One of the (many, many) suboptimal things about becoming an older lawyer is that you forget whether the rule you're thinking about is an old rule and whether there's a newer rule that's taken its place.
I was reminded of this reality when I read Justice Miller's modification of his opinion this afternoon. It reads, in full:
"On the court’s own motion, the majority opinion filed in this matter on January 14, 2026, is modified as follows:
To the “Disposition,” we add the following sentence: “Each side is to bear their own costs on appeal.”
Except for this modification, the majority opinion remains unchanged. The modification does not effect a change in the judgment."
Here was my thought. With a reminder that perhaps I'm thinking about an old rule, or maybe I'm simply mistaken on the merits. Nonetheless, this was definitely my internal thought:
"Wait. Deciding not to award costs does effect a change in a change in the judgment. Doesn't it?"
Well? Doesn't it?
It seems like it does change the judgment to me. Before, because the opinion was silent, the prevailing party was entitled to costs. That's money. Now, after the modification, they're not. So as a result of the change, they're entitled to less money. I would think that's a change in the judgment. (As well as one that might potentially have practical effects. Maybe you were fine with the opinion because even though it didn't give you everything you wanted, at least you got your costs, which maybe were huge. But then once you didn't get costs, maybe you wanted to seek review or something like that.)
I understand -- or at least think I understand -- why Justice Miller wants to say it doesn't effect a change in the judgment. As a practical matter, it probably doesn't, in fact, matter that much. And the underlying opinion was issued way back in January, over 60 days ago, so the Court of Appeal probably does not want to restart the clock vis-a-vis the finality of its decision at this point.
But I can't help still thinking that it does, in fact, change the judgment. And think, though perhaps I'm remembering incorrectly, that other opinions that have done exactly the same thing have said that such changes do, in fact, effect a change in the judgment.
I read what I believe is the underlying rule, which doesn't provide a precise answer to the question. One might perhaps read Rule 8.264(c)(2) to say that the Court of Appeal can decide for itself whether or not to say that a change modifies the judgment. But that surely can't be what it actually means, can it? If so, couldn't the Court of Appeal issue an opinion, wait for a while, and then eventually say "We hereby modify the appeal; in the original opinion we held that plaintiff won, but now we amend the opinion to say that defendant wins, and we hereby insert the word 'not' before every verb in the prior version. This does not effect a change in the judgment. Ha!" Or change "affirmed" to "reversed," change "We hereby instruct the court to enter a judgment for $10" to "$10 million," etc. That can't be right.
So I think that this is, in fact, actually a change. FWIW.
P.S. - I also wonder, parenthetically, what made the Court of Appeal go back and revisit the cost award after so long? The docket doesn't reflect that anyone ever filed anything in the interim. Did the panel really just wake up one day and randomly think "Geeze, you know what, now that I think of it, I don't feel like awarding costs to the prevailing party in that appeal that I decided two months ago?"
