by Sylvia H. Walbolt and E. Kelly Bittick, Jr.
Florida intermediate appellate courts are error-correcting courts. We all know that. So when does a Florida appellate court not correct error? When it finds the error is harmless1 or when it applies the tipsy coachman rule and affirms, despite finding error, because the result is deemed right for the wrong reason.
The phrase “tipsy coachman” comes from a 1774 poem titled “Retaliation” by Irish writer Oliver Goldsmith. It appears to have first been used in a reported judicial decision in this country in the 1879 Georgia decision in Lee v. Porter, 63 Ga. 345 (1879).2 In the poem, the coachman is tipsy but the horse, nonetheless, gets him home.
The Georgia court leads into its quote of the poem by saying, “The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it.”3 Thus, the court observed that “[i]t not infrequently happens that a judgment is affirmed upon a theory of the case which did not occur to the court that rendered it, or which did occur and was expressly repudiated.” 4
The earliest Florida decision employing the rule appears to be Carraway v. Armour & Co., 156 So. 2d 494 (1963), in which the Florida Supreme Court observed that the rule was “appropriately used” in Lee and quoted the poem itself.5 On this basis, the court quashed an order of the Industrial Commission that had reversed an award of workers’ compensation benefits issued by the deputy commissioner.6 Although the deputy commissioner had proceeded under the wrong statutory provision, he had “arrived at a substantially correct conclusion” under a different statutory provision, and his order had to be reinstated.7
By 1984, in Vandergriff v. Vandergriff, 456 So. 2d 464 (Fla. 1984), the supreme court recognized as “well-established” the rule that “trial court decisions are presumptively valid and should be affirmed, if correct, regardless of whether the reasons advanced are erroneous.”8 But it was Judge Cowart of the Fifth District Court of Appeal, who in a dissent that same year in Holland v. Holland, 458 So. 2d 81 (Fla. 5th DCA 1984), harkened back to Goldsmith’s poem and observed that “in some legal circles this rule of law is known as the ‘tipsy coachman’ rule.”9
Hundreds of Florida opinions since have used the phrase “tipsy coachman” in affirming a trial court’s decision. Many more opinions, both inside and outside Florida, rely on the “right for any reason” or “right for the wrong reason” rule, without referring to it as the “tipsy coachman.” Though the rule is frequently employed by Florida appellate courts, its application is far from automatic. Moreover, it presents some very interesting legal issues for the appellate practitioner, which are considered in this article, as well as some of the strategic considerations the rule can implicate.
What Exactly Does “In The Record” Mean?
To begin with, the question arises whether the rule can be applied by the appellate court to affirm a trial court ruling based on an argument that never was directly presented to the trial court. The usual rule, of course, is that a trial judge must be provided an opportunity to correct an alleged error; only then is it preserved for appellate review and available as a ground for reversal.10
The rule is not necessarily the same when it comes to arguments for affirmance. In Dade County School Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999), for example, the Florida Supreme Court explained that under the tipsy coachman rule, “if a trial court reaches the right result but for the wrong reason, it will be upheld if there is any basis that could support the judgment in the record.”11 That can, however, be just the start of the inquiry by the appellate court.
In State Farm Fire and Casualty Co. v. Levine, 837 So. 2d 363 (Fla. 2002), in somewhat unusual circumstances, the supreme court addressed the requirement that the alternative ground asserted for affirmance be “in the record.” In that case, the trial court had denied a motion for new trial grounded on a post-trial claim of juror nondisclosure during voir dire.12 The district court affirmed. The supreme court, however, had subsequently invalidated the “absolute” requirement that investigation of the venire to be completed during trial, and the respondent conceded that the district court had erred in affirming based on that now overturned rule.13
But then, citing Radio Station WQBA, the respondent argued that the district court’s decision nonetheless should be affirmed under the tipsy coachman rule because the juror’s nondisclosure was not material.14 The supreme court declined to apply tipsy coachman, saying, “[T]he record does not provide an adequate basis for us to reach such materiality conclusion as a matter of law.”15 Although there had been some argument on materiality to the trial court, neither counsel nor the trial court had focused on that issue.16
The Levine court concluded not only that the alternative argument urged for affirmance was never raised in the trial court, but also that the failure had led to an insufficient record to fairly support it.17 The supreme court accordingly remanded the case to the trial court for consideration of the proper principles governing juror non-disclosure.18
In doing so, the supreme court specifically relied on its decision in Robertson v. State, 829 So. 2d 901, 906 (Fla. 2002), as establishing “the key to applying the tipsy coachman doctrine is that the record before the trial court must support the alternative theory or principles of law.”19 In Robertson, the district court, in an en banc plurality decision, concluded the evidence that the defendant had previously threatened someone else with an AK-47 was permissible Williams rule evidence, and it affirmed the trial court on this ground, even though it had not been either raised by the state or considered by the trial court.20
The supreme court, however, held that the district court erred in holding this testimony was admissible under the Williams rule.21 In doing so, the court also specifically addressed the district court’s “misapplication of the tipsy coachman doctrine,” saying, “[T]ipsy coachman could not be used where the record does not reflect an evidentiary basis sufficient to permit us to make a determination as to whether these defenses are applicable in the instant case.”22
Because the state did not submit the required notice of intent to raise the Williams issue, and never in fact raised it below, the defendant was not alerted to the issue and did not present evidence on it.23 Therefore, the issue had not been “litigated.”24
In addition, the Williams issue required both a “highly individualized, factually intensive inquiry” by the trial judge and a cautionary instruction, and neither had been done below.25 “Thus, the record as it existed was insufficient for the [DCA] to determine whether the evidence was properly admitted under the Williams rule [and] the trial court never made determinations” on key foundations for application of the rule.26 It was a perfect storm in Robertson — there were multiple reasons why the alternative ground should not be a basis to affirm, and the supreme court mentions all of them in refusing to do so.
Thereafter, in Powell v. State, 120 So. 3d 577 (Fla. 1st DCA 2013), the First District Court of Appeal, in refusing to apply the tipsy coachman rule, addressed the foundational requirement of a “basis in the record.” It acknowledged that the appellee need not have raised the alternative argument below.27 But the ground will not be accepted when factual findings necessary to support the theory were not made below.28 So, no tipsy coachman affirmance.
The First District then specifically considered how appellate courts might address alternative theories for affirmance raised by an appellee for the first time at oral argument. 29 The court concluded that while the tipsy coachman doctrine “allows” an appellate court to consider alternative grounds supporting affirmance, “it does not compel [the court] to overlook deficient records and blaze new trails that even the tipsiest of coachman could not have traversed.” 30 As the court observed, “[b]asic principles of due process suggest that courts should not consider issues raised for the first time at oral argument.” 31 When arguments for affirmance are raised for the first time at oral argument, the appellant loses the opportunity to address them except “in the fleeting minutes of their reply arguments.” 32
Ultimately, the First District decided that “the better approach” is “to look askance at the practice of presenting new grounds for affirmance for the first time at oral argument,” and rejected the notion that an appellate court must consider issues raised by the appellee for the first time at oral argument. 33 The court expressly “stop[ped] short of saying never.”34 It recognized there may be “[r]are or unusual instances” for considering an issue raised for the first time at oral argument, but refused to recognize “an inflexible principle that a court must do so.” 35
What if the Issue Involves the Trial Judge’s Discretion?
What if the issue that was never addressed by the trial judge involved the judge’s exercise of discretion? For example, what if the appellate issue is whether a requested amendment to the pleadings was properly denied? If the alternative argument is that the requested amendment would have been futile, in addition to being untimely as the trial court found, you almost certainly would want to raise it in support of the trial court’s ruling on appeal. Futility is a pure question of law, a classic tipsy coachman argument. But what if the trial court found futility, but never reached the additional, more discretionary issue of untimeliness with no good cause shown? Should an appellate court affirm based on tipsy coachman when the issue involves the exercise of the trial court’s discretion?
Although the decisions certainly suggest some of the problems that potentially can arise in doing so, we have found no Florida decision flatly declaring that tipsy coachman never can be applied in those circumstances. In fact, the supreme court has held that evidentiary rulings, which are reviewed for abuse of discretion, will be affirmed on any ground supported by the record.36
Consistent with that notion, the First District applied tipsy coachman to a discretionary issue, in an en banc, per curiam decision with six judges concurring, one judge concurring separately, and three judges concurring in part. Childers v. State, 936 So. 2d 585, 592-93 (Fla. 1st DCA 2006), cert. den., 936 So. 2d 619 (Fla. 1st DCA 2006) (en banc). In Childers, the trial court ruled that evidence relating to a plea agreement by a prosecution witness in a criminal trial — which the defendant had sought to use to impeach the witness’ credibility — should be excluded as irrelevant.37 On appeal, the majority held that it was error to rule the evidence irrelevant, but that its exclusion was correct under a different rule of evidence, §90.403, because its limited relevance would have been outweighed by unfair prejudice.38
Thus, although acknowledging the issue was reviewed on appeal for abuse of discretion, the court affirmed based on the tipsy coachman rule, which it described as arising “from the presumption of correctness with which the judgment of the trial court is clothed.” 39
In addressing the court’s denial of the appellant’s motion for certification to the Florida Supreme Court, one dissenting judge declared (among many other things) that §90.403 afforded trial judges broad discretion with respect to the exclusion of evidence.40 Moreover, the particular issue of “bias” presented in Childers involved a “balancing” of “unfair prejudice against the probative value” of the evidence sought to be excluded.41 He then declared as follows:
“By its application of the ‘tipsy coachman’ rule in the present case, the majority has essentially applied a trial court standard of discretion in a case where the trial court never exercised discretion itself. As a result, this court’s application of its own discretion under [§]90.403 is not subject to review under any standard and, arguably, the whole purpose of the statute has been defeated because the trial court has never made the critical, initial consideration. One struggles to understand how this court can weigh in on an abuse of discretion question in the absence of a trial court’s exercise of discretion. Moreover, we should not ignore the fact that the [s]tate has never argued or briefed the point upon which the majority has now affirmed. “42
Powerful points indeed, especially when a criminal conviction is at stake. However, one could respond to the dissent by observing that a trial judge who had concluded the proffered evidence had no relevance whatsoever hardly could be expected to conclude as a discretionary matter that the probative value of the evidence outweighed its prejudicial effect. Moreover, the appellate court could implicitly conclude that the facts presented were so compelling that it would have been an abuse of discretion for the trial judge to have admitted the evidence.43
Why bother to require the trial court and the parties to expend further time and resources on a remand? Perhaps because, as suggested by the quoted dissenting opinion, with the benefit of time and thought after an issue was squarely raised, the appellant might be able to develop reasons, authorities, and evidence better supporting his or her position on the issue and persuade the trial judge to differently exercise discretion.
Notably, the First District in dictum in Webster v. Body Dynamics, Inc., 27 So. 3d 805 (Fla. 1st DCA 2010), refused to apply tipsy coachman to §90.403, without mentioning Childers. In Webster, just as in Childers, the trial court erroneously excluded evidence as irrelevant.44 The First District nevertheless affirmed, finding the error harmless.45
The court expressly declined to consider the alternative argument for affirmance under tipsy coachman that evidence could properly have been excluded under §90.403.46 The court emphasized that section contemplated a “large measure of discretion” for the trial court.47 “The weighing contemplated by [§]90.403 is for the trial court, in the first instance, and here the trial court ruled the [evidence] altogether irrelevant, so that no weighing took place below.”48 This was precisely the point made by the dissent in Childers.
What About the Procedural Requirements for a Summary Judgment?
In some circumstances, an effort to assert an argument on appeal under the tipsy coachman rule can run up against a specific requirement of the Florida Rules of Civil Procedure. In Loranger v. State, 448 So. 2d 1036 (Fla. 4th DCA 1983), for example, the Fourth District reversed a summary judgment, holding the trial court erred in ruling as a matter of law that “the defendant’s assumed negligence was ‘too remote’ to constitute a proximate cause of the plaintiff’s injury.”49 On appeal, the defendant argued the lack of a duty as an additional reason for affirming the trial court’s summary judgment.50 The appellant/plaintiffs argued that the issue had never been raised before the trial court and could not be raised for the first time on appeal. 51
On rehearing, the Fourth District adhered to its reversal of the summary judgment but wrote to address the duty argument first advanced on appeal. It began by declining to “deal with the philosophical frictions between the two appellate maxims of ‘right for the wrong reason’ and ‘raising issues for the first time on appeal.’”52
Instead, it cited Fla. R. Civ. P. 1.510’s requirement that a motion for summary judgment “state with particularity the grounds upon which it is based and the substantial matters of law to be argued.” 53 The court went on to say:
“We are not certain precisely what legal and factual issues may arise if and when the trial court is presented with an appropriate pleading raising the issue of the existence of a legal duty. Suffice it to say that we will not deal with these issues initially on appeal under the circumstances of this case.” 54
What Is an Appellate Practitioner to Think?
As can be readily appreciated from all of this, there is much to consider and work through as appellee’s counsel in evaluating whether you can raise a right for any reason, alternative ground for affirmance in the answer brief. This is a versatile rule, and there is something for everyone somewhere in these cases.
Before anything else, take a look at the caselaw and applicable rules to be sure there is no procedural rule that would require you to have raised this issue in order for the trial judge to rule in your favor on it. These might include, for example, notice requirements as in Robertson, rules relating to summary judgment as in Loranger, or rules of procedure requiring the pleading of certain defenses.
If not, the question then becomes whether you should raise what has been characterized as a permissive rule that allows an affirmance, but may not be deemed to require it. In deciding whether to devote precious pages of an answer brief and precious minutes of an oral argument to an alternative ground, here are just a few things to consider.
First, what actually happened below? If the argument was not raised below, why not, and is it really that strong if it was not even raised before the trial court? If it was raised below, did the trial court reach the issue and, if so, what did it say? Is the ground discretionary? Would factual findings by the trial court have been required to support a ruling in your favor? The answers to these questions alone may determine whether an alternative ground should be raised in the answer brief.
Second, how many hurdles have to be jumped to affirm on this alternative ground? As many as in Robertson? Or only one straightforward question of law?
Third, and perhaps most important, how strong is the argument on its sheer merits? It usually is not good optics to advance a patently weak tipsy coachman argument unless you have nothing else to say in the light of pretty clear error in the ruling sought to be reviewed. Even if it is a solid argument, lawyers for appellees often do not want to appear defensive about the ruling they are urging should be upheld.
Finally, if you decide these factors weigh in favor of raising the alternative ground, but you think there are colorable arguments, appellant might raise against a tipsy coachman affirmance, including the types of procedural issues discussed above, you might consider whether to anticipate and deal with these arguments in your answer brief. Otherwise, you run the risk of leaving these arguments unanswered, or having to devote time to them during oral argument.
However, with proper wordsmithing and advocacy, a tipsy coachman argument sometimes can serve to confirm the trial court actually reached the right result for two right reasons. A strong second “in all events” argument for the result reached by the trial court can give the appellate court comfort that further judicial time and effort should not be expended on the case. That may be reason enough for raising a strong tipsy coachman argument, even if there are hurdles to doing so. After all, the appellate court always has the option of the ubiquitous “PCA.”
When in doubt, put it on paper. That will help you assess it. Then, if possible, give it to someone to read who is cold to the case. Their reaction may be all the answer you need.
Finally, there are strategic decisions with respect to this rule even for counsel for the appellant. As the appellant, do you need or want to anticipate a potential tipsy coachman ground in your initial brief, or wait and see if it is actually advanced by the appellee and then deal with it in the reply and any oral argument. Depends.
On the one hand, if the alternative argument was vigorously argued below and presents a substantial issue, you probably will want to take it on in the initial brief. You will not then be forced to deal with it solely in the limited space of your reply brief. On the other hand, if this is instead merely an argument you were privately concerned about and it was never raised by opposing counsel, you almost certainly will want to wait and gamble that it will not be raised by them on appeal. Unless, perhaps, it is a point that the court itself will almost certainly recognize on its own.
This is necessarily a sense of touch judgment call that will depend on the particular case, issue, and argument. That is the best we can do for you.q
1 Special v. W. Boca Med. Ctr., 160 So. 3d 1251, 1254-55 (Fla. 2014).
2 As quoted in the opinion, the poem reads as follows: “‘The pupil of impulse, it forc’d him along, His conduct still right, with his argument wrong; Still aiming at honour, yet fearing to roam, The coachman was tipsy, the chariot drove home….’”
3 Lee, 63 Ga. at 346.
5 Carraway, 156 So. 2d at 497.
8 Vandergriff, 456 So. 2d at 466.
9 Holland, 458 So. 2d 81 at 85 n.3 (Cowart, J., dissenting).
10 See, e.g., Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011).
11 Radio Station WBQA, 731 So. 2d at 644 (emphasis added).
12 Levine, 837 So. 2d at 364.
13 Id. at 365.
17 Id. at 366.
19 Id. at 365 (citing Robertson, 829 So. 2d at 906).
20 Robertson, 829 So. 2d at 905-06.
21 Id. at 909.
22 Id. at 906.
23 Id. at 907-08.
24 Id. at 908 (quoting Robertson v. State, 780 So. 2d 106, 118 (Fla. 3d DCA 2001) (Sorondo, J. dissenting), quashed, 829 So. 2d 901 (Fla. 2002)).
27 Powell, 120 So. 3d at 590 (citing State v. Hankerson, 65 So. 3d 502 (Fla. 2011)).
28 Id. at 590-91 (citing Bueno v. Workman, 20 So. 3d 993, 998 (Fla. 4th DCA 2009)).
29 Id. at 590-93.
30 Id. at 591.
33 Id. at 592-93.
34 Id. at 593.
36 See, e.g., Muhammad v. State, 782 So. 2d 343, 359 (Fla. 2001) (A “trial court’s ruling on an evidentiary matter will be affirmed even if the trial court ruled for the wrong reasons, as long as the evidence or an alternative theory supports the ruling.”). Courts have similarly applied tipsy coachman to other types of discretionary decisions. See John Deere Constr. & Forestry Co v. Lorelys Elec. Corp., 69 So. 3d 1099 (Fla. 3d DCA 2011) (applying tipsy coachman to affirm trial court’s grant of motion for relief from judgment); Mount v. State, 97 So. 3d 951 (Fla. 5th DCA 2012) (applying tipsy coachman to affirm criminal sentence that denied credit for time served); cf. Wagner v. Strickland, 908 So. 2d 549, 551 n.1 (Fla. 1st DCA 2005) (declining to apply tipsy coachman to affirm trial court’s order dismissing complaint with prejudice, where dismissal order specified no ground and alternative discretionary ground of lack of timely service would likely have led to dismissal without prejudice).
37 Childers, 936 So. 2d at 592.
38 Id. at 593-94.
39 Id. at 593.
40 Childers v. State, 936 So. 2d 619, 637 (Fla. 1st DCA 2006) (opinion on motion for certification) (Kahn, C.J., dissenting).
43 Indeed, Judge Padovano, concurring in the denial of certification, stated, “[e]ven if the trial judge was mistaken to say that the evidence was not logically relevant, he would have been duty bound to hold that it was legally irrelevant and therefore inadmissible under [§]90.403.” Id. at 632 (Padovano, J. concurring).
44 Webster, 27 So. 3d at 806 (authors represented The Pantry, Inc., at appellate level (appellee/cross-appellant).
45 Id. at 809.
46 Id. at 809, n.12.
49 Loranger, 448 So. 2d at 1038 (per curiam opinion on rehearing).
52 Id. at 1038-39.
53 Id. at 1039.
54 Id.; see also Wells Fargo Bank, N.A., v. Gonzalez, 186 So 3d 1092, 1097-98 (Fla. 4th DCA 2016) (declining to apply tipsy coachman and affirm involuntary dismissal under Rule 1.420(b) as a summary judgment, where proceedings on motion for dismissal did not comply with summary judgment procedures) (authors represented Wells Fargo at appellate level in this case); Agudo, Pineiro & Kates P.A. v. Harbert Const. Co., 476 So. 2d 1311 (Fla. 3d DCA 1986) (citing Loranger in reversing a summary judgment where the statutory provision cited on appeal in support of the summary judgment had not been raised in the motion itself and in fact admittedly was “never raised below at all”); Hope v. Citizens Prop. Ins. Corp., 114 So. 3d 457, 459 (Fla. 3d DCA 2013) (citing Agudo and Loranger as precluding affirmance under the “right for the wrong reason” principle “where the issue was never raised in the motion for summary judgment”). More recently, the Third District in Chiu v. Wells Fargo Bank, N.A., 242 So. 3d 461 (Fla. 3d DCA 2018) (authors represented Wells Fargo at both trial (plaintiff) and appellate (appellee) levels), held that it was “fundamental error” for a trial court to grant a summary judgment without holding a hearing on the motion. Presumably then, that court would not affirm as “right for any reason” in those circumstances either.
SYLVIA H. WALBOLT is a shareholder of Carlton Fields in Tampa, is board certified in appellate law, a former president of the American Academy of Appellate Lawyers, and a fellow of the American College of Trial Lawyer.
E. KELLY BITTICK, JR. is a shareholder in the Tampa office of Carlton Fields, in the firm’s national trial practice group.
The authors thank Carlton Fields Summer Associate Janelle Elysee for her assistance in preparing this article.
This column is submitted on behalf of the Appellate Practice Section, Sarah Lahlou-Amine, chair, and Thomas Seider, editor.