The First District Court in June 2021 issued R.C. v. Dep't of Agric. & Consumer Servs., Div. of Licensing, 323 So. 3d 275, 301 (Fla. Dist. Ct. App.), cert. denied, 323 So. 3d 366 (Fla. Dist. Ct. App. 2021). It is interesting reading, though it has nothing whatever to do with workers' compensation substantively. It is an en banc decision of the Court, in which there are two concurring decisions, one dissent, and one opinion that "concurs in part and dissents in part."
The case is interesting for its discussion of various legal issues. However, I write of it on two specific points that may be of value to anyone involved in litigation of workers' compensation matters" the "tipsy coachman," and the certification of important questions.
The "tipsy coachman" is not new to these pages. See You can call me Dave (July 2021); The Role of the Tipsy Coachman (October 2017). It is a venerated doctrine of the courts, although the use of the particular label is perhaps more popular in some jurisdictions than others.
The dissent in R.C. references the “tipsy-coachman” doctrine in the context of the sometimes challenging legal construct of "preservation." Appellate courts only review on appeal issues that were "preserved" in the trial proceedings. In short, a litigant that wishes to have an issue addressed by an appellate body is obligated in most instances to raise that issue with the trial judge (through an objection to evidence, a legal argument, etc.). This allows such issues to be fully considered in the context of the trial, and perhaps remedied there without resort to appeal. The dissent in R.C. explains again that the "tipsy coachman" allows the Court "to affirm a trial court judgment that is 'right for the wrong reason.'" But, it explains, "there is no such thing as a tipsy-coachman reversal." That is a conclusion that a trial judge determination was wrong for reasons not preserved. That is an interesting reminder of the importance of preserving error when trying a case.
In addition to its substantive decisions, the Court was also asked to "certify" the questions presented to the Supreme Court. That is one of the paths to further appellate review that is set forth in Article V. of the Florida Constitution. This allows the Supreme Court to review" a "decision of a district court of appeal that passes upon a question certified by it to be of great public importance . . .." This is is, one must remember, a permissive jurisdiction. Such a certification allows ("may") the Supreme Court to review a matter, but does not compel the Court to accept such jurisdiction. That is a critical reminder that Supreme Court review, in most instances, is not mandatory.
In July, 2021, the Court addressed the motion for certification in R.C. The Court denied the request to certify the issues to the Supreme Court, and there are two concurring opinions on that point. Concurring opinions are not of precedential authority, that is they do not control decisions in future cases, but they are very interesting reading. These opinions outline the purpose of a court hearing a case en banc, and clarify the concept of "great public importance." There is insight as to why a case might merit en banc consideration by the court and yet not merit that certification. The explanation is important reading for those who would practice appellate law, or who would try workers' compensation cases and be responsible for establishing the record, preservation, in the trial.
A dissent regarding the denial of certification explains the perspective that the case involves questions of "exceptional importance." It reminds that en banc proceedings are "entirely judge-initiated," and that "parties cannot seek an en banc hearing." It asserts that this process is "reserved for only the most critically important cases," is "infrequent," and "occurs because a case's importance surpasses that of essentially all others on our docket." Thus, it is argued, such cases "present() an issue that is undeniably 'exceptionally important.'"
A second dissent regarding the denial of certification reminds that the "certification" path is only one of the potential foundations for Supreme Court jurisdiction in any particular case. That also is of importance to litigators involved in such appellate disputes. There are sometimes multiple potential foundations for legal arguments, and it is sound to remember that potential.
The concurring opinions explain, however, "it may be appropriate for the Court to take one of the cases en banc to resolve the issue in a way that will maintain uniformity." This notes that "the first and primary purpose of the en banc rule" is "to provide a tool for the courts of appeal to address intradistrict conflicts." There is value in consistency as it allows attorneys to provide sound advice to clients about the probabilities of success in a given situation. Those probabilities and predictabilities allow those clients, the parties, to make sound decisions about their chances of prevailing in litigation and allows them to make reasoned decisions about resolving issues through agreement rather than trial.
A critical point made by the concurrence is that despite there being such a foundation for en banc consideration, the issues in such a case might nonetheless never "approach() the level of great public importance required for the certification of a question." Stated more simply, these are two distinct decisions of the Court: whether the issue(s) should be heard by the entire Court in the interest of uniformity (en banc), and second whether the presented issues are of such magnitude that they merit certification to the Supreme Court. Thus, two decisions that are distinct and separate.
It is important for the practitioner to remember some critical points. First, preservation of error remains a critical responsibility of the parties and therefore their counsel. It must remain a focus of trial counsel, and requires careful and persistent attention throughout the litigation process. Second, it is probable that a party who perceives and has preserved error will have one chance for relief. The review of the District Court is likely to be the final word. While it is possible that some issue may be perceived as sufficient to convince the entire court to review, there is no guarantee of such en banc review. Third, it is possible that an issue(s) may warrant such a review and yet not warrant certification as "great public importance." Finally, the judges' opinions remind that such certification may not be the only basis upon which such Supreme Court review might be sought.
For those who would better understand the trial and appellate process, R.C. is interesting reading. There are both reminders and lessons that are worthy for litigators, including those who focus on workers' compensation.
