How to Mindfully Preserve the Record for Appeal in Florida Civil Cases [Part 2]

In Part 2 of the discussion on How to Mindfully Preserve the Record for Appeal in Florida Civil Cases (read Part I here), former Chief Judge of Florida’s Third District Court of Appeal, Gerald B. Cope, Jr., and Lorayne Perez, both partners at Akerman LLP, continue to share key litigation tips on preserved error, fundamental error, invited error, and MORE to help you effectively preserve the record for appeal in Florida civil cases.

Don’t miss Gerald speak on these vital appellate practices during the upcoming two-part webinar, Preserving the Record for Appeal in Florida Civil Cases on August 1 and 3, 2023.

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Preserved Error

When the objection is timely and the litigant obtains a ruling on it, it is preserved error.

On Appeal, Are You Limited to the Same Cases or Authorities You Cited to the Trial Court? No. While the substance of each argument or objection needs to be presented in the lower tribunal, “[t]he preservation of error requirement does not demand that trial attorneys prepare arguments or objections in the trial court as if they were points in an appellate brief.” Philip J. Padovano, Florida Appellate Practice § 8.1, at 160 (2015).

A (Limited) Safety Net–Fundamental Error (Florida state courts) or Plain Error (Federal courts).  A fundamental error “may be urged on appeal, though not properly presented below.”  Ray v. State, 403 So. 2d 956, 960 (Fla. 1981). It is “‘error which goes to the foundation of the case or goes to the merits of the cause of action.’” Id. (citation omitted).

The “doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Id. Fundamental error includes, for example, “imposing on a defendant compensatory damages which are not authorized by law and which are contrary to law . . . .” Security Bank, N.A. v. Bellsouth Advertising & Publishing Corp., 679 So. 2d 795, 803 (Fla. 3d DCA 1996), approved, 698 So. 2d 254, 256 (Fla. 1997).

Federal courts will review unpreserved errors under a “plain error” standard solely in “those circumstances that ‘undermine the fundamental fairness of the trial and contribute to a miscarriage of justice.’” Marjam Supply Co. of Fla., LLC v. Pliteq, Inc, 812 Fed. Appx. 803, 810 (11th Cir. 2020) (citing united States v. Young, 470 U.S. 1, 16 (1985)).

• Note: The federal Eleventh Circuit has stated that it has the discretion to consider an argument that was not raised in the district court. See Ramirez v. Sec’y, U.S. Dep’t of Transp., 686 F.3d 1239, 1250 (11th Cir. 2012). The court will consider an issue not raised below it “in involves a pure question of law, and refusal to consider it would result in a miscarriage of justice,” “where the interests of substantial justice is at stake,” “where the proper resolution is beyond any doubt,” and where the argument involves “significant questions of general impact or of great public concern.”

Exception: Constitutional Issues in Administrative Cases.  When there is a constitutional issue in an administrative case, a litigant will not be able to obtain a ruling from the administrative agency on the constitutional question. “Generally speaking, administrative agencies are not the appropriate forum in which to consider questions of constitutional import.” Myers v. Hawkins, 362 So. 2d 926, 928 n.4 (Fla. 1978);Southern Alliance for Clean Energy v. Graham, 113 So. 3d 742, 748 (Fla. 2013)(“administrative agencies lack . . . power to consider or determine constitutional issues”); Miles v. City of Edgewater Police Dept., 190 So. 3d 171, 178 (Fla. 1st DCA 2016)(“In Florida workers’ compensation proceedings, constitutional challenges of any sort need not be preserved for appellate review, because JCCs lack jurisdiction to determine constitutionality.”).

The aggrieved litigant should exhaust administrative remedies and then raise the constitutional claim as part of the appeal of administrative action to the district court of appeal. Key Haven Associated Enterprises, Inc. v. Bd. of Trustees of the Internal Improvement Fund, 427 So. 2d 153, 157-60 (Fla. 1982).The litigant should be sure the record is sufficient to allow the court of appeal to consider the constitutional claim. In certain circumstances a litigant may present the constitutional issue in a new action in circuit court. Id.

Caveat: Be sure to research case law in the administrative field at issue in your case.

Types of Error.  In addition to preserved error and fundamental or plain error, another type of error is invited error. “[A] party may not invite error and then be heard to complain of that error on appeal.” Terry v. State, 668 So. 2d 954, 962 (Fla. 1996).

Harmless error.  An error is harmless when “there is no reasonable possibility that the error complained of contributed to the verdict.” Special v. West Boca Medical Center, 160 So. 3d 1251, 1256, 1265 (Fla. 2014)(holding that harmless error test in criminal cases is applicable to civil cases).

In determining whether an error is harmless, the appellate court must ask: Could the admission of evidence that should have been excluded have contributed to the verdict?  Could the exclusion of evidence that should have been admitted have contributed to the verdict?  Unless the beneficiary of the error proves that there is no reasonable possibility that the error contributed to the verdict, the error is harmful. Id. at 1256-57.

After Preserving the Error for Appeal, Take Care Not to Waive or Abandon the Argument During the Appeal.

Be sure to raise your issue in the initial brief. Otherwise, it may be deemed waived. See, e.g., Rosier v. State, 276 So. 3d 403, 406 (Fla. 1st DCA 2019) (“For an appellant to raise an issue properly on appeal, he must raise it in the initial brief. Otherwise, issues not raised in the initial brief are considered waived or abandoned.”); State Dep’t of Rev. v. Price, 182 So. 3d 782, 783 n.5 (Fla. 1st DCA 2015) (“[W]e can only address arguments raised by an appellant if the arguments are in the initial brief.”).  An argument cannot be raised solely in a footnote in the appellant’s brief. R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 41 n.1 (Fla. 3d DCA 1996)(“[A]rguments which are not made as a point on appeal . . . but are found only in footnote in the appellant’s brief, are not properly presented to the appellate court for review.”)(citation omitted).

In federal court, you must devote a specific section of your brief to the issue and cite authority, lest the issue be deemed waived. See Jysk Bed’N Linen v. Dutta-Roy, 787 Fed. Appx. 608, 612 (11th Cir. 2019) (“Dutta-Roy makes perfunctory reference to his argument that the ACPA is ‘non-retroactive,’ but fails to cite authority or devote a specific section of his brief to this issue; this is insufficient to preserve the issue on appeal.”). See also Fed. R. App. P. 28(a)(5); Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681-82 (11th Cir. 2004)

Gerald Cope, Jr. is a popular, frequent speaker in our appellate law programs, “Preserving Your Record for Appeal” in 2017 and “Appellate Skills and Strategies Boot Camp: Navigating State and Federal Appeals” in June 2014.  As mentioned above, Lorayne Perez is a partner at Akerman LLP and she also lectured in 2017 at our “Preserving Your Record for Appeal” program to rave reviews.

You don’t want to miss out on the full discussion in our upcoming program Preserving the Record for Appeal in Florida Civil Cases on August 1 and 3, 2023!