Supreme Court Again Amends Preservation Requirements of Rehearing Rule

/0 Comments/in , , , , /by

The Florida Supreme Court has once again amended the language of Florida Rule of Civil Procedure 1.530 and Florida Family Law Rules of Procedure 12.530 — this time, to state that “to preserve for appeal a challenge to the failure of the trial court to make required findings of fact, a party must raise that issue in a motion for rehearing under this rule.” See In re Amendments to Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.630, No. SC2022-0756 (April 27, 2023) [.pdf] (bolding indicates new language).

This language regarding “required findings of fact” replaces language stating that the motion is required “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment.” (emphasis added). The Court explains that “This change makes both rules applicable to all orders, not just final judgments, and makes clear that the rules apply only when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court’s order.” Id. at 2.

The statement that it makes the rules “applicable to all orders” is somewhat unfortunate wording, in that it could be read to infer that a 1.530 motion is requried after every order if findings of fact are at issue. But a Rule 1.530 or 12.530 motion is still a motion directed only to jury verdicts and judgments, according to the unchanged portion of the rule. This means that if there is an interlocutory order that is missing findings of fact, even if you raise the issue in an interlocutory motion for reconsideration, that may not be sufficient to preserve the issue for appeal. Rather, the rule should be read to mean that a post-verdict or post-judgment motion for Rehearing must address insufficient findings of fact, whether those findings are found in the final judgment itself or in an interlocutlory order, in order to preserve the issue for appeal.

This unfortunate wording also opens the door for possible waiver of the right to appeal altogether. What if the order that does not have a proper finding of fact is non-final but still directly appealable pursuant to Rule 9.130? This change and the Supreme Court’s implementing “all orders” language could be read to state that you must file a motion for rehearing in order to preserve a challenge to the findings in that non-final order. Yet, a Rule 1.530/12.530 only acts to toll the time for appeal if it is “authorized and timely.” And there is a plethora of case law that states that a motion for reconsideration directed at a non-final order does not toll the time for appeal. For example, as the Fifth District has explained:

A motion for reconsideration does not toll the time to file an appeal from a non-final order. See Caufield v. Cantele, 837 So.2d 371, 376, n. 3 (Fla. 2002). The reason, of course, is that motions addressed to non-final orders are not “authorized” within the meaning of Rule 9.020(h), Florida Rules of Appellate Procedure, and thus do not postpone rendition.

Agere Sys. Inc. v. All Am. Crating, Inc., 931 So. 2d 244, 244 (Fla. 5th DCA 2006).

Given the mixed messages here, I recommend two courses of action:

(1) Make sure any post-judgment or post-verdict motion for rehearing addresses all required factual findings you may want to challenge on appeal, not just those missing from a final order or judgment.
(2) If the order you wish to appeal is an appealable non-final order — which is fairly common in post-dissolution family court cases, in particular — you should both file a motion for rehearing within 15 days of the entry of the to-be-challenged order, and file a timely notice of appeal within 30 days of entry of the order. Do not assume that the motion for rehearing will toll the time for appeal. You can then ask the appellate court to relinquish jurisdiction to the trial court to rule on the rehearing motion. This will ensure that you don’t lose jurisdiction for the appeal while awaiting the trial court’s reconsideration decision.

By focusing on the failure to make findings rather than the sufficiency of the findings, a fair reading of the change in language is that it actually narrows the rehearing requirements to situations where a court has made no findings at all. Still, with preservation at stake, until the contours of the new rule are expounded by appellate court decisions, it is best practice to bring any issues with the sufficiency of findings in a ruling to the trial court’s attention on reconsideration or rehearing. And because those motions need to be brought quickly, we recommend contacting appellate counsel as soon as you know you have an order you may want to appeal. To contact us, just call 813-778-5161 or use this form to request a consultation.

Rule Change: Rehearing Required to Preserve Challenge to Sufficiency of Trial Court Findings

/0 Comments/in , , , , , , /by

Seal of the Florida Supreme CourtThe Florida Supreme Court Friday amended Florida Rule of Civil Procedure 1.530 and Florida Family Law Rules of Civil Procedure 12.530 to expressly require that “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule,” effective immediately upon the issuance of the order on August 25, 2022. See In Re: Amendments to Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530 (Aug. 25, 2022) [official court link]. [Author’s note: There have since been further amendments — check out our follow-up here]. While this is a change to the civil rules, it has a direct and real effect on whether a successful appeal is possible, so it is important for anyone who is considering an appeal to think carefully and act quickly to ensure this appellate issue is preserved by filing a motion for rehearing pursuant to Rule 1.530 or 12.530 within 15 days of rendition of a final judgment. And this means that if you have any interest in appeal, it is urgent that you speak with an appellate lawyer well before that 15 day deadline to ensure that you don’t inadvertently waive the issue on appeal.

The Supreme Court was no doubt intending to resolve a split among the District Courts of Appeal regarding whether a motion for rehearing is required in such circumstances. In 2019, the Second District Court of Appeal in Engle v. Engle, 277 So.3d 697 (Fla. 2d DCA 2019) [official court link] held that such a motion for rehearing was not required to preserve an appellate challenge to the adequacy of statutorily required findings of fact, and thus the failure to comply with a statute’s requirement of factual findings “is reversible error regardless of whether a motion for rehearing is filed.” Id. at 699, citing Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018) (en banc) [official court link]. In Engle, which was a family law case and thus applied Rule 12.530, the court stated that while it would be preferable to allow the trial court the option to fix its mistake prior to appeal, “if a litigant fails to do so for whatever reason, he or she should not be foreclosed from having the error corrected.” The Second District explained that, especially in family law proceedings, “to impose such a procedural constraint on a family law litigant elevates judicial convenience over equity.” Id. at 703. The court described the rehearing motion requirement as a “judicially created…trap” for family law litigants, partiuclarly those acting pro se, and instead placed the burden squarely on trial courts to follow the law in the first instance or be subjected to reversal.

Indeed, both the Second in Engle and the Fourth District in Fox urged the Famly Law Rules Committee to review and address this issue to make this clearer.

The Florida Supreme Court’s amendment is made “on its own motion” and does not come directly from a Family Law Rules Committee proposal. The Court will be accepting comments on the rule through November 8, 2022. So be on the lookout for a potential further change to the process. But for now, make sure you are on top of these important preservation issues.

Here’s the Full Text of the Changes, with additions indicated by underlining:
RULE 1.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS
(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues.
To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.

On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.
(b) – (g) [NO CHANGE]
Committee Notes
[NO CHANGE]
Court Commentary
1984 Amendment. [NO CHANGE]
2022 Amendments.
The amendment to subdivision (a) does not address or affect, by negative implication, any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review

FLORIDA FAMILY LAW RULES OF PROCEDURE
RULE 12.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS
(a) Jury and Non-Jury Actions. A new trial or rehearing may be granted to all or any of the parties and on all or a part of the issues.
To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.

On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.
(b) – (h) [NO CHANGE]

Court Commentary
2022 Amendments. The amendment to subdivision (a) does not address or affect, by negative implication, any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review.

Please note: There have been further amendments since we posted this. Be sure to check out our latest post on the amendments to Rule 1.530 and 12.530 here.

You Used Daubert at Trial but Now it’s Frye? Here’s What the Appellate Court Might Do. (UPDATED–IT’S DAUBERT AGAIN!)

/0 Comments/in , , , , , , , , /by

***AUTHOR’S NOTE:  We published this article on May 20, 2019.  On May 23, 2019, the Florida Supreme Court did a completely unexpected about-face and adopted Daubert, receding from its prior opinions rejecting Daubert and rejecting the legislature’s amendment of section 90.702.  You can read the full opinion here: https://www.floridasupremecourt.org/content/download/525509/5838164/file/sc19-107.pdf

We’ll follow up with an updated post once we see how the districts change their response to pending appeals on this issue.  In the meantime, the below information will still be helpful for understanding where this all came from, and to make an educated guess as to where your case will end up.  For now, if you’re in the trial court, use Daubert again (sheesh)!

Jared

__________________________________________________________________

 

So you and your trial court relied on the current version of section 90.702, Florida Statutes, and applied the Daubert test to determine the admissibility of a new or novel expert opinion. But now that your case is on appeal, the Florida Supreme Court has said that Daubert never applied and the Frye test applies in Florida. What will happen to your case on appeal? Two decisions from two Florida districts give us some hints.

The Florida Supreme Court building

The supeme court’s recent reaffirmance of Frye is requiring districts to develop methods for handling cases founded on Daubert.

A brief history of the Daubert/Frye issue in Florida

First, some brief background (which you probably already know). Frye v. United States, 298 F. 1013 (D.C. Cir. 1923) has long provided the test for admissibility of expert opinion in Florida and federal courts. In Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993), the United States Supreme Court held that a new test would apply for federal courts. But Florida courts stuck with Frye.

In 2013, the Florida Legislature amended section 90.702, Florida Statutes, to incorporate Daubert. But the Florida Supreme Court remained silent on the amendment for years and, in Florida, only the judiciary can formally adopt procedural rules. So Florida trial and appellate practitioners alike were left uncertain–should we use Daubert or Frye?

The intermediate appellate courts too were left without much guidance. The Fourth District held that it would apply the new statute–Daubert–because “statutes are presumed to be constitutional and are to be given effect until declared otherwise.” Crane Co. v. DeLisle, 206 So. 3d 94, 100 n. 7 (Fla. 4th DCA 2016)[.pdf]. Most of the Fourth DCA’s sister districts also applied Daubert. See id. (listing cases from the First, Second, and Third Districts).

Well, in 2018, the Florida Supreme Court reviewed the Fourth District’s opinion and declared the statutory revision to section 90.702 unconstitutional, thereby reaffirming that Frye is the test to apply in Florida. Delisle v. Crane Co., 258 So. 3d 1219, 1229 (Fla. 2018)[.pdf].

What happens to all the pipeline cases on appeal? It depends.

What happens to all the appeals from judgments pre-dating DeLisle, where the trial courts appropriately relied on the statute and the intermediate appellate decisions and applied Daubert?

Shortly after the supreme court issued its Delisle decision, the First District confronted this situation in D.R. Horton, Inc. – Jacksonville v. Heron’s Landing Condo. Ass’n of Jacksonville, Inc., 44 Fla. L. Weekly D109, 2018 WL 6803698 (Fla. 1st DCA Dec. 27, 2018)[.pdf]. Importantly, in Delisle, the supreme court had also reaffirmed that a Frye analysis is only required “when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” Id. at *4. By contrast, in D.R. Horton, “the trial court, albeit in the context of its Daubert analysis, found that Appellee’s experts used a scientifically reliable and peer-reviewed methodology that was the industry standard.” Id. at *4. In other words, there were no new or novel scientific techniques at play. Consequently, the First District held there was no need to remand for a Frye analysis–there was no legal basis for the appellate court to hold that admitting that expert’s opinion was invalid.

More recently, in Kemp v. State, 4D15-3472, 2019 WL 2083045 (Fla. 4th DCA May 8, 2019)[.pdf], on rehearing, the Fourth District held that use of the Daubert standard required remand for a Frye hearing. There, the State sought to introduce an expert that asserted he could determine whether a car was braking at the time of an accident based on the location and “arc[ing]” character of damage on the cars involved.

The trial court never considered whether this was “new or novel” under the Frye test because Daubert applied at that time. However, because the appeal was in “the pipeline” when DeLisle issued, the Fourth District was to apply Frye–if Frye applied at all to the facts of the case before it.

The Fourth District recognized that Frye would only apply if the scientific principles were new or novel, but unlike in D.R. Horton, the appellate court could not tell from the record. Hence, it remanded for the trial court to determine the matter. The court also ruled that, even if the trial court found the matter was “pure opinion” testimony and Frye did not apply, the trial court should still determine “whether the expert had training and experience in the specific method he used to reach his conclusions.” The court ruled that if the State failed its burden to prove the admissibility of the expert’s opinions, the court should grant a new trial for the defendant. If the State prevailed on proving the opinions admissible, the court should reinstate the defendant’s convictions and sentences.

The legal battleground for appeal will be whether or not the type of expert opinion provided is subject to Frye.

What we can gather from these opinions is that a case impacted by an expert opinion admitted under the Daubert standard will probably be reversed for further proceedings to determine admissibility under Frye, unless the opinion is of a type not subject to a Frye standard or the record already reveals the answer under Frye.

Thus, the argument for an appellee seeking to uphold a judgment based in part on testimony admitted under Daubert is that either the scientific principles upon which the expert’s opinion was based were not new or novel, or that the trial court made sufficient findings to demonstrate the Frye test was satisfied (even if not explicitly referenced). Both of these arguments are effectively identical to a harmless error analysis–even though the trial court applied Daubert, the application of that test had no impact on the outcome of the case.

Meanwhile, an appellant seeking reversal should argue that the expert’s opinion is based on new or novel scientific principles–so Frye applies–and the record does not demonstrate that the expert’s opinion satisfies the Frye test. And, as in most appeals of both civil and criminal appeals, the appellant should argue that it is the appellee’s burden to prove the error did not have an effect on the verdict (read more about this here).