In Bates v. Bates, 3D19-1884 (Fla. Dist. Ct. App. 3d Dist. August 31, 2022), a family law matter, a husband appealed the trial court’s non-final order invalidating the parties’ prenuptial agreement in part. A panel of the Florida Third District Court of Appeal affirmed the trial court’s order. The husband then brought a motion for a rehearing en banc.

Upon en banc consideration of the request to reconsider the case en banc, the Florida Third District Court of Appeal was evenly divided concerning whether to grant the motion for rehearing en banc: 5 judges held that en banc reconsideration should be granted and 5 judges held that en banc reconsideration should be denied. 

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Decision

Although the court was evenly divided as to whether en banc reconsideration should be granted, the Court, per curiam, denied the motion for rehearing en banc. The Court noted that Fla. R. App. P. 9.331(a) states that the en banc decision shall be by a majority of the active judges actually participating and voting on the case. In the event of a tie vote, the panel decision of the district court of appeal shall stand as the decision of the court.

Each half of the Third District Court of Appeal’s reasons for granting or denying the motion for en banc reconsideration are explained below.

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Reasons in favor of denying en banc reconsideration

Five of the judges explained that the ability of an entire district court to determine a matter en banc under rule 9.331 is extremely limited. The text of rule 9.331(a) restricts en banc consideration to:

1. a decision that conflicts with another decision in the district; or 
2. a case or issue of exceptional importance.

En banc review is not an institution for monitoring panel decision-making in order to correct individual injustices or mistakes. An en banc court cannot override a panel decision simply because the majority disagrees with it.

The half of the Court in favor of denying en banc reconsideration noted that there was no intra-district conflict, nor was the case itself or any issue within it of exceptional importance. The matter turned narrowly on unique and idiosyncratic facts related to the circumstances of the parties’ marriage and the signing of the prenuptial agreement. This half of the Court noted that, while the case is no doubt of exceptional importance to the parties, it was not a case of exceptional importance, legally speaking. Therefore, it did not merit en banc review.

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Reasons in favor of granting en banc reconsideration

The other half of the Court held that there was jurisdiction pursuant to Fla. R. App. P. 9.331(d) to grant en banc reconsideration because the panel opinion created an issue of exceptional importance by adopting a new, broader definition of coercion potentially affecting all categories of contracts and because consideration is necessary to maintain uniformity in the court's decisions.

Judge Gordo, one of the five judges who dissented from the denial of rehearing en banc,  

emphasized that the case was of exceptional importance and merited en banc consideration based on:

1. the damaging expansion of judicial arbitrariness over contractual rights based on what a particular jurist views as the disparity of the parties' bargaining positions; and,
2. the underlying notion that anytime a contract at issue may have collateral immigration consequences, it must be the product of coercion.