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!

After about a year of deliberation among the bar and the court, the CA Supreme Court has adopted the so-called lawyer “snitch” rule, requiring attorneys to report misconduct by their peers, beginning August 1, 2023.

You can read more about it at the LA Times or at The Recorder.

The new rule obligates attorneys to notify the CA State Bar if they have, according to the rule, “credible evidence that another lawyer has committed a criminal act or has engaged in conduct involving dishonesty, fraud, deceit” or other wrongdoing that “raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness.”  Misconduct is defined in the rule here.

As mentioned in the LA Times, attorneys who do not comply face penalties of up to a three-year suspension of their law licenses.

In July 2020, the Uniform Commercial Real Estate Receivership Act became law, marking a new era for Florida courts — and the culmination of four years of relentless diplomacy by the Business Law Section.  And if you click on that link, you’ll see it is a pretty complicated statute!

The Florida Bar describes the act as follows:

“Drafted in 2015 by the National Conference of Commissioners of Uniform State Laws, UCRERA creates a process for state courts to appoint a receiver in disputes that arise over commercial real estate, typically a default.

Supporters say that once appointed by the court, a neutral receiver can manage an asset and prevent it from falling into disrepair.”

You can read more from the bar about the act and the instrumental way in which Florida’s Business Law Section helped get the act passed here.

Even though the act is 1.5 years old, many attorneys and commercial real estate owners are still unfamiliar with the law and process.

So we’re holding a program all about it on January 31, 2023 that will be taught by one of the two task force members involved in getting the act passed: Kenneth Murena with Damian Vallori (receiver’s counsel and a federal court-appointed receiver).

Also joining the faculty is esteemed judge Lisa Walsh.

You can register for the program, or pre-purchase the recorded package, here.

Judge Walsh will also be joining our 12th Annual Circuit Court Boot Camp on June 2nd.  Please email us at info@pincusproed.com if you would like a coupon for that program. We will have it up on our website by the end of the year.

Our latest featured speaker is Lisa Haidostian from McDermott Will & Emery!

Lisa will be speaking at our upcoming 9th Annual Circuit Court Boot Camp in Chicago on December 6th. Thanks so much for speaking for us, Lisa!

Lisa Haidostian focuses her practice on complex civil litigation. She has worked on significant matters involving products liability, trusts and estates controversies, tax controversies and internal government investigations.

Lisa has a wide range of litigation experience in both federal and state court, including taking and defending depositions, arguing motions, working with expert and fact witnesses, and managing complex electronic discovery.

Lisa serves on her Firm’s Recruiting and Pro Bono Committees and co-chairs the Firm’s Chicago Associates’ Forum. Lisa also maintains an active pro bono practice, including having first-chaired and won a jury trial on behalf of an indigent plaintiff who sustained injuries from an attack.

Our latest featured speaker is Michelle West from Robinson Calcagnie!

Michelle will be speaking at our upcoming 14th Annual Superior Court Boot Camp in Los Angeles on November 8th. We’re glad to have you with us, Michelle!

Michelle West joined Robinson Calcagnie, Inc. in 2008 and has devoted her practice to obtaining recovery for individuals who are catastrophically injured due to defective products including vehicles, tires, skylights, machinery, and pharmaceuticals, among others. In addition to her work in product liability, Ms. West also handles cases involving premises liability, government claims, dangerous condition of public and private property, industrial or construction accidents, wrongful death, traumatic brain injury, amputation, carbon monoxide poisoning, injuries on cruise ships and excursions, and accidents involving big-rig trucks and other commercial vehicles.

Ms. West has recovered numerous seven figure results for her clients at both settlement and trial. Ms. West has also prepared appellate briefs for the California Court of Appeal, including the California Supreme Court, and has argued in front of the 2nd District Court of Appeal in Los Angeles.

Ms. West has an AV rating‚ the highest rating for legal ability and ethical standards under the peer review system of Martindale-Hubbell. Ms. West was also recognized as a Southern California Rising Star in 2010 and 2011 (an honor given to no more than 2.5 percent of attorneys under the age of 40 or practicing less than 10 years) and has also been selected as a 2016 Southern California Superlawyer. In 2014 Ms. West became a Fellow of the ABOTA National Trial College. Ms. West is admitted to the California Bar and the United States District Court‚ Central District. She is a member of the Consumer Attorneys of California‚ Consumer Attorneys of Los Angeles‚ Orange County Bar Association‚ Orange County Trial Lawyers Association‚ Los Angeles County Bar Association‚ and Women’s Lawyers Association of Los Angeles. Ms. West also serves on the Orange County Bar Association’s Administration of Justice Committee, a “blue ribbon” committee which reviews and comments on rules of court and other subject provided for public comment by the Judicial Council, Superior Court and the California State Bar, upon approval by the Executive Committee.

Michelle West graduated cum laude from Pepperdine University School of Law where she graduated in the top 10 percent of the class. Ms. West was an editor of the Pepperdine Dispute Resolution Law Journal‚ a member of the Moot Court Board, and a research assistant to Professor Kristine S. Knaplund. Ms. West received several awards for achievement during law school including the Witkin/West Group award for Academic Excellence for the highest grade in several courses and the CALI Excellence for the Future Award. Ms. West was also on the Dean’s Honor List. She received her undergraduate degree cum laude from the California State University at Long Beach.

In her free time‚ Ms. West enjoys marathons, ultra-distance running events and triathlons (completing 10 full Ironman® triathlons and achieving All World Athlete status). Ms. West has completed more than 50 marathons, several 50-85 mile runs, several 100 mile runs (finishing 1st place female twice), and the 135 mile Badwater® ultramarathon. Ms. West has finished in the top 100 women in the Los Angeles Marathon‚ has run the Boston Marathon twice‚ and raised money for St. Jude’s Children’s Hospital for the Marine Corps Marathon. Ms. West has also completed numerous ultra-distance cycling events, including over 50 century and double century rides, and raised money for cancer research with the Orange County Livestrong® Century Ride.

As part of her charity work, Ms. West serves as a Silver Level Honorary Board Member of the Los Angeles Trial Lawyers Charities (LATLC), an organization that makes a positive difference in the lives of needy persons and groups in the greater Los Angeles area.

It’s an exciting time in L.A. with the new Rams stadium being built and Faith Pincus’ niece is handling corporate and individual sales. Since she is Faith’s niece, we get to pass on the info everywhere and encourage you to call her if your firm or company would like some type of corporate subscription or if you’d like early access to seats as an individual.

If you’re interested in learning more about how to get and utilize seats, call or email Faith’s niece, Sydney Pincus, at (424) 396-6855 or spincus@lased.com. Get a sneak peak of the new stadium here!