Due process is one of our greatest challenges under the law. It is a difficult concept for many. Even the most active litigators sometimes forget its primacy and practice. The easiest way to explain it is essentially in two elements: notice and opportunity to be heard. That is, due process is a matter of parties knowing there will be a debate and decision (notice) and the opportunity to tell their individual side of the story (provided they have a real interest, called "standing"). Due process does not assure you a win or a victory, but merely knowing when there will be a game and the chance to play.
One of the critical points for due process is more subtle and detailed. It is beyond that there will be a game, but what the game will be (tennis, golf, baseball, they are different), what the rules of that game will be. It is important for the parties to a case to know that there will be a trial (game), what the trial will be about (subject), and what the rules will be. This affords individuals a chance to contemplate, prepare, and thus a meaningful opportunity to be heard.
In an interesting case years ago this is illustrated and explained. The Florida First District Court reversed a Judge’s award of benefits in a 1985 workers’ compensation case, because those benefits were not “listed as being at issue in the pretrial stipulation.” Commercial Carrier Corp. v. LaPointe, 723 So.2d 912 (Fla. 1st DCA 1999). The Court held "because the claimant did not specifically request this class of benefits, and the matter was not otherwise clearly placed at issue, we reverse the award." Citing, Florida Power Corp. v. Hamilton, 617 So.2d 333 (Fla. 1st DCA 1993).
In LaPoint, the Court further explained “Due process concerns preclude a ruling on matters which have not been placed at issue, since the parties are entitled to notice so that they may fairly present their case." Southeast Recycling v. Cottongim, 639 So.2d 155, 157 (Fla. 1st DCA 1994), Hamilton at 334. This is the foundation of procedural due process, the notice of what will be at issue, and how the parties may participate in airing their positions regarding that or those issues.
Notably, the Court has also held that an issue in a workers' compensation case may be tried "by consent" of the parties even if the issue was not listed in the claimant's original petition for benefits. Dollar Gen. Corp. v. MacDonald, 928 So.2d 464, 466 (Fla. 1st DCA 2006). Trial by consent has bitten many a litigator that was less attentive than they realized. There is the potential for an issue to reach out and bite you when you are focused on other matters.
Litigation, you see, is inherently an occupation of multi-tasking. It reminds me of the entertainment practice of "plate spinning," which was popular both in live venues and in the early days of television variety. A good example from the Ed Sullivan Show is here for those who have forgotten the image. The entertainer starts a plate spinning atop a long dowel rod, and its momentum keeps it upright while the entertainer proceeds to start others. But, each loses momentum and the entertainer must periodically return to each slowing plate and re-accelerate it before it falters or even falls. Many plates must be kept spinning simultaneously. One must work on one, while keeping a wary eye on many. Energy and focus are critical.
In MacDonald, the injured worker suffered two work injuries, in March and August of 2003. The parties went to trial on claims related to March. In the course of the evidence and testimony, there were references to neck symptoms, causation, and the need for treatment. The trial judge awarded her benefits for that neck injury, but the Court reversed. It concluded that the evidence did not support that the injury and need for treatment were related specifically to the March event. It noted that this March event was the only one listed in the pretrial and the one upon which the parties prepared and proceeded to trial. Thus, although evidence was presented regarding the August injury, that was not the injury upon which due process (notice) had been provided.
Despite the parties proceeding with an issue, it may nonetheless be inappropriate to allow it, or to adjudicate it.
Despite the parties proceeding with an issue, it may nonetheless be inappropriate to allow it, or to adjudicate it.
Thus, as a general rule, the issues for trial must be pled by the parties. It may be sufficient, instead, if an issue is thereafter mentioned in a procedural order or notice by the adjudicator (that order thus putting each party on notice). And, even if not specifically so listed, it is possible that an issue may be "tried by the consent of the parties." Herb's Exxon v. Whatmough, 487 So. 2d 1169, 1173 (Fla. 1st DCA 1986). In a subsequent decision, the Court cautioned "This rule presumes, however, that the parties have agreed expressly or by their conduct to litigate an issue not otherwise framed by the pleadings." Lakeside Baptist Church v. Jones, 714 So. 2d 1188, 1190 (Fla. 1st DCA 1998).
Obviously, an express agreement would render such an issue ripe for adjudication. The parties are bound by their stipulations and agreements, as explained by the Court in Citrus World, Inc. v. Mullins, 704 So. 2d 128, 128 (Fla. 1st DCA 1997). Many a lawyer seems to periodically lose sight of that spinning plate. It is not in the situation of an "agreed expressly" that we see allegations of "tried by consent." It is in the situation where an issue is patently and plainly presented, such as the neck complaints in MacDonald, that there are allegations of consent "by their conduct," which present a challenge to the trial judge.
Some would point to MacDonald and argue that if an issue is clearly discussed, the evidence upon it is patently adduced, that the absence of some objection to that testimony is "consent." There is merit in such an argument, that this particular plate required attention and should have received it. The alternative argument is similarly that "this case" involves a population of spinning plates that require attention. Therefore, that one of the parties started some other, potentially distracting plates spinning elsewhere, should not obligate another party to pay attention to them absent some discussion or notice that they were intended to be part of this particular litigation.
There is no bright line test for "trial by consent," or for when or how such consent occurs absent that the parties "agreed expressly." The best advice for parties is to raise an objection. If testimony arises about the August (neck) event, while the case is solely about the March event, one might object to the relevance of such testimony and reiterate that this litigation is only about the March event. Such clarity might well be mentioned likewise in an opening statement (spurred by suspicion or mention of new topics immediately before trial or in discovery) or a closing argument. When it appears something new or unexpected is occurring, when one feels ambushed, it is time to voice the concern (thus putting the other parties on notice of one's differing perceptions of the actual issues).
If the notice was for a volleyball match, when the other side shows up dressed for football, you may be on notice. Or, perhaps they have just chosen wardrobe poorly, are eclectic, or are even just coming from another football game. Perhaps it is best to object at that point. But, when the other side first kicks the volleyball, throws a block, or tackles an opposing team member, it is time to object. There is some miscommunication about the activity and the rules. Get it on the table and begin to sort it out. The longer you play tackle volleyball, the harder it may be to contend that this was not the game that was noticed, expected, or appropriate.
And, some mention of resulting prejudice might strengthen such an argument. That is, what might the "surprised" party have done with proper notice of the dispute that is being interjected. Had the party known of the apparent intent to include the August event (neck) and results, might some other discovery have been conducted, other witnesses called, further examination been arranged, etc.? If there is apparent harm from the inclusion of issues through perceived consent, the aggrieved party would do well to voice that as soon as practical.
From the standpoint of an appellate court, litigators should remember that there is a preference for issues to be addressed by trial courts. Appellate courts are often unwilling to address new issues for the first time. They prefer that, in the spirit of due process, all issues receive an airing in the trial proceeding. Thus, an argument that some decision was made by the trial judge outside the parameters of notice and due process should be raised with the trial judge by rehearing immediately. Failure to do so may inhibit the ability of an appellate court to consider such an issue. The appellate court may conclude rather that this issue was "not preserved." Hamilton v. R.L. Best Int'l, 996 So. 2d 233, 234 (Fla. 1st DCA 2008).
The end result is reasonably clear. Notice is appropriate and crucial. There may be instances in which the parties clearly perceive issues evolving, and they may consent to broaden issues for trial. The best demonstration of that would be an express agreement such as a joint motion to amend a pretrial, or stipulation. It remains possible that the parties' actions may rise to sufficient proof of trial by consent, but hurdles may present. In a world of many spinning plates, surprised counsel is well advised to voice objections to such surprises or even to suggestions that are without the stated issues. Failure to object may leave counsel responsible for yet another population of spinning plates that require attention.
