of discovery at the offset trial; yet they had not made any effort to disembalm the 2 experts until before long earlier the starting time trial. The court ended the defendants failed to evidence 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 prove's probative value. Thus, the court denied the mail-remand motion to reopen discovery.²⁸The Second Circuit affirmed the ruling.²⁹

Bakalar emphasizes that a reversal and remand for new trial does non prepare the clock at aught, and that the parties may be constrained past decisions made, or non fabricated, for the offset trial. So, what circumstances justify the reopening of discovery?

Yashon 5. Gregory , 737 F.second 547 (sixth Cir. 1984), involved a reversal of a summary judgment and remand, merely it is instructive. The district court entered summary judgment against the plaintiff doctor because, it ruled, the defendants afforded him due process. In the commencement appeal, the 6th Circuit reversed because the district court did not make a finding on the threshold upshot — whether the plaintiff had a protectable property interest — and "remanded the example in order 'to permit the district court to discover whether or not [the plaintiff] does have a protected liberty or holding interest….'"³⁰On remand, the plaintiff sought discovery on that issue because it had not been addressed earlier.³¹But the trial court concluded the outcome could be decided on the original record and ruled the plaintiff did non have a protected interest.³²

In the second entreatment, the Sixth Circuit reversed, finding the district court driveling its discretion. Even though the lawsuit had been pending for several years, in that location was no reason for the plaintiff to accept previously requested the discovery, as the issue hadn't come up until afterward the first appeal. What little relevant evidence there was in the original record was insufficient to support the summary judgment for the defendants.³³The 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 result on remand is ane that did non 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 event. But reopening discovery may not exist proper if the original tape (trial exhibits, testimony, or both) will sufficiently address the issue. And other factors — the timing of the party's request and the engagement scheduled for the retrial — also may militate against reopening discovery.

Changed circumstances may justify the reopening of discovery, as well. For instance, in City of Pomona five. SQM North America Corp. , 866 F.3d 1060 (9th Cir. 2017), the appellate court had earlier reversed the exclusion of a party's practiced. On remand, the party moved to reopen discovery to let the expert to supplement his report in light of scientific developments that occurred while the appeal was awaiting; the trial courtroom denied the move. The 9th Excursion held this was an abuse of discretion.

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

Although not involving a remand of whatever kind, Royal Caribbean Cruises five. Cox , 974 So. 2d 462 (Fla. 3d DCA 2008), is instructive. In Cox , the trial courtroom denied a defendant'south motion to compel the plaintiff to undergo a tertiary CME because the plaintiff underwent surgery.

On certiorari review, the Third Commune held the defendant was entitled to the CME considering the plaintiff's "physical condition underwent substantial changes" equally a result of the surgery.³⁵The trial court's order prevented the defendant from assessing the effectiveness of the surgery, the plaintiff'southward condition at the time of trial, and his futurity prognosis. The Third District wrote the trial court could focus the CME "to a express determination of the effect of the 2d shoulder operation on Cox'southward status."³⁶

A remand for a new trial presents concerns similar to those in Cox . And, as to whether there should be another CME, in that location are good arguments on both sides. The resolution of an appeal can take a few years from the filing of the notice of entreatment to the guild on whatsoever move for rehearing, especially where the court reverses, since the court volition e'er write an opinion. In those intervening years, certain opinions of the CME physician should non 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 harm considering of treatment following the trial or, as in Cox , a surgery. Merely, as indicated in Cox , the trial court could limit the subsequent CME to the result of the surgery on the plaintiff's status.

Because reopening discovery is discretionary, a party who wants to comport 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 information technology wants, as well every bit why that discovery is necessary in light of the reversal for a new trial. The parties and the trial court should go along in mind, all the same, that a remand for a new trial is not a license to relitigate the entire case.

By and large, the party will not be able to seek firsthand review by certiorari if the trial court denies the discovery, a rule which applies to all stages of a case, non simply on remand,³⁷unless "the order denying that discovery effectively eviscerates a party'south claim, defense, or counterclaim."³⁸
This was the basis of the Tertiary District'southward certiorari jurisdiction in Cox.

Summary Judgment
Unlike discovery, in that location practise non 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 whatever fourth dimension after the expiration of 20 days from the commencement of the activeness or after service of a motion for summary judgment by the agin party."³⁹A party cannot, even so, move for summary judgment once the trial starts.⁴⁰

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

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

The federal dominion 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 move only), admissions, interrogatory answers, or other materials" as long as they can "exist presented in a form that would be open-door at trial." Every bit one federal excursion courtroom forcefully wrote, "there is no sensible rationale which would forbid reliance on sworn testimony faithfully recorded during the comport of a judicially supervised adversarial proceeding. All of the hallmarks of reliability attend upon such trial transcripts."⁴²

Agreements from the Beginning Trial
Certain agreements that were fabricated for the first trial are binding for the purpose of the 2nd trial. The parties can use these agreements, along with transcripts of trial testimony, to narrow the issues for retrial.

In Mugge five. Jackson , 39 So. 157, 158 (Fla. 1905), in that location was a retrial after a reversal by the Supreme Court. Over the plaintiff'southward objection, the trial court immune the defendant to introduce an understanding on the facts of the instance that the parties' attorneys had fabricated in the first trial. On appeal, the court rejected the plaintiff's arguments urging this was mistake. 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."⁴³The Offset District recently cited Mugge for that proposition.⁴⁴

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

For example, in Wheeler , the 10th Excursion held the commune court did not abuse its discretion when it declined a party's request to withdraw a formal statement of facts it fabricated and reduced to writing during the first trial, which of course is distinguishable from when a party merely does not competition sure facts. In Wheeler, the party did not dispute the understanding's truth. Instead, information technology complained about the other party's advantageous use of the agreement in the second trial. "Under these circumstances," reasoned the 10th Excursion, "nosotros cannot say that property [the party] to its judicial admissions resulted in manifest injustice."⁴⁶Accordingly, the 10th Circuit held the district courtroom did not corruption its discretion when it denied the party'due south request to withdraw the stipulation.

On remand, a political party should carefully review the original tape and trial transcript, both to run into what it agreed to and what the other party agreed to. Particular attention should be paid to answers to discovery responses (such every bit requests for admissions) and the articulation pretrial stipulation, also as any stipulations on the record.

Using Testimony from the First Trial at the Second Trial
Generally, under F.S. §90.801(ii)(a), a prior inconsistent statement tin can be used every bit substantive evidence, and non just for impeachment, when information technology is "[i]nconsistent with the declarant's testimony and was given nether oath subject to the punishment of perjury at a trial, hearing, or other proceeding or in a deposition."⁴⁷

For apply as nonimpeachment evidence, the Florida Evidence Code allows a party to use the testimony from the first trial as substantive prove in the second. According to Florida State University Law Professor Charles Ehrhardt, testimony from a prior trial tin can be admitted whether the witness is available or not.⁴⁸
Just Ehrhardt also says, "Counsel should exist very cautious in relying on []xc.803(22)."⁴⁹He notes a case from the First District, Grabau v. Department of Health, Board of Psychology, 816 And then. 2d 701, 709 (Fla. 1st DCA 2002), in which the court plant 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 alien with Grabau . So, a party will exist express to using prior testimony as noun evidence merely 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 too holds the trial court should not take admitted certain show because a party did not lay a sufficient predicate, the trial court must give that party a new opportunity in the second trial to practice and so nether the terms of the appellate court'due south opinion.⁵⁰

Attorneys' Fees
When the party who ultimately prevails in the second trial did non cause or contribute to the fault that led to the reversal for the new trial, that political party'south 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 (fifth Cir. 2008), the first trial ended in a mistrial when the jury could non reach a verdict. Later on the plaintiffs' obtained a successful issue in the 2d trial, the district courtroom awarded the plaintiffs attorneys' fees, nether 42 United statesC. 1988, which included some of the piece of work done in the first trial. The 5th Circuit held the district court did non abuse its discretion, considering the plaintiffs did non cause or contribute to the mistrial, and work washed during the first trial contributed to the plaintiffs' success in the second trial.

Simply the successful party should not recover fees for the first trial when that party caused or contributed to the reversal of the effect of the showtime trial. In Daniels 5. Hawkins , No. Civ.A. 96-009 JJF, 2004 WL 1375298 (D. Del. June 15, 2004), the district court declined to honor the plaintiff fees for the first trial, which the appellate court reversed. Although the plaintiff succeeded at the 2d trial, information technology was the plaintiff who offered the bear witness, the admission of which the appellate court found to be reversible error. Similarly, in Shott v. Rush-Presbyterian-St. Luke'southward 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 starting time trial'southward verdict; the court ended the plaintiff should not be awarded fees for the outset trial.

Accordingly, the reasonableness of the prevailing party's recovery of fees for the first trial should accept into account why the first trial was reversed and to what extent the mistake 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 — east.thou ., where both parties contributed to the reversal, or where the blame lies primarily with the trial court — volition depend on a conscientious reading of the appellate court's opinion reversing the first trial.

Some other point virtually attorneys' fees is that a proposal for settlement (PFS) served by a party before the beginning trial is still effective in subsequent proceedings. Thus, in Kaufman v. Smith , 693 Then. 2d 133 (Fla. 4th DCA 1997), the Fourth Commune held the defendant'southward PFS to the plaintiff before the get-go 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 2nd trial triggered the awarding of the PFS statute. It was irrelevant that the defendant had made a 2nd PFS before the retrial which, in light of the second verdict, would not have triggered the statute, because the defendant caused a statutory right to fees and costs later on the plaintiff rejected the outset PFS.

Costs
If a cost judgment was entered in favor of the victor of the starting time trial, information technology must be vacated when the underlying judgment is reversed on appeal.⁵¹Following the second trial, the award of costs for the first trial appears to exist governed by a standard similar to attorneys' fees. This is despite the clear, plain linguistic communication 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. second 678 (Fla. 1st DCA 1977), the showtime trial concluded in a mistrial for the plaintiff's improper conduct of attempting to hash out a witness' testimony with a juror. The trial court denied the accused'due south motion for costs, and the defendant sought certiorari review of that club. The First District denied the defendant'due south 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 non cite it. Instead, it said, "In the outcome of a judgment favoring the plaintiff, nosotros 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 non 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 information technology conflicts with the linguistic communication of the costs statute.

The First Commune, however, did not repudiate the statement in a subsequently case. In Otis Elevator Co. 5. Bryan , 489 So. second 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 courtroom distinguished Richardson as involving a mistrial acquired past the prevailing party. In the example earlier it, the First District held that the ultimately prevailing party should be entitled to recover costs for the first trial, reasoning "in that location was no misconduct, or whatsoever behave for that matter, by the prevailing party which caused the mistrial."⁵⁴

The Second District's stance in Thornburg v. Pursell ( Thornburg 2 ), 476 And so. second 323 (Fla. 2d DCA 1985), appears to nowadays a 3rd 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 stance in the offset appeal did not assign arraign to any party.⁵⁵Post-obit a second, and larger, verdict for the plaintiffs, the trial courtroom denied the plaintiffs costs for the first trial. On entreatment, the 2d Commune held this was error considering the plaintiffs ultimately prevailed in the action.

Involvement
In cases involving damages for a plaintiff'south out-of-pocket, pecuniary losses (similar a breach-of-contract case), the successful plaintiff is entitled as a matter of police force to prejudgment interest from the appointment of the loss.⁵⁶Accordingly, when a judgment in such a instance is reversed and the case remanded for a new trial, the plaintiff is entitled to prejudgment interest from the appointment of the loss if the plaintiff prevails in the retrial.⁵⁷

In personal injury actions or other deportment in which the damages are too speculative to liquidate before final judgment, a successful plaintiff generally is non entitled to prejudgment interest; involvement runs from the date of the judgment.⁵⁸On 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, bold information technology is affirmed on a subsequent appeal. The result is different, notwithstanding, if the remand was for a new trial on liability simply, leaving the verdict undisturbed as to damages, because the damages are liquidated at the fourth dimension 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 information technology very well may lose. Similarly, while the appellant gets the new trial it sought, it also must litigate a 2nd trial. Only the remand only puts the parties dorsum in the position they would have been in had the first trial never occurred. Because it does not restart the instance 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 example set for trial chop-chop. Most of the discovery volition be done. Summary judgments utilizing testimony from the first trial tin narrow the bug, as volition agreements. And the possibility of being hit with attorneys' fees and costs, maybe for both trials, could encourage settlements, fugitive the second trial altogether. In short, reversal and remand for a new trial does not accept the instance back to square one.

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

² See id.

³Fla. R. App. P. 9.330(a).

⁴ See id.

⁵Fla. R. App. P. 9.340(b).

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

⁷ Meet Padovano, Appellate Practice at 20:ten.

⁸ Wilcox, 619 So. second at 446.

⁹ Id.

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

^elevenPadovano, Appellate Practice at 20:11.

¹² Id. at 20:12.

¹³ Run into Spitz 5. 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 unabridged account understanding," because in prior appeal "the cause was remanded to the trial courtroom for determination of whether there was fraud in the making of the understanding to intervene").

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

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

¹⁶Padovano, Appellate Practice at twenty:11.

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

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

^nineteen Fla. Air Conditioners, 390 And then. 2d at 175.

^twenty 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 excursion court, when its judgment in favor of a plaintiff has been reversed, with directions, to accept 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 than clearly develop the real controversy between the parties, so long equally the nature and the theory of the plaintiff's example as presented to the Supreme Courtroom in the first case is not entirely changed or abandoned." (citation omitted)); Hollingsworth v. Arcadia Citrus Growers Donkey'north , 18 So. second 159 (Fla. 1944) (In the first entreatment, the Supreme Courtroom reversed chancery decree that resulted from concluding hearing and remanded to allow plaintiff to brand 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 Courtroom held: "The challenged subpoena to the bill of complaint is not inconsistent with or repugnant to the original bill and the ultimate purpose of the original beak 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 practise.") (citation omitted).

²² Fla. Air Conditioners , 390 And so. second at 176.

²³Padovano, Appellate Practice at 20:eleven.

²⁴Fla. R. Civ. P. 1.430(b).

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

²⁶ See Walling v. Jacksonville Paper Co. , 317 U.Due south. 564, 572 (1943); Pac. Gas & Elec. Co. five. United States , 668 F.3d 1346, 1354 (Fed. Cir. 2012); Hamilton five. 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 engagement for the new trial, but the holding was based on a statute for which at that place is no equivalent in Florida. See Fairmont Ins. Co. five. 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 Accordance Fruge 5. Ulterra Drilling Tech. , 883 F. Supp. 2d 692, 696 (W.D. La. 2012).

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

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

³¹ Id.

³² Id.

³³ Id. at 556.

³⁴ Id. (distinguishing Purex Corp. five. Proctor & Gamble , 664 F.2d 1105 (9th Cir. 1981); Otero five. Mesa Cnty. Valley Sch. Dist. No. 51 , 628 F.2d 1271 (10th Cir. 1980); Blizzard v. Frechette , 601 F.second 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 Encounter Padovano, Appellate Practice at xx:eight.

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

³⁹Emphasis added.

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

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

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

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

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

⁴⁵ Wheeler, 935 F.2nd at 1098.

⁴⁶ Id. at 1099.

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

⁴⁸ Id. at 803.22.

⁴⁹ Id.

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

⁵¹ Thornburg 5. Pursell ( Thornburg II ), 476 So. 2d 323, 324 (Fla. second DCA 1985).

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

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

⁵⁴ Id.

⁵⁵ See Thornburg five. 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 Then. 2d 861, 861 (Fla. 3d DCA 1986).

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

⁵⁹ Griefer v. DiPietro , 708 So. second 666, 672-73 (Fla. fourth DCA 1998).

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

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Source: https://www.floridabar.org/the-florida-bar-journal/reversed-and-remanded-for-a-new-trial-a-guide-to-retrial-in-civil-cases/

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