by James A. Herb and Jay L. Kauffman
If a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”1 This is a simple statement of the “tipsy coachman” rule or doctrine. This doctrine, which has become a stable part of appellate practice, decreases the likelihood that an appellant will fare well in an appeal. Application of the doctrine, nevertheless, is not nearly so pedestrian.
The Tipsy Coachman Doctrine
The first legal reference to the tipsy coachman appeared in the 1879 opinion of the Georgia Supreme Court in Lee v. Porter, 63 Ga. 345 (1879), which states the rationale underlying the doctrine:
It may be that we would draw very different inferences [than those drawn by the trial judge], and these differences might go to uphold the judgment; for many steps in the reasoning of the court below might be defective, and still its ultimate conclusion be correct. It 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. 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.2
The opinion proceeds to quote the following passage from Oliver Goldsmith’s 1774 poem, “Retaliation”:
“The pupil of impulse, it forc’d him along,
“His conduct still right, with his
“Still aiming at honour, yet fearing
“The coachman was tipsy, the char- iot drove home[.]”3
Development of the Doctrine in Florida “[A] rose [b]y any other name . . . .”4
In 1857, the Florida Supreme Court stated: “This Court will always gladly avail itself of the light which may be furnished by the reasoning of the Court below, but when it comes to decide, it has to do only with the conclusions as they are embodied in the judgment or decree — the logic of the [j]udge is beyond its control.”5
Over a stretch of succeeding years, the court stated this principle in various ways: “If the ruling is correct, it will not be disturbed because the court may have given a wrong or insufficient reason for its rendition.”6 “A correct ruling of the trial court will not be disturbed because of erroneous or wrong reasons which may have been given therefor, as it is with the ruling itself, and not with the reasons given therefor, with which an appellate court is concerned.”7 “It is the ruling itself, and not the reasons therefor, which determines the correctness of a court’s action.”8
The Tipsy Coachman Appears in Florida
Although the Florida Supreme Court had recognized the principles that would become the tipsy coachman doctrine as early as 1857, the hackney quotation from Goldsmith did not appear in a Florida appellate opinion until the 1963 Supreme Court case of Carraway v. Armour & Co., 156 So. 2d 494, 497 (Fla. 1963).9 The use of the colorful moniker “tipsy coachman” was first documented by Judge Cowart in his dissent to a 1984 opinion from the Fifth District Court of Appeal,10 and the phrase has subsequently appeared in more than 80 Florida appellate opinions. Aside from Florida, however, the phrase “tipsy coachman rule” or “tipsy coachman doctrine” exists in only a handful of opinions in Georgia and Oregon.11
This is not to say that the “tipsy coachman doctrine” — that is, the affirming of a decision if it is right, even if for the wrong reason — is not applied in other states. It generally is. Similarly, many Florida appellate opinions have applied the doctrine without using the phrase “tipsy coachman doctrine” by using the phrase “right for the wrong reason,”12 or by simply citing to a case which applies the doctrine.13 Florida appellate courts started using the phrase “right for wrong reason” in 197914 and have used the phrase in more than 70 opinions since.
The tipsy coachman doctrine has become an “elementary” principle of appellate law.15 The doctrine is based on the premise that the record is the “roadmap” for both the trial and appellate courts, and different routes can lead to the same destination.16 The point of this article is to identify the facts and circumstances — or twists and turns — identified in Florida appellate opinions through which the coachman must navigate in order to arrive home.
Florida Supreme Court Restates the Rule of the Road
The Florida Supreme Court issued its first opinion using the phrase “tipsy coachman” in Dade County School Board v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999):
In some circumstances, even though a trial court’s ruling is based on improper reasoning, the ruling will be upheld if there is any theory or principle of law in the record which would support the ruling. In In re Estate of Yohn, this Court stated:
“It is elementary that the theories or reasons assigned by the lower court as its basis for the order or judgment appealed from, although sometimes helpful, are not in any way controlling on appeal and the [a]ppellate [c]ourt will make its own determination as to the correctness of the decision of the lower court, regardless of the reasons or theories assigned therefor.”
238 So. 2d 290, 295 (Fla. 1970). Stated another way, if a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record. . . . The Fourth District Court of Appeal has referred to this principle as the “tipsy coachman” rule.17
The Dade County opinion explains how the doctrine is available to assist the proactive appellee seeking to parlay a trial court victory into an appellate affirmance. In arguing for the affirmance of a judgment, the appellee is not limited to legal arguments expressly asserted in the trial court, but rather can present any argument supported by the record.18 The doctrine is an exception to the general appellate principle that absent fundamental error, an appellate court will not consider an issue raised for the first time on appeal.19
Proceed With Caution
There are at least two dangers associated with the use of the tipsy coachman doctrine, as noted by the dissenting opinion in Delissio v. Delissio, 821 So. 2d 350, 354 (Fla. 1st DCA 2002) (Browning, J., dissenting). First, the application of the doctrine gives the impression that the court is part of the adversarial process, and not a neutral judicial arbitrator. Second, if the case is decided on an issue unnoticed to the parties and not argued by the parties, there may be a denial of due process.20 Stated another way, due process rides shotgun with the coachman.
The dangers Judge Browning recognized in Delissio help to explain those district court cases that refused to apply the doctrine to affirm the trial court, and instead shuttled the matter back to the trial court. In State v. Lena, 819 So. 2d 919, 921 (Fla. 3d DCA 2002), the doctrine was not applied when the trial court considered only one section of the evidence code and did not entertain argument on the admissibility of the evidence under any other theories because the record was insufficient to determine whether the evidence was relevant and proper under alternative sections of the evidence code. The Fourth District refused to apply the doctrine in Amorello v. Tauck, 817 So. 2d 880, 882 n.2 (Fla. 4th DCA 2002), to affirm a dismissal for lack of prosecution, because the trial court failed to rule on a second motion to dismiss for lack of prosecution or to make any findings regarding the time periods alleged within that subsequent motion. While the doctrine can be applied to uphold a judgment on another basis on appeal, it does not apply to increase the amount of the judgment based upon a claim that has never been pled.21 The doctrine may not be applied in a summary judgment proceeding when the issue was never raised in the motion for summary judgment.22 These cases illustrate that “the ‘Tipsy Coachman’ doctrine does not rescue parties from their own inattention to important legal detail.”23
The Key to the Coach
In 2002, the Florida Supreme Court acknowledged the developing precedent regarding the exceptions to the doctrine in Robertson v. State, 829 So. 2d 901, 906-907 (Fla. 2002). The court stated: “The key to the application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court.” Robertson, thus, approved the First District’s opinion in State Department of Revenue ex rel. Rochell v. Morris, 736 So. 2d 41, 42 (Fla. 1st DCA 1999), which refused to affirm on a ground not argued to the trial court, reasoning that the record did not reflect a sufficient evidentiary basis to permit a determination as to whether certain defenses were applicable.24
In State Farm Fire & Casualty Co. v. Levine, 837 So. 2d 363, 365 (Fla. 2002), the Florida Supreme Court again addressed the “key” to the application of the doctrine and concluded the doctrine did not apply. Levine involved a motion for new trial in an automobile negligence case based on a juror’s failure to disclose information during voir dire about her involvement in an auto accident. The Florida Supreme Court concluded it could not affirm the trial court based upon the alternative theory offered by the appellee because the record did not provide an adequate basis to reach a conclusion regarding whether the undisclosed information was relevant and material to jury service in the case. Although the trial court had heard some argument pertaining to materiality, that discussion was framed in terms of prejudice to the defendant (which was not a relevant factor), and not in terms of materiality. The lack of a developed record on the issues, including a lack of evidence regarding the materiality of the prior accident on the juror’s ability to serve, coupled with the confusion regarding prejudice versus materiality, led the Florida Supreme Court to remand the case to the trial court for further consideration of the proper principles.
No Free Rein for the Coachman
The tipsy coachman doctrine, by its nature, applies only to affirm a trial court decision. Can the doctrine somehow be applied to reverse a lower court decision? In her dissent in State v. Baez, 894 So. 2d 115, 120-21 (Fla. 2004), under the heading “Giving the ‘Tipsy Coachman’ Free Rein,” Chief Justice Pariente comments:
Under the “tipsy coachman” rule, an appellate court may affirm a lower court ruling for any reason supported by the record, see Robertson v. State, 829 So. 2d 901, 907 (Fla. 2002), but I can find no authority for using the rule to quash or reverse a lower court decision on a theory not argued by the party challenging the ruling in the reviewing court. Cf. Jenkins v. State, 747 So. 2d 997, 999 (Fla. 5th DCA 1999) (declining to reverse trial court on issue not raised on appeal). The flawed decision reached in this manner illustrates the inadvisability of innovating grounds for quashing a lower court decision.25
The Fourth District similarly observed that the analysis set forth in its opinion in Florida Patient’s Compensation Fund v. St. Paul Fire & Marine Insurance Co., 535 So. 2d 335, 338 (Fla. 4th DCA 1988), approved, 559 So. 2d 195 (Fla. 1990), was “largely not to be found in the submitted briefs or in the record. Were we reversing this cause, we might be subject to criticism for applying a theory not addressed. However, since the result remains the same, the trial judge was right for the wrong reason. Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).”26 The lack of free rein means, in a sense, that the coachman drives only on a one-way street.
Driven to Discretion
The application of the doctrine has also been called into question in the context of discretionary decisions made by the trial court and raised as error on appeal. In one opinion, the First District chose not to apply the tipsy coachman doctrine to affirm a trial court order dismissing a complaint because the record and briefs failed to reflect whether the trial court was inclined to exercise its discretion to dismiss under Florida Rule of Civil Procedure 1.070(j) (dealing with the time limit for service of the initial process and pleading). “As the matter is one left to the trial court’s discretion, we cannot state definitively that the trial court reached ‘the right result, but for the wrong reasons.’”27 Other Florida appellate courts have yet to explicitly weigh in on the issue of exercise of discretion and the doctrine.
Transporting the Rich or Famous
The coachman has appeared in some highly publicized cases in the past few years, including the Florida Supreme Court’s decision regarding the 2000 presidential election.28 In perhaps the most famous, or infamous, case involving application of the tipsy coachman doctrine, the Fourth District affirmed Broward County Circuit Judge Larry Seidlin29 in the case involving the right to determine the disposition of the body of Anna Nicole Smith.30 Although the subject of much public nagging, Judge Seidlin’s handling of the trial was vindicated by his expansive approach to the matter. He allowed a breadth of evidence and argument, and ultimately made alternative findings and rulings — all of which allowed the matter to be finally concluded by the Fourth District on the basis of the tipsy coachman doctrine.
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.
Various questions remain unanswered. For example, will 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.
1 Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999).
2 Lee v. Porter, 63 Ga. 345, 346 (Ga. 1879).
3 Id.; Oliver Goldsmith, Retaliation, lines 45-48, The Literature Network, .
4 William Shakespeare, Romeo and Juliet, act 2, sc. 2.
5 Smith v. Croom, 7 Fla. 180, 195-96 (1857).
6 Hoopes v. Crane, 47 So. 992, 996 (Fla. 1908).
7 Roe v. Roe, 117 So. 108, 110 (Fla. 1928) (quoting the court’s syllabus in Warren v. Warren, 63 So. 726 (Fla. 1913)).
8 Baylarian v. Tunnicliffe, 141 So. 609, 612 (Fla. 1932). See also Martin County v. Johnson, 570 So. 2d 1378, 1381 (Fla. 4th D.C.A. 1990) (providing that even if a final judgment has “unfortunate language” that misstates the law, the appellate court will affirm if the erroneous language “does not vitiate the remaining language of the final judgment.”).
9 Citing Lee v. Porter, 63 Ga. 345 (Ga. 1879).
10 Holland v. Holland, 458 So. 2d 81, 85 n.3 (Fla. 5th D.C.A. 1984) (Cowart, J., dissenting).
11 More than 70 Oregon opinions use the phrase “right for the wrong reason” doctrine or principle. The Oregon Supreme Court has developed a more detailed statement of the doctrine than Florida. It is unclear whether this more detailed statement results in a different application from Florida’s version of the doctrine. Compare Florida’s statement of the doctrine as set forth at the beginning of this article with the following quotation from Outdoor Media Dimensions Inc. v. State, 20 P.3d 180, 195-196 (Or. 2001):
“As developed by this court’s decisions, the “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. The first condition is that, if the question presented is not purely one of law, then the evidentiary record must be sufficient to support the proffered alternative basis for affirmance. That requires: 1) that the facts of record be sufficient to support the alternative basis for affirmance; 2) that the trial court’s ruling be consistent with the view of the evidence under the alternative basis for affirmance; and 3) that the record materially be the same one that would have been developed had the prevailing party raised the alternative basis for affirmance below. In other words, even if the record contains evidence sufficient to support an alternative basis for affirmance, if the losing party might have created a different record below had the prevailing party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance. The second condition is that the decision of the lower court must be correct for a reason other than that upon which the lower court relied. Third, and finally, the reasons for the lower court’s decision must be either (a) erroneous or (b) in the reviewing court’s estimation, unnecessary in light of the alternative basis for affirmance.”
12 See, e.g., TransPetrol, Ltd. v. Radulovic, 764 So. 2d 878, 880 (Fla. 4th D.C.A. 2000).
13 See, e.g., James W. Windham Builders, Inc. v. Overloop, 951 So. 2d 40, 43 (Fla. 1st D.C.A. 2007).
14 Select Builders of Fla., Inc. v. Wong, 367 So. 2d 1089, 1091 (Fla. 3d D.C.A. 1979).
15 In re Estate of Yohn, 238 So. 2d 290, 295 (Fla. 1970).
16 Indus. Builders, Inc. v. Heritage Ins. Co. of Am., 416 So. 2d 1244, 1246 (Fla. 4th D.C.A. 1982) (“If the record, acting as it does for the trial and reviewing courts as a road map, requires our taking a route different from that taken by the trial court but leads us to the same destination, reversal is out of the question.”).
17 Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999).
18 Id. at 645. Subsequently in Malu v. Security National Insurance Co., 898 So. 2d 69, 73 (Fla. 2005), the Florida Supreme Court held that the Fourth District properly applied the tipsy coachman rule, even though the alternate theory of recovery was not raised in the trial court, stating that “a party who is content with the judgment below need not assign error in order to support that judgment and is not limited in the appellate courts to the theories of recovery stated by the trial court” (quoting MacNeill v. O’Neal, 238 So. 2d 614, 615 (Fla. 1970)).
19 Keech v. Yousef, 815 So. 2d 718, 719 (Fla. 5th D.C.A. 2002) (“In the absence of fundamental error, an appellate court will not consider an issue that has been raised for the first time on appeal. Farinas v. State, 569 So. 2d 425, 429 (Fla.1990).”). One opinion calls this the “raise-it-or-waive-it rule.” Fleischer v. Fleischer, 586 So. 2d 1253, 1254 (Fla. 4th D.C.A. 1991).
20 Delissio v. Delissio, 821 So. 2d 350, 355 (Fla. 1st D.C.A. 2002) (Browning, J., dissenting). Judge Browning reiterated his view in his dissenting opinion in Adams v. Shiver, 890 So. 2d 1199, 1202 (Fla. 1st D.C.A. 2005) (Browning, J., dissenting). The Third District adopted the reasoning of Judge Browning’s dissenting opinion in E.K. v. Department of Children & Family Services, 948 So. 2d 54, 57 (Fla. 3d D.C.A. 2007).
21 Allstate Ins. Co. v. Glassman, 729 So. 2d 485, 487 (Fla. 3d D.C.A. 1999).
22 See, e.g., White v. Whiddon, 670 So. 2d 131, 133-34 n.1 (Fla. 1st D.C.A. 1996).
23 E.K. v. Dep’t of Children & Family Servs., 948 So. 2d 54, 57 (Fla. 3d D.C.A. 2007).
24 Robertson v. State, 829 So. 2d 901, 907 (Fla. 2002).
25 State v. Baez, 894 So. 2d 115, 121 (Fla. 2004) (Pariente, C.J., dissenting).
26 Fla. Patient’s Comp. Fund v. St. Paul Fire & Marine Ins. Co., 535 So. 2d 335, 338 (Fla. 4th D.C.A. 1988), approved, 559 So. 2d 195 (Fla. 1990). Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979), holds: “Even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it. However, a misconception by the trial judge of a controlling principle of law can constitute grounds for reversal.” Id. at 1152 (citations omitted).
27 Wagner v. Strickland, 908 So. 2d 549, 551, n.1 (Fla. 1st D.C.A. 2005) (quoting Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999)).
28 Gore v. Harris, 772 So. 2d 1243, 1263 (Fla. 2000), rev’d, Bush v. Gore, 531 U.S. 98 (2000) (Wells, J., dissenting) (citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638, 644-45 (Fla. 1999)).
29 It has been suggested that the tipsy coachman doctrine should now be known as the “drunken cabbie” doctrine. Tubbs v. State, 897 So. 2d 520, 523 (Fla. 3d D.C.A. 2005).
30 Arthur v. Milstein, 949 So. 2d 1163, 1166 (Fla. 4th D.C.A. 2007).
James A. Herb and Jay L. Kauffman practice probate, trust, and guardianship litigation, and related appellate law in Boca Raton in the firm of Herb & Kauffman, P.A. They are co-authors of the chapter on “Appellate Practice in Probate” in Litigation Under the Florida Probate Code (Fla. Bar 6th ed. 2006). Mr. Herb is also a charter member of the Appellate Practice Section.
This column is submitted on behalf of the Appellate Practice Section, Steven Brannock, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.