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Jean Luc Picard Says Make it So to Effectuate the Mandate

Appeals 101: What is the Mandate?

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Jean Luc Picard Says Make it So and gives the mandate After an appellate Court decides a case, it is still not quite over:  the appeal is only formally concluded once the mandate has issued.  Florida Rule of Appellate Procedure 9.340 requires that the clerk issue the mandate as a ministerial act “after expiration of 15 days from the date of an order or decision.”  The mandate is not issued until after the order is final, and the court won’t enter a mandate while a timely motion for rehearing is pending. Fla. R. App. P. 9.340(b). But what is a mandate, and what should parties do when the mandate has issued?

The Mandate Defined

Florida’s Second District succinctly defined the mandate as “the official mode of communicating the judgment of the appellate court to the lower court, directing the action to be taken or the disposition to be made of the cause by the trial court.”
Tierney v. Tierney, 290 So. 2d 136, 137 (Fla. 2d DCA 1974).  It’s a simple one-page order that tells the trial court, in Star Trek speak, to “Make it so.”  It makes clear that the appellate court has completed its work on the case and now it is up to the trial court to put the appellate court’s ruling into action. And that is all the trial court may do, as the Second District more recently explained: “upon the issuance of our mandate, the trial court is without authority to take any action other than to compose an order carrying out the terms of the mandate. Florida Digestive Health Specialists, LLP v. Colina, 202 So. 3d 94, 96 (Fla. 2d DCA 2016).

What Action Needs to be Taken? It Depends.

Whether the parties need to take an action once the mandate issues depends upon what the appellate court has ruled.  If the appellate court has merely affirmed everything the trial court did — especially if it is a PCA –then there generally is not much more to do to effectuate the appellate court’s ruling on the merits. The judgment is truly final.

But if the Court orders “REVERSED AND REMANDED” then there is usually something the trial court needs to do to effectuate the mandate. It might be just the simple entry of a new judgment reflecting the ruling. It might be a new trial. The parties can’t expect the trial court to just act, though — the parties should seek an appropriate motion or other trial court action to effectuate the mandate. In rare instances, a party may even need to file a motion to enforce the mandate in the appellate court. See, e.g., Whited v. Florida Com’n on Offender Review, 153 So. 3d 324, 329 (Fla. 1st DCA 2014) (granting appellate motion to enforce the mandate and striking trial court’s order that did not effectuate the mandate); Florida Digestive Health Specialists, LLP v. Colina, 202 So. 3d 94, 96 (Fla. 2d DCA 2016) (same).

What Happens Post Judgement Even if Judgment is Affirmed?

The finality of the mandate also give the parties the green light to finalize any fee issues and collect on the judgment. If the appellate court ordered an express or conditional award of attorney’s fees, it will also often order the trial court to determine the amount, and sometimes entitlement, to such fees. If there was a stay pending review, then the parties may need to take steps to end that stay. And the party who attained judgment has the all-clear to enforce that judgment without facing the possibility of having to return the money collected if the judgment is reversed. These collection actions may include proceedings in the trial court to locate assets for payment of a money judgment. In a foreclosure case, if the Bank achieved a foreclosure and that was upheld by the appellate court, the Bank will now take steps to obtain full possession of the property, which may include scheduling a sale if one has not already occurred, or obtaining or enforcing a writ of possession.

Can I keep the judgment from being final by recalling the mandate?

Florida Rule of Appellate Procedure 9.340(a) allows that “The court may direct the clerk to recall the mandate, but not more than 120 days after its issuance.” Many people read this and think they may be able to stop the mandate from issuing and the decision becoming final. But the application of this rule is very narrow, and generally it is only invoked when the Florida Supreme Court or United States Supreme Court has accepted review of a case after a mandate has issued. A party may ask that the mandate be withdrawn pending Supreme Court review. The court can also, in its discretion, recall the mandate if the issue in a case is being considered by a higher court in another case. Mitchell v. State, 160 So. 3d 902, 904 (Fla. 2d DCA 2009).

About Appeals 101

This post is part of our continuing Appeals 101 series. Click the link to find all of our posts on the basics of litigating an appeal.

Appeals 101:  When Can you Seek Rehearing in a State Court Appeal?

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Needle in a Haystack

Determining whether there is an issue that warrants rehearing when you aren’t the lawyer who wrote the appeal briefs is like looking for a needle in a haystack.

We often get calls from litigants who have just found out they’ve lost their appeal and want to seek rehearing from the appellate court. Either they handled their appeal on their own, pro se (which we never recommend, but if you plan to do so, the Florida Bar Appellate Section has some great resources here), or else they utilized counsel but now that they’ve lost, they would like a second opinion.

And our answer is the same:  without even looking at your case, I can tell you that the chance of a motion for rehearing being granted is very low, and the likely result of my analysis of your case will be that you do not have a basis for rehearing.  How can I say that without even looking at your case, you ask? Well, it comes down to the rules.  Florida Rule of Appellate Procedure 9.330 governs appellate rehearing, and sets very strict rules about when you can even bring a rehearing motion. The rules even require any lawyer filing such a motion to swear on their bar license that the motion is justified.  So while we are happy to take on a “peace of mind” review of your case to determine whether rehearing is even available, you have to understand that it rarely is.

You have to act quickly

. A motion for rehearing may be filed within 15 days of the District Court’s decision.  Fla. R. App. P. 9.330(a).  Fifteen days is not a lot of time to analyze the entire case file (opinion, all three briefs, and record) and determine whether there are grounds for rehearing, so if your goal is to hire a new lawyer to take a look at the issues, you have to move quickly.  I recommend hiring someone certainly within a week of the decision, if not sooner, so that person has the chance.  Anyone who says they can do a motion for rehearing without thoroughly analyzing all of the prior briefing does not understand motions for rehearing.

You have to meet a high standard

  There are two flavors of Rule 9.330 motion:  Rehearing and Clarification.  As the rule states, a motion for rehearing “shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.”  So basically, you have to walk a tightrope:  You can’t raise a new issue, but you also can’t just reargue what you said before.  Instead, you have to really find a place where the appellate court in its review truly overlooked or misunderstood something.  If you do just re-argue what you said before, you can be sanctioned.  As one court has explained, a motion for rehearing is not “a last resort to persuade th[e] court to change its mind, or to express …displeasure with th[e] court’s conclusion.”  Lawyers Title Ins Group v. Reitzes, 631 So.2d 1100, 1101 (Fla. 4th DCA 1993) (issuing order to show cause why lawyer should not be sanctioned for merely re-arguing the same things in a motion for rehearing).  Such motions should very rarely be filed.

Similarly, a motion for clarification “shall state with particularity the points of law or fact in the court’s decision that, in the opinion of the movant, are in need of clarification”. Fla. R. App. P. 9.330.  But clarification is only useful if something is unclear or confusing in the written opinion, which is rare.  I’ve filed exactly one motion for clarification in my career, and it was, in fact, granted.  I have never been more proud to have 2 words deleted from an opinion that I still lost.  But that just goes to show how rarely these motions should be filed and how even rarer it is to grant them.

In my entire career, I’ve filed only a handful of rehearing motions, and only a few of those were granted. That I’ve had any granted is a great track record, but all it shows is that I don’t file motions for rehearing that break the rule and re-argue what was said before or raise entirely new issues.

Should you bother with a Motion for Rehearing?

  Rehearing is rarely appropriate to request, and even more rarely granted.  It is perfectly reasonable to get an unfavorable decision from the District Court of Appeal, and decide there is nothing more to be done, without further analysis: the odds are stacked against you.  When we represent a client throughout the appeal, we include in our services an analysis of rehearing issues, and make a recommendation as to whether rehearing is appropriate (spoiler alert: the answer is usually no).  When we were not the appellate counsel all along, it’s much harder: to decide whether rehearing is appropriate, one has to read not just the opinion, but the briefs showing what was argued, the cases cited in the briefs, and even the record to understand what happened in the trial court.  That takes time!  We are always happy to analyze a file and look for the tiny nugget of gold that would allow us to file a supported motion for rehearing—for us it’s a fun challenge.  But we charge a fee to do so, because to do it right generally takes several hours of time. And we want to be very upfront that the process is like looking for a needle in a haystack, and the answer will more likely than not be “sorry, we don’t advise seeking rehearing.”

Still not deterred?  If you have gotten a decision from the appellate court and want to hire us to determine whether rehearing is appropriate, feel free to schedule an intake consult.  Be sure to give us your case number and full contact information so we can run a conflicts check.

Photo courtesy of Flickr User Michael Gil Used under a CC 2.0 license