This article is the first in a continuing series that will focus on preservation of error for appeal. Each month, Boyd & Jenerette’s appellate attorneys will analyze a specific topic and advise how to properly preserve any issues or arguments for appeal. If you have any questions about a topic, would like to discuss any article, or would like to refer a case, please feel free to reach out to our appellate attorneys. We would also be happy to provide continuing education courses on any of the topics to adjusters or attorneys.

WHAT IS PRESERVATION OF ERROR?

Preservation of error is the method of raising issues and arguments during litigation and trial so that they may be later reviewed by the appellate court. If an issue is not addressed the proper way, it will be considered waived by the appellate court and it will not be considered.

This is generally true even if your issue had merit and would have required reversal. In other words, an appealing party has to preserve in order to win their appeal. This is crucial. It is the difference between being liable for a five million dollar judgment or getting it reversed on appeal.   It is the difference between protecting attorney-client or claims file privileged documents or being forced to turn them over. It is the difference between getting a new trial or being stuck with the result obtained.

So, why is this? The Florida Constitution established appellate courts as courts of review and gave the courts limited jurisdiction to adjudicate matters. Fla. Const. Art. V, § 4. “An appellate court is reactive; it can only review asserted errors made by lower tribunals such as courts and administrative agencies. Appellate courts may not decide issues that were not ruled on by a trial court in the first instance.” Sierra by Sierra v. Pub. Health Trust, 661 So. 2d 1296, 1298 (Fla. 3d DCA 1995). See also Abrams v. Paul, 453 So. 2d 826, 827 (Fla. 1st DCA 1983).

As a result,

[p]roper preservation of error for appellate review generally requires three components. First, the party must make a timely, contemporaneous objection at the time of the alleged error. Second, the party must state a legal ground for that objection. Third, in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.

Aills v. Boemi, 29 So. 3d 1105, 1108-09 (Fla. 2010) (internal citations omitted). See also Bryant v. State, 901 So. 2d 810, 822 (Fla. 2005); Morrison v. State, 818 So. 2d 432, 446 (Fla. 2002).

We often see attorneys misstep as to number three and do not state all of the grounds for their objection. For instance, a party objects as hearsay, but he or she ignores other possible arguments, such as it violates a motion in limine or injects the issue of insurance into the proceedings. If the party is the appealing party, he or she limited to only those arguments specifically made to the trial court. The trial court must have had the opportunity to consider the objection and the arguments made. Thus, the appealing party would be limited to arguing hearsay in this example. The appellate court cannot, and will not, consider the other grounds.

In sum, the key to preservation of error is: Was the trial court given an opportunity to correct the error?  If the answer is yes, then the matter is preserved and you can raise it on appeal.

If you have any questions about this article, preservation of error, or would like to refer a matter, please contact our appellate attorneys.

About the Author:

 
Kansas R. Gooden is a Board Certified Appellate Specialist, AV rated, and serves as the firm’s appellate practice group leader. She has extensive experience handling all types of civil appellate proceedings, including extraordinary writs and plenary appeals, in state and federal courts. She also provides trial and litigation support to attorneys throughout the state. Kansas is highly involved in the state and local bar associations and has served in many leadership roles. She currently is the Chair of the FDLA’s Amicus Committee and serves on the Board of Directors for the organization. She also serves on the Florida Bar’s Appellate Board Certification Committee, the Florida Bar’s Appellate Practice Section’s Executive Council, and as the Section’s Continuing Legal Education Chair. Kansas is a frequent lecturer and travels the state presenting seminars and presentations on various topics to both attorneys and adjusters.