This decision on rehearing offers little substitutive interest to practitioners but does bring up an interesting strategic and procedural point. In this case, the Court of Appeals affirmed its initial order awarding appellate fees and costs but modified its published decision based on two errors pointed out by the parties seeking rehearing.
This case demonstrates the Court of Appeals willingness to correct or modify its opinions on rehearing when pointed to specific errors or misstatements. However, the ultimate effect of the order in this case provided no relief to the parties seeking rehearing. Parties faced with an unfavorable appellate decision sometimes face a difficult decision of whether to seek rehearing or petition the Supreme Court for transfer. The odds of obtaining favorable relief through either procedure are long, but in certain circumstances parties must seek such relief. Petitions for rehearing are especially difficult to win. Parties are not simply going to convince the Court of Appeals it was wrong based on new argument or repeated argument. Even if the party points out clear factual errors made by the Court of Appeals, chances are, any such errors did not affect the ultimate outcome of the initial opinion. Although a petition for rehearing is certainly an important part of appellate practice, practitioners should recognize that only clear and substantial errors by the Court of Appeals will lead a panel to reconsider the outcome of its initial opinion. Often, practitioners can better serve their cause and their clients by forgoing the petition for rehearing and proceeding directly to the petition to transfer step.
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