Florida Supreme Court Announces New Test for Harmless Error in Civil Cases

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One of the most important tasks in evaluating an appeal is determining not just whether the trial court committed legal error, but also determining whether that error is harmful enough to warrant reversal. And one of the more frustrating parts of that analysis — particularly where the evidence statute is at play — has been determining how the legal rules for evaluating whether error is harmful set out in criminal cases apply to civil appeals. The Florida Supreme Court last month helped civil practitioners along in this task by expressly defining the harmless error test in civil appeals, and holding that it is exactly the same as in criminal appeals. The case came to the court in the context of a certified question from the Fourth District Court of Appeal, asking:

IN A CIVIL APPEAL, SHALL ERROR BE HELD HARMLESS WHERE IT IS MORE LIKELY THAN NOT THAT THE ERROR DID NOT CONTRIBUTE TO THE JUDGMENT?

Special v. West Boca Med. Ctr., No. SC11–2511, 39 Fla. L. Weekly S676, 2014 WL 5856384 at *1 (Fla. Nov. 13, 2014) [.pdf]. The court answered NO to this question, and instead held civil appeals to the same (and more difficult) standard found in crimnal appeals. The court first discussed in-depth its leading criminal case on the issue, State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986). It then announced the following rule:

To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.

Id. at * 3 (italics added). Applying this test, the court explained that the appellate court analyzing the alleged error must focus on the effect on the trier-of-fact, not merely the result. Id.. Specifically:

As the appellate court evaluates whether the beneficiary of the error has satisfied its burden, the court’s obligation is to focus on the effect of the error on the trier-of-fact and avoid engaging in an analysis that looks only to the result in order to determine harmless error. Could the admission of evidence that should have been excluded have contributed to the verdict? Could the exclusion of evidence that should have been admitted have contributed to the verdict? Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful.

Id. at *4. The Court explained that this “no reasonable possibility test” properly places the burden on the party who invited the error, and “will foster consistency in appellate courts’ analyses of harmless error.”

The Dissenters: Too Far, or Not Enough?

The announced rule garnered the support of only 4 out of the Court’s 7 Justices, however. Justice Pariente wrote a detailed dissent setting out her alternative proposed test but finding reversible error even under her proposed less-strict test. Justices Polston and Canaday sided with Justice Pariente on the proper test, but in their view the trial court did not commit reversible error under the proper test. Justice Lewis also dissented in part, but only because he would have gone further in finding error.

Justice Pariente’s Dissent in Part: “More Likely Than Not” Test

Justice Pariente dissented in part, focussing on the difference between criminal and civil cases. Her dissent explained:

I dissent, however, from the majority’s decision to adopt the same harmless error standard for civil cases as is used in criminal cases, despite the different burdens of proof and constitutional interests that are implicated in the civil and criminal contexts.

Id. at *13 (Pariente, J. dissenting). Justice Pariente would have made the test ““more likely than not” rather than “no reasonable possibility.” She explained:

[B]ecause of the differing burdens of proof and constitutional rights at stake, I disagree with the majority’s adoption of the identical standard for harmless error in civil cases as applies in criminal cases. By adopting the test for harmless error that applies to criminal cases without even referencing the different burdens and interests that apply in the civil context, the majority favors form over substance and offers no compelling explanation as to why the “no reasonable possibility” language from DiGuilio, which is rooted in the “beyond a reasonable doubt” burden of proof, should be used in civil cases. As stated by the Fourth District, the harmless error test for civil cases “should acknowledge the particular attributes of those cases.

Id. at *14 (Pariente, J. dissenting).

Justices Polston’s Dissent: Wrong Test, Wrong Result

Justice Polston, joined by Justice Canaday, agreed with Justice Pariente and took her anlysis one step further: Not only should the “more likely than not” standard apply in civil cases because of the different burdens of proof, but applying that test to the facts of this case, they would have found any error harmless.

Justice Lewis: “Our Courts Will Not Review Allegations of Error Lightly”

Justice Lewis, on the other hand, agrees with the test adopted by the Court. His quibble was mostly with the nuts and bolts of the tests’ application in this case, and not the adoption of the “no reasonable possibility” test. Indeed, the concurrence portion of his opinion explains that:

Equity and logic demand that the burden of proving an error to be harmless must be placed on the party who improperly introduced the evidence. Placing the burden on the party that introduced the error serves not only to penalize the offending party, but also discourages future efforts to introduce error into proceedings…. [B]y applying the DiGuilio test in the civil context, we signal to litigating parties that our courts will not review allegations of error lightly, nor perpetuate such errors by affording them less scrutiny than the “reasonable possibility of affecting the verdict” standard provides.

Id. at *21. Justice Lewis also pointed out that the statutory test for harmless error, as set out in § 59.041, Fla. Stat., is identical for both civil and criminal cases, so the courts’ application of the test should be identical as well.

My Take

It will be interesting to see how this decision ripples through the courts of appeal. It likely should result in more reversals, but I will be curious to see, statistically, whether it actually does. I suspect an uptick in PCA’s instead.

I note that a motion for rehearing has been filed in this case, so the decision is not yet final. I’ll update here when it is finalized.

Crisis Averted in Eleventh Circuit

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The Eleventh Circuit is no longer in a state of emergency. At the end of last year, the Chief Judge had issued General Order 41 [.pdf], which allowed appeals to be heard by panels that did not include at least 2 11th Circuit judges. On Friday, the Court rescinded that emergency via General Order 42 [.pdf]. Panels that have already heard argument or had non-argument cases submitted prior to the issuance of Order 42 will consider the appeals as submitted, but all future panels will go back to having at least 2 11th Circuit Judges on them.

Magistrates, Reconsideration, and Writs, Oh My!

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Every once in a while a case comes along that is just a treasure trove of procedural goodness. It’s even nicer when you happen to know the prevailing party, and know the rules as applied helped the good guys. The case is Seigler v. Bell, Case No. 5D14-642 (Fla. 5th DCA Sept. 19, 2014)[.pdf]. The underlying dispute is a complicated child custody battle between a Mother and Grandmother. While there is no need to go into the nitty gritty of the underlying facts of the dispute, the decision today provides great insight into several issues of broad application: (a) The role of magistrates in proceedings before a trial court, (b) the important differences between rehearing and reconsideration at the trial court level, and (c) jurisdiction over writs of certiorari and mandamus. Let’s unpack each in turn.

Magistrates and Finality

The opinion lays out in detail the legal and procedural effect of an issue being heard by a magistrate. Most importantly:

While a magistrate’s report is more than a mere recommendation, it is not a final judgment, as magistrates lack the authority to enter final judgments….Even when no exceptions are filed, the trial court is “duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether[,] under the law and facts[,] the court is justified in entering the judgment recommended” by the magistrate…. Merely “approving” the magistrate’s report is not sufficient to effect an appealable final judgment.

Slip. Op. at 7-8, citations omitted. In this case, both parties did file exceptions, and the trial court ruled on them, but the effect of that ruling was not a final judgment. The trial court rejected one party’s exceptions and accepted some of the other party’s exceptions, but the resulting order on the recommendation merely stated “the Report … is hereby modified….” Because the trial court “modified” the magistrate’s report but did not enter judgment, the order modifying the report (“the Modification Order”) was not a final order.

Rehearing v. Reconsideration

Whether the Modification Order was a final order is important in this case, because it is determinative of the next issue the appellate court decided — whether the Grandmother’s “Motion for Rehearing or Reconsideration” (the “Reconsideration Motion”) was timely and authorized. The Mother’s Petition sought review of the trial court’s order granting the Motion for Rehearing or Reconsideration. The Reconsideration Motion was filed 12 days after the trial court entered its order modifying the magistrate’s report and recommendation. If the Modification Order had been a final judgment, then it would be subject to a Rule 1.530 motion for rehearing. But then the Reconsideration Order would have been untimely, because at the time Rule 1.530 required that a motion for rehearing be served no later than 10 days after entry of judgment. (The rule was since amended to allow 15 days for service of a motion for rehearing).

The Court held that since the Modification Order was not a final order, the trial court had the inherent power to reconsider its interlocutory order at any time. Op. at 9. The court explained:

Motions for rehearing and motions for reconsideration are two distinct motions and, though they are often confused, they do not overlap. Motions for “rehearing” pursuant to Florida Rule of Civil Procedure 1.530 apply only to final judgments and “those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.” Motions for “reconsideration” apply to nonfinal, interlocutory orders, and are based on a trial court’s “inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action . . . .” … Nomenclature does not control, and motions for either “rehearing” or “reconsideration” aimed at final judgments shall be treated as rule 1.530 motions for rehearing, while motions aimed at nonfinal orders shall
be treated as motions for reconsideration.

Op. at 9-10, citations omitted. The Court also emphasized that the trial court had the power to sua sponte reconsider its own interlocutory orders. Op. at 10.

Certiorari, Mandamus, and Appealable Non-Final Orders

Because the Court had the power to reconsider its interlocutory order, the next question it considered was whether the order granting reconsideration in the Grandmother’s favor (“the Reconsideration Order”) was an appealable order. The Court didn’t even look at whether the Reconsideration Order was a final order, because it left open further proceedings and still did not take on the tenor of a judgment of the Court.

The Court considered but rejected the argument that the Reconsideration Order could be classified as an appealable nonfinal order under Rule 9.130(a)(3)(C)(iii), which allows for immediate appeal of orders determining the right to child custody in family law matters. It is not clear whether the Mother made this argument, but the Court did the right thing in considering it in any event, because Rule 9.040(c) allows that “if a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought.” Fla. R. App. P. 9.040(c). However, the Court concluded that the order does not determine the right to custody, but “merely indicates that more evidence will be considered before the trial court determines Mother’s motion to revoke the prior temporary custody order.” Op. at 10. It’s a decision to take more evidence, not a determination of custody, and therefore not an appealable interlocutory order.

The court also considered whether the Mother’s Petition entitled her to the relief requested, certiorari or mandamus relief. Both certioari and mandamus are extraordinary appellate remedies, because they allow the appellate court to step in and rule on the propriety of an interlocutory order. The Court dismissed the Petition for Writ of Certiorari for lack of jurisdiction and denied the Petition for Writ of Mandamus.

The Mother argued in favor of certiorari review because, based on her view that the Rehearing Motion was untimely, the trial court was without jurisdiction to entertain it. The Court set out the standard test for certiorari relief:

“To obtain relief by way of a writ of certiorari, a petitioner must establish: 1) a departure from the essential requirements of the law, 2) a resulting material injury for the remainder of the trial, and 3) the lack of an adequate remedy on appeal.”… The second and third prongs of this three-part standard of review are often combined into the concept of “irreparable harm,” and they are jurisdictional.

Applying this test — and its prior procedural analysis that the trial court had the power to reconsider the Modification Order and enter the Reconsideration Order — the Court found that the Reconsideration Order neither departed from the essential requirements of law or caused irreparable harm. The Court therefore held that it lacked jurisdiction to grant the requested certiorari relief.

The request for mandamus relief likely asked the Court to order the trial court to enter final judgment on the Modification Order. As the Court explained:

“Mandamus is a common law remedy used to enforce an established legal right by compelling a person in an official capacity to perform an indisputable ministerial duty required by law.” … “To state a cause of action for mandamus, a party must allege a clear legal right to performance of the act requested, an indisputable legal duty, and the lack of an adequate remedy at law.”

Op. at 11 (citations omitted). In this case, because the trial court had the power to reconsider its own interlocutory order, the Mother could not prove she was entitled to compel the trial court to enforce an established legal right to entry of judgment in her favor. The Court therefore denied the petition for writ of mandamus.

Kudos

Congratulations again to my friend Vicki Levin Eskin of Levy & Associates, P.A. for her appellate win! Vicki represents the Grandmother in this case pro bono, to boot (that means free, folks).

Full Disclosure: I assisted Vicki pro bono in responding to the appellate motion for rehearing or rehearing en banc filed by the other side. I am pleased to report that the court denied rehearing today, so the decision is now final.