A retrial in a civil case is not an everyday occurrence, even for frequent litigants like financial services or insurance companies. This article is meant to guide those who frequently access the court system in navigating through these rarely traveled waters. This article will first consider retrials generally and the principles that guide the trial court’s discretion on remand. Second, it will consider how those principles affect the proceedings on remand.
Generally, the trial court has broad discretion to govern the course of the proceedings on remand. However, that discretion is not unbounded. It is limited by impacting judicial precedent and the law of the case doctrine, the interest in efficiency, and the interest in finality.
The law of the case doctrine dictates that “a trial court is bound to follow prior rulings of the appellate court [in the same case] as long as the facts on which such decision are based continue to be the facts of the case.” Fla. Dep’t of Transp. v. Juliano, 801 So. 2d 101, 106 (Fla. 2001). Although only matters the appellate court actually considered can be foreclosed, the doctrine covers issues that are implicitly or necessarily considered. Plainly put, a trial court has to follow the orders of the appellate court and conduct the trial subject to any limitations imposed by the appellate court.
One application of the law of the case doctrine, known as “the mandate rule,” requires that the trial court comply with the appellate court’s remand instructions. Litman v. Mass. Mut. Life Ins. Co., 825 F.2d 1506, 1511 (11th Cir. 1987). A remand that limits the issues for determination will preclude consideration of other matters. Basic Energy Corp. v. Hamilton Cty., 667 So. 2d 249, 250 (Fla. 1st DCA 1995). However, a remand with general directions for further proceedings vests the trial court with broad discretion to govern the course of the proceedings.
The interests of efficiency and finality also constrict the trial court’s discretion on remand. The parties will have spent much time and expense preparing for the first trial. A complete do-over on remand would be a waste of those resources and would be unfair to the parties.
After a case is returned from an appellate court for retrial, it is appropriate to ask the court for the matter to be set for trial on the issues that were originally tried as soon as practicable. Subject to very, very few exceptions, new claims, defenses or material issues cannot be introduced to the case for consideration in subsequent proceedings. Retrials may be a second bite at the apple, but they are not a mouthful of a fresh orange.
Reopening Discovery on Remand
By the time a case is remanded back to the trial court, it is likely that several years will have passed. During those intervening years, new evidence may emerge. In most all civil cases, there will be several more years of financial records, which may be useful in calculating damages. There may be new scientific information that could make a previously ignored exclusion applicable. One of the parties may even post relevant information on social media. Thus, the reopening of discovery on remand can shed an entirely different light on a case.
Unless the law of the case doctrine dictates otherwise, however, the party seeking discovery is likely to bear the burden of persuading the trial court to reopen discovery. Discovery requests should include an explanation as to how this discovery is necessary and relevant in light of an already closed record and contoured order of a new trial by an appellate court. From our experience, courts are not inclined to open old discovery wounds and treat the new case as an opportunity to fight battles long decided. Though Florida courts enjoy broad discretion, the interests of efficiency and finality both encourage the trial court not to reopen discovery. If courts do restrict discovery, immediate relief is generally not available as certiorari review would only apply to discovery denial that “effectively eviscerates a party’s claim, defense, or counterclaim.” Giacalone v. Helen Ellis Mem’l Hosp. Found., Inc., 8 So. 3d 1232, 1234–35 (Fla. 2d DCA 2009). Eviscerate is a tough standard to argue, so winning discovery related motions at the trial level is crucial.
Nevertheless, good advocacy can lead to the reopening of discovery. It is thus important to know what factors courts may consider, some of which include:
- Whether there has already been adequate opportunity for discovery,
- Whether the trial is imminent,
- Whether the request to reopen discovery is opposed,
- Whether the non-moving party would be prejudiced,
- Whether the moving party was diligent in obtaining discovery for the first trial,
- The likelihood the discovery will lead to relevant information,
- The nature of the information sought,
- The expense involved in producing the information,
- The risk of a new trial if the case is tried without the sought information, and
- Whether circumstances have changed since the prior discovery.
Evidence at the Retrial
“An order directing a new trial has the effect of vacating the proceeding and leaving the case as though no trial had been had.” Ed Ricke & Sons, Inc. v. Green, 609 So. 2d 504, 507 (Fla. 1992). Therefore, unless the party misleads the opposing party to his or her prejudice, the parties may present additional evidence at the retrial. They may also rely on evidence already presented, including transcripts. Relying on past favorable testimony will ensure that the record remains unaltered and well preserved. Naturally, the opposing side will likely be granted full rights to present countervailing testimony, including supplemental testimony from each recorded witness. That means that litigators should be prepared to cross-examine each witness fresh as they were on the first trial.
Introduction of evidence is not just limited to testimony and exhibits, as Florida courts have confirmed that admissions and trial related stipulations are also valid and binding in subsequent proceedings unless they are expressly limited to the first trial or contain any other express limitation. An agreement that the parties made for the first trial, unless expressly limited by its terms, is effective for the second trial. Dortch v. State, 137 So. 3d 1173, 1177 (Fla. 1st DCA 2014). These “agreements” include both admissions and stipulations. Trial lawyers need to ensure that temporal or circumstantial limitation of stipulations or admissions are a regular part of discovery responses or pre-trial stipulations used in trial proceedings.
Frequent litigants like banks and insurers should beware of Fla. Stat. § 90.803(22), regarding former testimony as an exception to the hearsay rule. Though there is some confusing precedent on the issue, the statute creates a hearsay exception for former testimony regardless of the witness’s availability, stating:
“FORMER TESTIMONY.—Former testimony given by the declarant which testimony was given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination; provided, however, the court finds that the testimony is not inadmissible pursuant to s. 90.402 or s. 90.403.”
In Grabau v. Department of Health, Board of Psychology, 816 So. 2d 701, 709 (Fla. 1st DCA 2002), however, the First District Court of Appeal held that the statute is unconstitutional. And because there is no contrary district court decision, Grabau is binding on all Florida trial courts. Therefore, it appears that the current law in the State of Florida is that testimony from the first trial can only be used at the second trial if the witness is unavailable, or if the prior testimony is inconsistent with the witness’s present testimony. Fla. Stat. §§ 90.801(2)(a), 90.804(2)(a). This issue seems very ripe for testing.
When are Attorneys’ Fees Available?
So long as the winner at the first trial did not cause or contribute to the reason for reversal and remand, prevailing party attorney’s fees are available for the first and second trial. In the event that the winner of the first trial caused or contributed to the reversal, prevailing party attorneys’ fees are not available for the first trial. Naturally, any fee dispute after the second trial is decided will need to take into account the findings of the appellate court regarding who caused or contributed to the reversal.
In many cases, statutory proposals for settlement become a driving factor in litigation strategy. Putting these considerations in context, it is helpful to look at the impact of attorneys fee risk as it relates to the insurance industry. Because the terms of the general attorneys’ fees provision of the Florida Insurance Code, Fla. Stat. § 627.428, are an implicit part of every insurance policy issued in Florida, insurers often are required to pay the opposing party’s attorneys’ fees in first party litigation. State Farm Fire & Cas. Co. v. Palma, 629 So. 2d 830, 832 (Fla. 1993). This provision has been described as a “one-way street” whereby insureds may obtain attorneys’ fees if they prevail, but insurers may not. State Farm Mut. Auto. Ins. v. Nichols, 932 So. 2d 1067, 1074 (Fla. 2006). The public policy rationale behind this statute is that insurers should act appropriately, and in conformity to the contract of insurance, and that insureds that are forced to sue their own insurance company should be made whole. The legislature also recognized that solvent insurance companies have “the upper hand,” and laws are needed as a tool for insureds and their attorneys to use to help level the playing field of litigation to put consumers and insurers on equal risk and access to justice footing.
However, an insurer can stop this “one-way street” by offering to settle for an amount greater than or equal to the insured’s damages plus attorneys’ fees, costs, and interest. Id. And if the eventual judgment is at least 25% less than the settlement offer, the insurer can recover its attorneys’ fees from the date of the offer forward under Florida’s offer of judgment statute, Fla. Stat. § 768.79. The interaction between the two rules is best explained with a visual:
A retrial adds a further layer of complexity to this confusing dance, as an offer of judgment made before the first trial is still valid for subsequent trials. Kaufman v. Smith, 693 So. 2d 133, 133–34 (Fla. 4th DCA 1997). Under both statutes cited above, the trial court will only award a reasonable attorneys’ fee. Thus, if the prevailing party’s conduct at the first trial necessitated the second trial, that party may not be awarded all or some fees for the first trial.
For example, in Meeks v. State Farm Mutual Automobile Insurance, 460 F.2d 776, 777–80 (5th Cir. 1972), a second trial was required because of an erroneous instruction that was requested by the plaintiff. After the second trial, the court awarded the plaintiff’s attorneys’ fees for both trials under Fla. Stat. § 627.428. The Fifth Circuit Court of Appeals reversed, reasoning that the trial court should have considered the fact that the plaintiff’s proposed jury instruction caused the mistrial.
In sum, although the trial court has broad discretion to govern the proceedings, there are forces that guide its discretion: the law of the case doctrine; efficiency; finality; and of course, stare decisis. When a case is remanded for retrial, litigants need to ensure that the law is being invoked advantageously. Once a new trial is issued, it can be a clean slate for all parties, and game on. The case may not go back to the beginning, but the trial can be a full do-over unless expressly limited.
 Grabau is binding on all Florida trial courts because “in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.” Pardo v. State, 596 So. 2d 665, 666 (Fla. 1992) (quoting Weiman v. McHaffie, 470 So. 2d 682, 684 (Fla. 1985)).
 In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the Eleventh Circuit adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to October 1, 1981.