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.

Use coupon code PTRFL10 to receive a 10% discount on your order. ***New Orders Only!

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!

We are so excited that former Chief Judge of Florida’s Third District Court of Appeal, Gerald B. Cope, Jr. is speaking at our upcoming Preserving the Record for Appeal Two-Part Webinar on August 1 and 3, 2023.

Use coupon code PTRFL10 to receive a 10% discount on your order. ***New Orders Only!

Gerald is now a chair of Akerman’s Appellate Practice. He and Lorayne Perez, also a partner at Akerman LLP, created detailed outlines for the program.  Below is a post we adapted from one of their outlines, discussing recent important developments in preserving your appeal, as well as a discussion about the concept of preservation and the judicial mind.

What is highlighted below are initial guiding principles prepared by Gerald and Lorayne about how to preserve a record for appeal in Florida civil cases. Gerald, as well as a variety of other prominent speakers, will elaborate on these principles during the upcoming two-part webinar, Preserving the Record for Appeal in Florida Civil Cases, to be held on August 1 and 3, 2023.

RECENT IMPORTANT DEVELOPMENTS

•  R. Civ. P. 1.530(a) (eff. 4/27/2023) – requires the filing of a motion for rehearing to preserve for appellate review a trial court’s failure to make required findings of fact. Fla. Fam. L. R. P. 12.530 was also amended in the same manner. See In re: Amendments to Fla. R. Civ. P. 1.530 and Fla. Fam. L.R.P. 12.530, 2023 WL 3104357 (Fla. Apr. 27, 2023).
• The court’s opinion adopting the above amendments states that the amendments are “applicable to all orders, not just final judgments, and makes clear that the rules apply only when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court’s order.”
• Rule is in effect now, but motions for rehearing are pending, so rule might be subject to further change.
• This will be addressed in more detail later in our presentation at Preserving the Record for Appeal in Florida Civil Cases.
• Effective January 1, 2023, Florida has a Sixth District Court of Appeal (22-163, § 4, Laws of Fla.):
  • Headquartered in Lakeland, Florida
  • Extends from Orlando and Lakeland to Ft. Myers and Naples.
  • Not bound by decisions of any other District Court of Appeal. CED Capital Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, 2023 WL 1487713, at *3 (Fla. 6th DCA 2023).
  • Administrative Order 23-01: Requires that appellants’ briefs contain “As to each issue presented, a statement as to where in the record on appeal the issue was raised and ruled on as well as identification of the applicable standard of review.

• In federal court, you no longer have to raise in a post-trial motion a purely legal issue which was the basis of an unsuccessful motion for summary judgment in order for the issue to be preserved for appeal. See Dupree v. Younger, 143 S.Ct. 1382, 598 U.S. — (May 25, 2023).
• You do still have to raise in a post-trial motion a sufficiency-of-the-evidence argument that was previously raised in a summary judgment motion.
• When in doubt, raise the issue anew in a post-trial motion.

PRESERVATION OF THE RECORD IN FLORIDA CIVIL CASES

THE CONCEPT OF PRESERVATION

Inside the Judicial Mind.

Fairness.  When an appellant asks an appellate court to reverse a judgment or order, this is a request that the panel write an opinion saying the trial judge made a mistake serious enough to require the proceeding to be done over.

In fairness to the trial judge, the appellate court wants to know that the appellate issue was presented to the trial judge in an understandable way.

“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.” Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (internal quotation marks omitted) (emphasis added).

“[A]n objection on specific grounds does not preserve the error for purposes of appeal on other grounds.” Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir. 1997). See also Fed. R. Evid. 103; Palavicini v. Wal-Mart Stores East, LP, 787 Fed. Appx. 1007, 1012 (11th Cir. 2019) (holding that an argument was not preserved where “the objection was not clear or specific enough for [the circuit court of appeals] to understand” the argument).

Judges Are Attuned to Preservation Arguments.  Many civil practitioners proceed directly to the merits of their opponent’s argument, without looking at the threshold question whether the appellate issue was presented in the trial court.

Over half the workload of Florida’s appellate courts is criminal law, and in criminal cases, preservation issues are constantly raised. Appellate judges become attuned to preservation, and are receptive to preservation arguments where they have merit. Preservation is an issue practitioners should be alert to.

Organizing Principles.  Every outline on preservation, including this outline, has pages of detail.  Is preservation a hodge-podge of disconnected rules, or is there an organizing principle or theme?  For the most part, the authorities in this outline are applications of the basic preservation rules to specific situations.

Contemporaneous Objection Rule

The basic idea is simple: an objection must be promptly presented to the trial court so as to give the judge a fair chance to rule on it.

To meet the objective of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.

Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).

And counsel must obtain a ruling on the objection.

In Florida state court, if you file a motion setting forth your argument, but you never obtain a ruling, the issue is not preserved for appeal. See, e.g., Grazette v. Magical Cruise Co. Ltd., 280 So. 3d 1120, 1123 n.1 (Fla. 5th DCA 2019) (“[T]his issue was not properly preserved as it was never set for hearing and was never brought to the court’s attention at any point after filing.”).

(to be continued in our seminar and Part 2 of this post!)

To learn more about this topic, including a discussion about what a Preserved Error is, types of Error and not accidentally abandoning the argument during your appeal, sign up for our upcoming program, or order the recorded package: Preserving the Record for Appeal Two-Part Webinar.

Additional authorities that Gerald and Lorayne mention include:

1. Philip J. Padovano, Florida Appellate Practice.
2. Philip J. Padovano, Florida Civil Practice.
3. Charles W. Ehrhardt, Florida Evidence.
4. Charles W. Ehrhardt, Florida Trial Objections.
5. Stephen L. Brannock, “Florida Civil Appellate Practice,” in The Florida Bar, Advanced Appellate Practice and Certification Review.
6. 3 Fla. Jur 2d, Appellate Review, Part V – Preserving Questions Below.
7. Jason S. Lambert, “The Perfect Proffer,” Florida Bar Journal (April 2015).

Always popular at our seminars, Gerald Cope previously spoke on this topic in our “Preserving Your Record for Appeal” in 2017 and also at our “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.

Looking forward to the program!