Enforcing the Mandate when the Trial Court Deviates or Delays

Enforcing the Mandate when the Trial Court Deviates or DelaysHow do you enforce an appellate court’s mandate when the trial court fails to comply?

Pursuant to Florida Rule of Appellate Procedure 9.340, the mandate, which closes an appeal, is generally issued 15 days after the cause has been fully determined. When the appellate court issues a mandate, it ends the appeal and relinquishes jurisdiction to the trial court. E.g., State v. Miyasoto, 805 So. 2d 818, 824 (Fla. 2d DCA 2001).

The trial court lacks discretion to deviate from the mandate because compliance with the mandate “is a purely ministerial act.” If a trial court fails to comply with the mandate, the proper avenue is to file a motion to enforce the mandate in the appellate court.  See, e.g., Fla. Peninsula Ins. Co. v. Cespedes, No. 2D12-4575 (Fla. 2d DCA Oct. 14, 2016) (granting motion to enforce mandate where trial court allowed litigation to continue after appellate court reversed partial summary judgment of liability in insurance coverage dispute and directed trial court to enter judgment for insurer).

Consequences of Failing to Comply

In some cases, the consequences of failing to comply with the mandate may be severe. The Second DCA decision in Florida Digestive Health Specialists v. Colina, No. 2D14-4561 (Fla. 2d DCA Sept. 7, 2016) is an example. There, the appellate court issued an opinion on an order granting a medical practice’s request for temporary injunction against its former employee, a physician. The opinion included remand instructions that the trial court was required to grant the injunction prohibiting the physician from violating the noncompete; the mandate issued in December 2015.

In January 2016, the trial court entered an order that “only minimally complied with” the mandate; it did not include a provision prohibiting the physician from continuing to work for his new employer in apparent violation of the noncompete. The former employer moved to enforce the mandate in the trial court, which entered an order in May 2016 that neither granted nor denied the motion and found the issue moot because, by that time, the two year contractual noncompete period had expired. The former employer simultaneously appealed the May 2016 order and filed a motion to enforce the mandate in the appellate court. Noting that the trial court’s action “effectively denied [the former employer’s] motion for temporary injunction—a direction contravention of our mandate”, the Court granted the motion to enforce the mandate and instructed the trial court to enter an order granting the injunction “to commence on the date the order is entered on remand.”

The impact of this is obvious—by the time the appellate court’s order enforcing the mandate issued in September 2016, almost three years had passed since the physician terminated his employment relationship with the former employer in November 2013. See Fla. Digestive Health Spec., LLP v. Colina, 192 So. 3d 491, 493 (Fla. 2d DCA 2015). Yet, because of the trial court’s deviation from, and delay in, enforcing the terms of the mandate, the injunction will extend through 2018—five years after the employment relationship terminated.

In most cases, compliance with the mandate is non-controversial, but in cases involving ongoing performance obligations, it is wise to assess carefully what the appellate court has ordered and ensure that subsequent orders are compliant with those instructions.

Where to file the Motion to Enforce

As Colina illustrates, the unintended consequences of failing to do so can be extreme.  Colina demonstrates another point, reinforced by Cespedes: in the unlikely event it is necessary to move to enforce the mandate, the motion should be filed in the appellate court (not the trial court) immediately. As both opinions make clear, appellate courts have “inherent power” to enforce the mandate and trial courts lack authority to review or deviate from the mandate without permission from the appellate court.

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