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The Florida Bar
www.floridabar.org
The Florida Bar Journal
July/August, 2011 Volume 85, No. 7
The Butler Tetralogy: The Tipsy Coachman Doctrine Revisited

by James A. Herb and Kimberly J. Kanoff

Page 58

In 1879, the first legal reference to the tipsy coachman doctrine surfaced in a case from the Supreme Court of Georgia.1 Since that time, the doctrine has appeared in countless opinions, often referring to the phrase “right for the wrong reason.”

In their 2007 article titled “Tales of the Tipsy Coachman: Being Right for the Wrong Reason — The Tipsy Coachman is Alive and Well and Living in Florida,” James A. Herb and Jay L. Kauffman detailed the development of the doctrine. That article summarized the tipsy coachman doctrine as follows:

If a trial decision is right for the wrong reason, it may be affirmed on appeal if there is any theory or legal principle in the record to support it. The key to the application of the doctrine is that there must be support for the alternative theory or principle of law in the record before the trial court. As a result of this doctrine, the appellee on appeal may argue a basis for affirmance even if not presented and argued in the trial court. In applying the doctrine, however, due process is an area of particular concern. Other possible limitations to its application occur if the trial court has failed to exercise discretion, or has failed to make a necessary ruling. The doctrine may be applied to affirm the trial court, but not to reverse a trial court decision. Finally, a trial court might increase the likelihood of an affirmance when dealing in a fogbound area of law by allowing evidence and argument into the record on alternative bases, and by making alternate findings and holdings.2

The most recent case cited in that article was Arthur v. Milstein, 949 So. 2d 1163 (Fla. 4th DCA 2007). Since Arthur was issued, more than 80 additional Florida appellate opinions have mentioned the “tipsy coachman” or the “right for the wrong reason” doctrine. The Florida Supreme Court issued two of those opinions on review of two Fourth District Court of Appeal decisions. This article denominates these four opinions as the “Butler tetralogy” and analyzes their impact on the tipsy coachman doctrine.3

Butler I
Yusem v. Butler, 966 So. 2d 405 (Fla. 4th DCA 2007) [Butler I] arose from almost 20 years of litigation concerning a business partnership gone sour. The trial court ultimately ruled on many issues in the final judgment. On appeal, Butler raised six issues, one of which became the center of the tipsy coachman discussion. Specifically, Butler contended that the trial court erred by applying “due diligence” to defeat two of his claims against Yusem (one for fraudulent misrepresentation and one for negligent misrepresentation) because Yusem did not plead “due diligence” as an affirmative defense.

The Fourth District recognized that “due diligence” must be pleaded in order to avoid waiver, and that Yusem failed to do so. However, the Fourth District reviewed the trial transcript and determined that the trial court misapplied the term “due diligence” to express its conclusion that Butler did not “justifiably rely” on Yusem’s representations. Therefore, the Fourth District held that Butler failed to establish one of the elements of fraud — the justifiable reliance on Yusem’s representations — and affirmed on this issue.

All in all, the Fourth District complimented the trial court: “[D]espite our reversal on some issues and considering all aspects of the case . . . the trial court should be commended for doing its best to wrangle a complex and contentious case that had been many years in the making.”4

Butler II
In Butler v. Yusem, 3 So. 3d 1185 (Fla. 2009) [Butler II], Butler sought review of Butler I in the Florida Supreme Court, claiming the Fourth District erred in holding, among other things, that his claims for fraudulent misrepresentation and negligent misrepresentation were barred by a failure to show “justifiable reliance.” The Supreme Court agreed with Butler and found that the Fourth District erred in recharacterizing the trial court’s ruling based on “due diligence” as a ruling based on lack of “justifiable reliance.” The Supreme Court held, based on its review of the record, that the trial court applied the defense of “due diligence,” not lack of “justifiable reliance,” in arriving at its final judgment.

The Supreme Court quashed Butler I and remanded for the Fourth District to determine whether it could apply “justifiable reliance” under the tipsy coachman doctrine to affirm the trial court. The Supreme Court observed, “[T]he ‘tipsy coachman’ doctrine allows an appellate court to affirm a trial court that ‘reaches the right result, but for the wrong reasons’ so long as ‘there is any basis which would support the judgment in the record.’”5 Because the Supreme Court could not determine whether there was support for the alternative theory or principle of law, it instructed the Fourth District to discuss each individual claim separately in applying its analysis.

Butler III
On remand from the Supreme Court, the Fourth District observed in Yusem v. Butler, 10 So. 3d 1159 (Fla. 4th DCA 2009) [Butler III], that it had been mandated to consider whether — from the record — it could affirm the trial court on the issue of “justifiable reliance” under the tipsy coachman doctrine. Without ordering additional briefing, the court issued its opinion.

The Fourth District stated that it reviewed the trial court’s factual findings and concluded (as it had in Butler I) that “the trial court’s reference to due diligence actually translated to Butler’s failure to establish the element of justifiable reliance.”6 The Fourth District affirmed the trial court’s decision that Butler did not prevail on the fraudulent representation and negligent misrepresentation claims, but the court neither addressed the tipsy coachman doctrine nor analyzed the individual claims separately as the Supreme Court had instructed in Butler II.

Butler IV
Butler again sought review by the Florida Supreme Court in Butler v. Yusem, 44 So. 3d 102 (Fla. 2010) [Butler IV], this time claiming conflict between Butler III and Butler II on application of the tipsy coachman doctrine.

Upon reviewing Butler III, the Supreme Court concluded that Butler III suffered from the same problem as Butler I. The Supreme Court determined that the Fourth District did not comply with the mandate in Butler II to address each claim individually to determine if “justifiable reliance” and the tipsy coachman principle applied.

The Supreme Court went on to say:

Under the tipsy coachman doctrine, where the trial court “reaches the right result, but for the wrong reasons,” an appellate court can affirm the decision only if “there is any theory or principle of law in the record which would support the ruling.” Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (emphasis added) (quoting Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)). As we stressed, the key to this doctrine is whether the record before the trial court can support the alternative principle of law. Here, the Fourth District did not address the claims individually, as directed, and summarily concluded that the same findings for a lack of due diligence would equally support the findings of justifiable reliance, without ever reviewing whether justifiable reliance was a necessary element of fraudulent misrepresentation or negligent misrepresentation.7

Thus, the Fourth District erred in concluding that “justifiable reliance” is a necessary element of fraudulent misrepresentation. It is not.

The Fourth District erred in applying the tipsy coachman doctrine to affirm the trial court’s ruling on negligent misrepresentation, but for a different reason. “Justifiable reliance” is a necessary element in a negligent misrepresentation action. Based on the record, however, the findings of the trial court did not show that Butler failed to establish all the elements of his negligent misrepresentation claim.

Butler urged the Supreme Court to remand with directions for the trial court to enter judgment in his favor on the fraudulent misrepresentation and negligent misrepresentation claims. The Supreme Court declined to do so, however, because it was not clear that the trial court found that Butler had established the elements of those claims.

Instead, the Supreme Court quashed the Fourth District’s decision and again remanded the case to the Fourth District with instructions that it be returned to the trial court for its determination as to whether Butler was entitled to relief based on his fraudulent misrepresentation and negligent misrepresentation claims.8

The Policy Behind the Tipsy Coachman Doctrine
The policy behind the tipsy coachman doctrine is to arrive at the right result. Florida appellate courts routinely rely upon the doctrine to affirm cases where the lower court has reached the correct result, but may have used an incorrect analysis to get the correct result.

If the lower court uses faulty reasoning to get to the right result, there is no harm to the litigants as long as the record supports the result. If the appellate court’s objective is to search for reversible error, then perhaps applying the tipsy coachman doctrine is part of that process, since there would be no reversible error if the record supports the result. It is, after all, the appellate court’s job to make its own determination as to the correctness of the lower court’s decision.

From the perspective of the legal system, the tipsy coachman doctrine is a doctrine of efficiency in disposing of cases and avoiding pointless relitigation, assuming that the parties receive due process. In fact, the tipsy coachman doctrine has become ingrained in Florida’s jurisprudential landscape.

Is Tipsy Coachman Discretionary or Mandatory?
An issue left unsettled in the 2007 article was whether the application of the doctrine by Florida appellate courts is mandatory or discretionary. Some other states, such as Oregon, consider it discretionary: “[T]he ‘right for the wrong reason’ principle permits a reviewing court — as a matter of discretion — to affirm the ruling of a lower court on an alternative basis when certain conditions are met.”9

Various Florida appellate opinions also indicate that an appellate court’s application of the doctrine is discretionary. For instance, the Fourth District recently commented that “[a]n appellate court may apply the ‘tipsy coachman’ doctrine to affirm a lower court’s holding when the lower court reached the correct result despite using incorrect reasoning,” but held it inapplicable in that case.10 Yet the Supreme Court’s discussion of the doctrine in the Butler tetralogy suggests mandatory application.

Issues Raised and Practical Matters
The Butler tetralogy raises several issues for practitioners and appellate judges. Although the tipsy coachman doctrine may appear to create an easy argument, its application is not that simple. In Butler, the Fourth District tried several times to satisfy the Supreme Court’s instructions, but to no avail. There are also practical matters that surface from the Butler tetralogy:

1) It appears that an appellant should generally avoid attacking the reasoning of the lower court. The lower court’s reasoning is usually not the real issue. Rather, it is the result.

2) It is unclear whether an appellate court is obligated to apply the tipsy coachman doctrine whether or not the appellee raised the doctrine in its brief. However, if there is a potential application of the tipsy coachman doctrine, the appellee should be proactive in asserting application in its answer brief.

3) The obligation of the appellate court to apply the tipsy coachman doctrine seems to be somewhat demanding under the Butler tetralogy. The Supreme Court mandated the Fourth District to conduct a specific inquiry into the record and apply the tipsy coachman doctrine if applicable.

Unanswered Questions
The Butler tetralogy also leaves several questions unanswered:
1) Is the Butler tetralogy precedent for future application of the tipsy coachman doctrine in all cases? Or is it limited to its particular facts?

2) Will the Butler tetralogy result in appellate courts issuing more PCAs where the affirmance is based on the tipsy coachman doctrine? What if the appellate court determines there is no addition to precedent or case law by individually detailing the doctrine to each issue in the case?

3) Has the Butler tetralogy established a viable path for Supreme Court review, based on an incorrect application of the tipsy coachman doctrine?

Conclusion
Rest assured, despite the confusion in the Butler cases, the key to applying the tipsy coachman doctrine continues to be whether the record can support the trial court’s ruling under an alternative principle of law. Appellate court judges and their law clerks spend a significant amount of time combing through the record to make the right decision. It is unclear how the appellate and trial judges will actually apply the Butler tetralogy in their everyday handling of the overwhelming number of cases that come before them.

The 2007 article on this topic concluded with this question: “[W]ill the coachman successfully drive Cinderella home or will the coach turn into a pumpkin along the way? Watch your advance sheets for further tales of the tipsy coachman.”11

We conclude this article with the observation that the coach did appear to turn into a pumpkin, and then back into a coach in the saga of the Butler tetralogy. Having first appeared in the legal world more than 130 years ago, the coachman continues to evolve, and if anything, is becoming more potent with age. And, oh yes, please do keep watching your advance sheets for future tales of the tipsy coachman.



1 Lee v. Porter, 63 Ga. 345 (Ga. 1879) (“the pupil of impulse, it forc’d him along, His conduct still right, with his argument wrong; Still aiming at honor, yet fearing to roam The coachman was tipsy, the chariot drove home”).

2 James A. Herb & Jay L. Kauffman, Tales of the Tipsy Coachman: Being Right for the Wrong Reason — The Tipsy Coachman is Alive and Well and Living in Florida, 81 Fla. B.J. 11 (2007).

3 For ease of reference, the authors have christened these cases, in chronological order, Butler I, Butler II, Butler III, and Butler IV.

4 Butler I, 966 So. 2d at 415.

5 Butler II, 3 So. 3d at 1186 n.3 (citing Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002) (quoting Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999))).

6 Butler III, 10 So. 3d at 1160.

7 Butler IV, 44 So. 3d at 105.

8 At the time this article was written, the Butler case had not returned to the Fourth District.

9 Outdoor Media Dimensions, Inc. v. State, 20 P.3d 180, 195-96 (Or. 2001).

10 Ray v. State, 40 So. 3d 95, 98 (Fla. 4th DCA 2010) (emphasis added).

11 Herb & Kauffman, Tales of the Tipsy Coachman: Being Right for the Wrong Reason — The Tipsy Coachman is Alive and Well and Living in Florida, 81 Fla. B.J. 11 (2007).


James A. Herb practices probate, trust, and guardianship litigation, and related appellate law, in Boca Raton in the Herb Law Firm, Chartered. He is the principal author of the chapter on “Appellate Practice in Probate” in Litigation Under the Florida Probate Code (Fla. Bar 7th ed. 2009; 8th ed. forthcoming 2011). He is also a charter member of the Appellate Practice Section.

Kimberly J. Kanoff received her J.D. from the University of Miami School of Law. She is a career attorney for Judge David M. Gersten at the Third District Court of Appeal in Miami. She is also adjunct faculty at Ave Maria School of Law and a coach for the St. Thomas University School of Law Mock Trial Team.

This column is submitted on behalf of the Appellate Practice Section, Matthew J. Conigliaro, chair; Kristin A. Norse, editor, and Chris McAdams, Brandon Christian, and Bretton C. Albrecht, assistant editors.

[Revised: 02-10-2012]