by Ernesto J. Sanchez
Among the rules that Florida federal and state courts have in common for both civil and criminal jury trials is the rule mandating contemporaneous objections — to present an error to an appellate court, the complaining party must have timely raised the issue in the trial court.1 The failure to raise such an issue in the trial court will in turn change an appellate court’s standard of review to that of plain or fundamental error.2 Properly preserving any error at the trial court level, thus, remains essential given how plain or fundamental error only encompasses a very limited set of circumstances.3 In this respect, preservation requires that objections and arguments be made at the trial level with sufficient specificity and precision to enable an appellate court to determine that an issue presented to it is the same one ruled upon by the trial court.4
Practice before Florida federal and state courts may differ in a number of ways. Nonetheless, there are a number of rules governing the preservation of claims of error in civil actions that are quite similar, if not identical. The following will provide a helpful, but nonexhaustive, list of those rules that a busy civil practitioner with cases in both federal and state court can keep in mind.
• Pleadings — Pleadings provide the parties with notice of the issues underlying a dispute. Plaintiffs, at the outset of a suit, must consequently state their pleadings with sufficient particularity.5 This rule is meant to ensure that the defense is sufficiently prepared. So defendants should object to trying unpled issues or they risk being deemed to have tried them by consent.6
Defendants face similar obligations to be clear about their own case, especially with respect to affirmative defenses — facts or sets of facts that, if proven, will negate liability. More specifically, defendants may waive a number of affirmative defenses if they do not include them in responsive pleadings.7
The law governing pleadings, whether it is applied in a state or federal context, thus, places more obligations on defense counsel than it does on plaintiffs’ counsel. Defense counsel, unable to take the chance that an active judge will spot deficiencies in a plaintiff’s pleadings, must ensure that both their own pleadings and those of a plaintiff are sufficiently particular. At the very least, they should plead all affirmative defenses that will be waived if not identified at the outset of litigation, even though some judges may permit defendants to belatedly raise such defenses on rare occasions.
• Pretrial Stipulations — By providing a concise statement of facts that are admitted and need no proof, as well as issues of fact and law that remain to be litigated, a joint pretrial stipulation or pretrial order can provide a useful roadmap for a trial. Failure to include required items in a pretrial stipulation, then, can have serious consequences given how courts have held that such a stipulation is equivalent or superior to the pleadings in importance, and that claims and defenses can be waived if not identified in the stipulation.8 To minimize the risk of waiver, counsel should ensure that all claims and defenses are included in the pretrial stipulation and that opposing counsel has not included improper claims, defenses, or evidence in the stipulation.
• Motions in Limine — A motion in limine is “any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.”9 The exclusion of inadmissible or unfairly prejudicial evidence and arguments prior to trial, as opposed to objections upon their introduction, can help prevent an opponent from tainting a jury.
A trial court can address a motion in limine in a number of ways, each of which has its own implications for the movant. If the court grants a motion in limine, the movant should still make a contemporaneous objection to any evidence subsequently submitted in violation of the corresponding order in limine or a resulting claim of error will likely not be preserved for appellate review.10 If, however, the trial court reserves ruling on a motion in limine, neglects to issue a definitive ruling, or denies the motion, it is best for the movant, absent a very strong reason to do otherwise, to both renew the motion at trial and object to any related evidence that the opposing party introduces simply because a motion in limine by itself generally remains insufficient to preserve an issue for appeal.11
• Summary Judgment — A party does not waive claims or defenses by not seeking summary judgment. Nor does a motion for summary judgment preserve issues for appeal. Indeed, a court’s denial of a summary judgment motion merely constitutes an interlocutory order that does not finally dispose of the issues the motion raised. But moving for summary judgment remains advisable simply because a successful summary judgment motion can end a case. Even a partially successful summary judgment motion can narrow issues for trial and minimize time and resources required to resolve a case.
On appeal, the holder of a summary judgment will typically be free to defend the judgment on any ground the record makes manifest, and not just the trial judge’s reasoning.12 The party opposing the summary disposition of a dispute must raise all arguments against such a remedy in its brief before the trial court or risk waiver of arguments that were not raised.13
• Jury Selection — Though jury selection issues primarily arise in criminal cases, they remain critically important for civil practitioners to keep in mind.14 These issues generally concern challenges to a venire — a pool of prospective jurors — and challenges on voir dire while selecting individual jurors for trial.
A challenge to a venire, also known as a challenge to the array, is used to question the selection or drawing of prospective jurors and, unless otherwise ordered by the court, must be made in writing and decided before any individual prospective juror is examined.15 Such challenges are rare and usually entail claims that a venire has been selected on a racially discriminatory basis.16
Far more common are challenges exercised by oral motion during voir dire to individual prospective jurors for cause or challenges to peremptory strikes. To preserve any error stemming from the denial of a challenge for cause to a prospective juror, counsel must exhaust all peremptory challenges, request additional ones, and identify to the court the juror whom the party would have struck.17 Moreover, any claim of error on voir dire must be renewed before the jury is sworn in.18
• Evidentiary Issues — Parties frequently challenge the admission of unfairly prejudicial evidence and the exclusion of highly probative evidence that likely impacted a trial’s outcome. A party may claim error in a ruling to admit or exclude evidence where a substantial right is adversely affected.19 If a ruling admits what a party views as improper evidence, the party, on the record, must move to strike the evidence and state the specific grounds for the motion, unless the grounds were apparent from the context.20 The party may also seek a limiting instruction, asking the court to instruct the jury that it can consider the disputed evidence only for a limited purpose.
If the ruling excludes evidence, a party should inform the court of the evidence’s substance by a proffer, or offer of proof (e.g., relevant documents, summary of testimony, answers to questions about the evidence outside the jury’s presence), unless the substance was apparent from the context.21 When the trial court is hostile to the proffer, counsel should ensure that the refusal to accept the proffer appears on the record.
In all instances of alleged evidentiary error, once the court rules definitively on the record, either before or during trial, a party technically does not need to renew an objection or a proffer to preserve a claim of error.22 That said, there could be reasons to renew the objection. Consider, for example, that ambiguity might exist on whether the court issued a definitive ruling, while conditional or tentative decisions remain subject to reconsideration. A court might issue a ruling without prejudice to renewal at trial or even reconsider its ruling in response to changed facts or circumstances.
• Improper Arguments or Conduct — Aside from evidence, trial counsel can seek to exclude improper arguments or improper conduct of the court, opposing counsel, parties, or witnesses. To preserve allegations of improper arguments or conduct on appeal, a timely objection must be made to bring the trial court’s attention to the alleged error.23 To minimize damage stemming from such arguments or conduct, it is useful for trial counsel to also move for a mistrial and seek a curative instruction for the jury.24
• Motion for Judgment — A motion for judgment as a matter of law, also known as a motion for a directed verdict, allows a party to challenge the evidentiary basis for a claim or defense. To preserve any challenge to the sufficiency of the evidence at trial, counsel must first seek judgment as a matter of law before the case is submitted to the jury.25 Counsel should then renew the same motion, raising the same grounds as the pre-verdict motion, after the entry of judgment within the time allotted by applicable law.26 A party that fails to seek judgment as a matter of law prior to a case’s submission to a jury will be unable to mount a challenge to the verdict based on sufficiency of the evidence on appeal.27
• Jury Instructions — Jury-instruction issues arise on appeal in one of two ways: when the trial court gives an instruction to which one party objects, and when the trial court fails to give an instruction a party seeks. A party who objects to an instruction or the failure to give an instruction should do so on the record, stating distinctly the matter objected to and the grounds for the objection.28 An objection is timely if a party objects during the charge conference or, if a party was not informed of an instruction or action on a request before the charge conference, the party objects promptly after learning that the instruction will be, or has been, given or refused.29
• Verdict Forms — As with jury instructions, a party must timely object to a proposed verdict form or the failure to give a proposed verdict form to preserve the issue for review. Objections to the verdict form must be raised prior to the jury’s entry into deliberations.30
• Inconsistent Verdicts — To preserve an allegedly inconsistent verdict for appeal, a party must request that the issue be resubmitted to the jury before the court discharges the jury.31
• Renewed Motions and Motions for New Trials — A renewed motion for judgment as a matter of law, or renewed motion for a directed verdict, may be joined with a motion for a new trial.32 Indeed, to avoid potential waiver issues, it is useful to seek a new trial on any and all available grounds if one is placed in the position of having to renew a motion for judgment as a matter of law. In seeking a new trial along with a judgment as a matter of law, one will not only present the strongest possible case on appeal, but also raise such issues as challenges to the court’s evidentiary rulings and jury instructions that cannot be raised in a motion for judgment as a matter of law alone. To raise a specific error in a new trial motion, the movant must typically first raise a contemporaneous objection at trial or move for a mistrial on those grounds.33
In both federal and state courts, the consequence of overlooking common preservation issues at the trial level, if a case ends up in an appellate court, will, again, be the dreaded plain or fundamental error standard of review. Instead of looking at a case de novo or for an abuse of discretion by the trial court, an appellate court will merely determine whether a claimed error was really an error that was plain, obvious, and prejudicial in affecting substantial rights and for which review is needed to prevent a miscarriage of justice.34 This standard is very unlikely to result in a reversal of trial court rulings and will arguably make the appellate process a useless and futile endeavor. So even though trial lawyers will and must be focused on winning and ending a dispute at the trial level, the importance of laying the groundwork for a strong appeal if trial-level proceedings have an unfavorable outcome cannot be understated.
But the task of grasping both federal and state issue preservation jurisprudence need not daunt the busy civil practitioner with cases in both federal and state court. Rulings on specific preservation issues by the U.S. Court of Appeals for the 11th Circuit and Florida state appellate courts may have their own unique nuances. At a basic level, however, the most important rules on issue preservation are very similar, if not identical. Thus, keeping the frameworks set forth above in mind, then, should help trial counsel in Florida courts — state and federal — develop a crucial appellate backstop should a case be unsuccessful.
1 See, e.g., Puckett v. United States, 556 U.S. 129, 134 (2009); Aills v. Boemi, 29 So. 3d 1105, 1108 (2010).
2 See Bates v. Secretary, Fla. Dep’t of Corrections, 768 F.3d 1278, 1297 (11th Cir. 2014); Aills, 29 So. 3d at 1119.
3 See Brough v. Imperial Sterling Ltd., 297 F.3d 1172, 1179 (11th Cir. 2002) (To overturn the district court on plain error review, “there must (1) be error, (2) that is plain, (3) that affects the substantial rights of the party, and (4) that seriously affects the fairness, integrity, or public reputation of a judicial proceeding.”); Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970) (“‘Fundamental error,’ which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action. The Appellate Court should exercise its discretion under the doctrine of fundamental error very guardedly.”).
4 See Ferguson v. Secretary for Dep’t of Corrections, 580 F.3d 1183, 1212-13 (11th Cir. 2009); Aills, 29 So. 3d at 1108-09.
5 See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) (Plaintiffs must include enough facts in their complaint to make it plausible — not merely possible or conceivable — that they will be able to prove facts to support their claims.); Arky, Freed, Stearns, Watson, Greer, Weaver & Harris v. Bowmar Instrument Corp., 537 So. 2d 561, 563 (Fla. 1988) (mandating particularity in pleadings); see also Atkins v. McInteer, 470 F.3d 1350, 1358 (11th Cir. 2006) (“particularity requirement” for pleading fraud means that a plaintiff must plead facts as to time, place, and substance of the defendant’s alleged fraud, specifically the details of the defendant’s allegedly fraudulent acts, when they occurred, and who engaged in them).
6 See Fed. R. Civ. P. 15(b)(2); U.S. for Use and Benefit of Seminole Sheet Metal Co. v. SCI, Inc., 828 F.2d 671, 677 (11th Cir. 1987) (“Failure to object to evidence raising issues outside of the pleadings constitutes implied consent as long as the evidence is not relevant to issues already within the pleadings.”); Fla. R. Civ. P. 1.190(b); Dep’t of Revenue of State of Fla. v. Vanjaria Enterprises, Inc., 675 So. 2d 252, 254 (Fla. 5th DCA 1996) (issue is tried by consent where parties fail to object to introduction of evidence on issue).
7 See, e.g., Fed. R. Civ. P. 12(g)(2), (h) (A party waives the defenses of lack of personal jurisdiction, improper venue, insufficient process, and insufficient service of process by failing to raise them by motion or include them in a responsive pleading or in an amendment to pleadings allowed by the court; a party that makes a motion under Rule 12 must not make another motion under this rule raising a defense or objection that was available to a party but omitted from an earlier motion.); Fla. R. Civ. P. 1.140(h) (Save for failure to state a cause of action or legal defense, join an indispensable party, or lack of subject matter jurisdiction, all defenses not raised by motion or responsive pleading are waived.).
8 See, e.g., Miles v. Tenn. River Pulp and Paper Co., 862 F.2d 1525, 1529 (11th Cir. 1989) (district court properly refused to permit defendant to present evidence on a defense not listed in the pretrial order); Esch v. Forster, 168 So. 229, 236 (1936) (“A stipulation that limits the issues to be tried amounts to a binding waiver and elimination of all issues not included.”).
9 Luce v. United States, 469 U.S. 38, 40 n.2 (1984).
10 See Frederick v. Kirby Tankships, Inc., 205 F.3d 1277, 1285 (11th Cir. 2000); Coffee v. State, 699 So. 2d 299, 301 (Fla. 2d DCA 1997); but see Fla. Stat. §90.104 (“If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”).
11 See Judd v. Rodman, 105 F.3d 1339, 1342 (11th Cir. 1997) (“We previously have held that, as a general proposition, an overruled motion in limine does not preserve a party’s objection for purposes of appeal; a timely objection at trial is required. Under certain circumstances, however, a motion in limine may be adequate to preserve an error for appeal if a good reason exists not to object at trial.”) (citation omitted); Esty v. State, 642 So. 2d 1074, 1078 (Fla. 1994) (“[E]ven if a prior motion in limine has been denied, the failure to object at the time [corresponding] evidence is introduced waives the issue for appellate review.”) (internal quotation marks and citation omitted); but see Fla. Stat. §90.104 (“If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”).
12 Jaffke v. Dunham, 352 U.S. 280, 281 (1957); Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 645 (Fla. 1999).
13 See Case v. Eslinger, 555 F.3d 1317, 1329 (11th Cir. 2009); Dober v. Worrell, 401 So. 2d 1322, 1324 (Fla. 1981).
14 For example, in a personal injury action that raised the issue of whether civil litigants, like criminal litigants, had the affirmative duty to renew all of their voir dire objections immediately prior to the jury being sworn to preserve the objections for appellate review, the Florida Third District Court of Appeal stated: “We see no reason why civil litigants who in most instances have only property or monetary interests at stake should not shoulder the same burden of preserving their claimed voir dire error as do criminal defendants whose very liberty interests are at stake. Indeed, it would be a manifest injustice for us to conclude otherwise.” Wallace v. Holiday Isle Resort and Marina, Inc., 706 So. 2d 346, 347 (Fla. 3d DCA 1998).
15 See generally 28 U.S.C. §1867 (Before the voir dire examination begins, or within seven days after the challenging party discovered or could have discovered grounds for challenging a venire, whichever is earlier, a party may file a motion for challenging a venire pursuant to statutorily specified procedures.); Chance v. State, 155 So. 663, 664 (Fla. 1934) (challenge to the array goes to illegalities in selecting names of persons for jury service or in drawing or empaneling jury — to some matter by which prospective juror pool was formed).
16 Cf., e.g., 28 U.S.C. §1862 (prohibiting discrimination on the basis of race, color, religion, gender, national origin, or economic status in selection of prospective grand or petit jurors); Strauder v. West Virginia, 100 U.S. 303, 310 (1880) (holding that a state denies a defendant equal protection when it purposefully excludes all members of the defendant’s race from being eligible to serve as jurors), abrogated on other grounds by Taylor v. Louisiana, 419 U.S. 522 (1975).
17 See United States v. Davis, 854 F.3d 1276, 1296-97 (11th Cir. 2017); Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990).
18 See Philmore v. State, 820 So. 2d 919, 930 (Fla. 2002) (holding that defendant failed to preserve challenge to peremptory strike for review because he did not renew his objection before the jury was sworn). The U.S. Court of Appeals for the 11th Circuit does not appear to have ruled on the question of whether a party fails to preserve a claim of error on voir dire in failing to renew an objection before the jury is sworn. Nonetheless, the court indirectly confronted the question in the 2009 habeas corpus case of Philmore v. McNeil, 575 F.3d 1251 (11th Cir. 2009), where the appellant claimed that the state trial court had erred in granting the state’s peremptory strike of an African-American juror and that his counsel did not effectively challenge the strike in failing to renew an objection to the strike before the jury was sworn in. Id. at 1259. The court ruled that it could not review the habeas claim on the merits because the Florida Supreme Court had determined that the appellant had failed to comply with an “independent and adequate procedural state rule that is regularly followed” — a rule holding that claims of error on voir dire had to be renewed prior to the swearing in of the jury. Id. at 1260. The court cited to this procedural bar doctrine without disapproval. Id.
19 Fed. R. Evid. 103(a); Fla. Stat. §90.104(1).
20 Fed. R. Evid. 103(a)(1); Fla. Stat. §90.104(1)(a).
21 Fed. R. Evid. 103(a)(2); Fla. Stat. §90.104(1)(b).
22 Fed. R. Evid. 103(b); Fla. Stat. §90.104(1).
23 See, e.g., Dempsey v. Mac Towing, Inc., 876 F.2d 1538, 1540 n.1 (11th Cir. 1989); Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908, 910 (Fla. 1985).
24 Cf., id.
25 See Fed. R. Civ. P. 50(a)(2) (allowing parties to move for judgment as a matter of law any time before the case is submitted to the jury); Fla. R. Civ. P. 1.480(a) (provides that a party may move for a directed verdict at the close of evidence offered by the adverse party); Fla. R. Civ. P. 1.480(b) (permits parties to renew motions for judgment as a matter of law within 28 days after the verdict).
26 See Fed. R. Civ. P. 50(b); Fla. R. Civ. P. 1.480(b).
27 Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 395, 404-05 (2006); Prime Motor Inns, Inc. v. Waltman, 480 So. 2d 88, 90 (Fla. 1985).
28 Fed. R. Civ. P. 51(c)(1); Universal Ins. Co. v. Warfel, 82 So. 3d 47, 64 (Fla. 2012).
29 See Fed. R. Civ. P. 52(c)(2); cf. also Fla. R. Civ. P. 1.470(b). Note that the U.S. Court of Appeals for the 11th Circuit has recognized two exceptions to the rule that a party must object before the jury retires: where the party has previously made its position known to the court and it is clear that a further objection would have been unavailing, and where the error is so fundamental that it would result in a miscarriage of justice if a new trial were not granted. Bendiburg v. Dempsey, 19 F.3d 557, 562 (11th Cir. 1994).
30 Scheurenbrand v. Wood Gundy Corp., 8 F.3d 1547, 1549 (11th Cir. 1993); Wald v. Grainger, 64 So. 3d 1201, 1207-08 (Fla. 2011).
31 Coralluzzo v. Educ. Mgmt. Corp., 86 F.3d 185, 186 (11th Cir. 1996); Coba v. Tricam Industries, Inc., 164 So. 3d 637, 645 (Fla. 2015).
32 Fed. R. Civ. P. 50(b); Fla. R. Civ. P. 1.480(c).
33 See, e.g., Proctor v. Flour Enterprises, Inc., 494 F.3d 1337, 1349-50 (11th Cir. 2007); Companioni v. City of Tampa, 51 So. 3d 452, 456 (Fla. 2010).
34 See note 3.
ERNESTO J. SANCHEZ is a solo practitioner in Miami who concentrates his practice on general appellate advocacy and international dispute resolution. He is a graduate of the University of Pennsylvania Law School.
This column is submitted on behalf of the Appellate Practice Section, Chris William Altenbernd, chair, and Thomas Seider, editor.