The Florida Bar

Florida Bar Journal

Don’t Waive Your Appeal: A Guide to Preserving Trial Error

Appellate Practice

Any attorney dreads receiving an adverse opinion from the appellate court with the phrase, “This issue was waived below.” Losing is disappointing, but even more so when the appellate court did not address the merits of the otherwise compelling argument on appeal. Familiarizing yourself with the various ways of preserving error is crucial to avoiding waiving your argument on appeal. This article provides a brief overview of methods of preserving trial error — at each stage of a trial proceeding — for appellate review.

Motions in Limine
F.S. §90.104(1)(b), as amended in 2003, provides that “[i]f 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.” The party must secure a ruling from the trial court in order to preserve the issue for review.1 The order granting the motion in limine or the transcript of the hearing on the motion must clearly indicate what specific evidence is being excluded. As the Second District held in SourceTrack, LLC v. Ariba, Inc., 958 So. 2d 523, 526 (Fla. 2d DCA 2007), “absent a transcript of the hearing on the motion in limine, we must affirm a ruling that is not fundamentally erroneous on its face.”

If the trial court makes a tentative ruling or defers ruling on the motion in limine, the non-prevailing party must either proffer the excluded evidence2 or contemporaneously object to the admitted evidence at trial3 in order to preserve the claimed evidentiary error for appellate review. During trial, if a party violates a definitive ruling on a motion in limine, the opposing party is still required to make a contemporaneous objection. If the objection is sustained, the party must then move for a mistrial to preserve the error for appeal.4

Jury Selection Issues
For an appellate court to consider whether the trial court erred in refusing to strike a potential juror for cause, the following three steps must be taken: 1) Exhaust all remaining peremptory challenges; 2) request additional peremptory challenges that are denied; and 3) identify specific jurors whom the party would have excused if possible, but who ultimately served on the panel.5 The specific basis for challenging the juror in question must be raised during voir dire; if not, it is not preserved for appeal.6

The preservation of a challenge to a prospective juror also requires a party to make more than one objection. “When a trial court denies or grants a peremptory challenge, the objecting party must renew and reserve the objection before the jury is sworn.”7 If the party fails to renew the objection prior to the jury being sworn, an appellate court will generally presume that the objecting party has abandoned its prior objection and is satisfied with the selected jury.8 Renewal of an objection, however, may be unnecessary if the initial objection is made close to the end of jury selection and several minutes prior to the jury being sworn.9

The Contemporaneous Objection Rule
Proper preservation of error during a trial generally requires three steps. First, the party must make a timely, contemporaneous objection at the time of the alleged error.10 Second, the party must state a legal ground for that objection. Third, for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection below.11 & #x201c;While no magic words are required to make a proper objection, the concern articulated in the objection must be sufficiently specific to inform the court of the perceived error.”12

Motions for Directed Verdict
Prior to the 2010 amendment to Fla. R. Civ. P. 1.480(b), a defendant was required to move for a directed verdict at the close of the plaintiff’s case, then to renew the motion again at the close of all the evidence.13 A defendant who failed to renew his or her motion for directed verdict at the close of all of the evidence was precluded from challenging the sufficiency of the evidence presented at trial on appeal.14 Following the 2010 amendment, however, it is no longer necessary to renew a motion for directed verdict at the close of all of the evidence to preserve the issue for appeal.15

Nonetheless, a defendant is still required to file a post-verdict motion for judgment in accordance with the prior motion for directed verdict to preserve the issue for appellate review.16 The motion for judgment in accordance with the motion for directed verdict must be served within 10 days after the verdict (or if a verdict is not returned, after discharge of the jury).17 The failure to serve the motion within this 10-day period constitutes a waiver.18 The appellate court will recognize an exception when “the insufficiency of the evidence constitutes plain error apparent on the face of the record which if not noticed will result in a manifest miscarriage of justice.”19 If a party mislabels the motion for directed verdict as a motion for new trial, an appellate court will look to the substance of the motion, not the label, in determining whether the issue is preserved.20

A co-defendant must object to a trial court’s decision to grant a directed verdict in favor of the other defendant in order to preserve the right to challenge that directed verdict on appeal.21 This is because a co-defendant must object or join in the objection of the other defendant to preserve the issue for appeal.22

Closing Arguments
To preserve for appellate review an issue relating to an alleged improper comment, a party must object to the comment when it is made and obtain a ruling on the objection.23 If a party objects to the comment, but fails to secure a ruling from the trial judge, the issue is waived unless the judge deliberately and patently refuses to rule on the objection.24 If the trial judge sustains the objection, the objecting party must make a timely request for a curative instruction or a motion for mistrial to preserve the issue for appellate review.25 The motion for mistrial must be made before the jury retires to deliberate.26

If a party fails to properly preserve its objection to improper comments, the comments will be subject to fundamental error analysis under Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000).27 Murphy requires the party to show that the comments were 1) improper, 2) harmful, 3) incurable, and 4) so damaging to the fairness of the trial that the public’s interest in our system of justice requires a new trial.28 Comments that appeal to racial, ethnic, or religious prejudices will fall into the last part of this test.29 As the Murphy court recognized, very few cases will satisfy this stringent four-part test for obtaining a new trial.30

Motions for Mistrial
A motion for mistrial must be made at the time of the improper remark or the inadmissible evidence.31 The motion need not be made at the exact moment the jury is exposed to the objectionable comment or inadmissible evidence.32 As the Florida Supreme Court observed in Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908, 911 (Fla. 1985), “[W]e do not impose a strict rule requiring that a motion for mistrial be made in the next breath following the objection to the remark.”

A motion for mistrial, coupled with a request that the trial court reserve ruling until the jury returns a verdict, is sufficient to preserve the issue for appellate review.33 A party can waive its right to a new trial, however, by withdrawing his or her motion for mistrial. In Publix Super Markets, Inc. v. Griffin, 837 So. 2d 1139, 1141 (Fla. 2d DCA 2003), the Second District Court of Appeal held that the trial court had abused its discretion in granting the appellees’ motion for a new trial because the appellees had moved for a mistrial, but had then withdrawn their motion, stating that they wished to resist a mistrial and preferred a curative instruction, which was then given.

Jury Instructions
Fla. R. Civ. P. 1.470(b) expressly states that a party cannot assign as error the failure to give a jury instruction unless the party requests the jury instruction at the charge conference.34 Merely filing the requested jury instruction is insufficient; the requested instruction must be brought to the attention of the trial court.35 If the party submits the proposed instruction in writing, and the trial court rejects the instruction, the issue is preserved for appellate review.36 If the desired instruction is not in writing, an appellate court will refuse to consider whether the trial court erred in failing to give the instruction.37

The procedure for preserving an objection to an opponent’s proposed jury instruction is different from that necessary to preserve the court’s refusal to give a requested instruction. Rule 1.470(b) provides that a party must make a contemporaneous objection to the jury instruction to preserve the issue for appeal. To properly preserve the objection, “[i]t is necessary that a distinct and specific objection be made. A general objection is not sufficient.”38

Inconsistent Verdicts and Excessive or Inadequate Verdicts
The difference between an inconsistent and inadequate or excessive verdict is important for appellate purposes. A verdict is inconsistent when two findings of fact are mutually exclusive,39 such as when a jury finds a party liable, but awards zero damages. A verdict is not necessarily inconsistent simply because it fails to award enough money, awards too much money, or awards no money in a particular category.40 & #x201c;To preserve the issue of an inconsistent verdict, the party claiming inconsistency must raise the issue before the jury is discharged.”41 The party must specifically request that the matter be resubmitted to the jury, or it is waived.42 The trial court can then reinstruct the jury and send it back for further deliberations. This procedure gives the jury an opportunity to “correct” the inconsistency.43 in contrast, objections to the inadequacy or excessiveness of a verdict can be raised in post-trial motions for additur, remittitur, or new trial without the need for an objection prior to the jury’s discharge.44

Therefore, it is critical for parties to understand the distinction between what is needed to challenge an inconsistent verdict, as opposed to an inadequate or excessive verdict. As the First District recognized in Progressive Select Insurance Co. v. Lorenzo, 49 So. 3d 272, 277 (Fla. 4th DCA 2010):
In recent years, the line of demarcation between inconsistent and excessive or inadequate verdicts has been blurred. This is especially true in the area of no fault litigation and with the advent of special interrogatory verdict forms. What might appear as an inconsistent verdict may actually be an excessive or inadequate verdict. The confusion has in part occurred because these arguments are often combined or intertwined, thereby obfuscating the line between the two.45

A party challenging an award of damages can file a motion for remittitur or additur or a motion for new trial. F. S. §768.74 authorizes the trial court to grant a remittitur or additur where the court determines that the award of damages is “excessive or inadequate in light of the facts and circumstances which were presented to the trier of fact.”46 The statute further provides, “If the party adversely affected by such remittitur or additur does not agree, the court shall order a new trial in the cause on the issue of damages only.”47

Verdict Form
A party’s “failure to object to a verdict form regarding defects not of a constitutional or fundamental character constitutes a waiver of such defects.”48 in fact, a party can invite error by expressing satisfaction with the verdict form before the form is submitted to the jury.49 As the First District explained in Perry v. State, 362 So. 2d 460, 462 (Fla. 1st DCA 1978): “Although the verdict forms were defective, defendant not only failed to enter an objection thereto at trial but also expressed his agreement to its submission. Any verdict form error was, therefore, invited error. His complaint post verdict is out of season.”

The “two-issue rule” also presents potential problems for unwary litigants. The rule, which was adopted by the Florida Supreme Court in Colonial Stores, Inc. v. Scarbrough, 355 So. 2d 1181, 1186 (Fla. 1977), prevents a party from challenging errors in a general jury verdict form if the party failed to object to the general verdict form and propose a special verdict form. Under this rule, if more than one theory of liability is presented to the jury and a general verdict form is used, “no error can be found as to one of multiple theories of liability submitted to the jury.”50 On appeal, the party challenging the general verdict will have to demonstrate error as to both issues submitted to the jury.51 The “two-issue” rule, as its name indicates, applies “only to actions brought on two theories of liability, as to which just a single basis for damages applies, not to claims in which separate damages are recoverable.”52 The rule is inapplicable to cases involving multiple elements of a single theory of liability.53

In Food Lion, L.L.C. v. Henderson, 895 So. 2d 1207, 1209 (Fla. 5th DCA 2005), the Fifth District determined that it could sua sponte raise the “two-issue rule” to affirm a general verdict even though the issue was not raised in the parties’ briefs. The court reasoned that the policy behind the “two-issue” rule was similar to that underlying the harmless error rule, which allows appellate courts to sua sponte engage in a harmless error analysis.54

Harmless Error
F.S. §59.041 provides:

No judgment shall be set aside or reversed, or new trial granted by any court of the state in any cause, civil or criminal, on the ground of misdirection of the jury or the improper admission or rejection of evidence or for error as to any matter of pleading or procedure, unless in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice. This section shall be liberally construed.55

In criminal cases, the harmless error test as established in State v. DiGuilio, 491 So. 2d 1129, 1135 (Fla. 1986), requires the state to “prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” In civil cases, the appellate courts have utilized three different tests for harmless error. The first test, used mainly by the Fourth District, asks whether the result would have been different, but for the error.56 Another line of decisions from the First and Third districts asks whether the result may have been different had the error not occurred.57 A third line of cases from the Second District asks whether it is reasonably probable that the party would have obtained a more favorable verdict without the error.58

The Fourth District recently analyzed the different tests for harmless error in civil cases in Special v. Baux, 52 So. 3d 682 (Fla. 4th DCA 2010). The court concluded that the district courts were improperly using an outcome-oriented analysis instead of employing the process-oriented “effect on the fact finder” approach in DiGuilio.59 The court adopted the following standard for harmless error in civil cases: “To avoid a new trial, the beneficiary of the error in the trial court must show on appeal that it is more likely than not that the error did not influence the trier of fact and thereby contribute to the verdict.”60 The Fourth District also certified the following question to the Florida Supreme Court: “In a civil appeal, shall error be held harmless where it is more likely than not that the error did not contribute to the judgment?”61

Fundamental Error
Fundamental error may be raised on appeal even without a contemporaneous objection. In criminal cases, fundamental error “is the type of error which reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.”62 in civil cases, an error is considered fundamental if it goes to the foundation of the case or goes to the merits of the cause of action.63 For example, a denial of due process constitutes fundamental error and may be challenged for the first time on appeal.64 A jury award of damages that is not authorized by law also constitutes fundamental error.65 Nevertheless, as the Fourth District noted in Grau v. Branham, 761 So. 2d 375, 378 (Fla. 4th DCA 2000), the appellate courts have “all but closed the door on fundamental error in civil trials.”

1 Tolbert v. State, 922 So. 2d 1013, 1017 (Fla. 5th D.C.A. 2006).

2 Brantley v. Snapper Power Equip., Inc., 665 So. 2d 241, 243 (Fla. 3d D.C.A. 1995).

3 USAA Cas. Ins. Co. v. Allen, 17 So. 3d 1270, 1272 (Fla. 4th D.C.A. 2009).

4 Ocwen Fin. Corp. v. Kidder, 950 So. 2d 480, 483 (Fla. 4th D.C.A. 2007).

5 Wade v. State, 41 So. 3d 857, 873 (Fla. 2010); Busby v. State, 894 So. 2d 88, 96-97 (Fla. 2004).

6 Embleton v. Senatus, 993 So. 2d 593, 597 (Fla. 4th D.C.A. 2008).

7 Carratelli v. State, 961 So. 2d 312, 318 (Fla. 2007).

8 Id.

9 Gootee v. Clevinger, 778 So. 2d 1005, 1009 (Fla. 5th D.C.A. 2000).

10 Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010).

11 Id.

12 Id. at 1109.

13 Honda Motor Co., Ltd. v. Marcus, 440 So. 2d 373, 375 (Fla. 3d D.C.A. 1983).

14 Id.

15 See In re Amendments to The Florida Rules of Civil Procedure, 52 So. 3d 579, 589 (Fla. 2010). The amendment took effect on January 1, 2011. Id. at 581.

16 Brown v. State, 940 So. 2d 609, 610 (Fla. 4th D.C.A. 2006); Williams v. Sch. Bd. of Palm Beach Cnty., 770 So. 2d 706, 707 (Fla. 4th D.C.A. 2000); Indus. Affiliates, Ltd. v. Testa, 770 So. 2d 202, 204 (Fla. 3d D.C.A. 2000).

17 Fla. R. Civ. P. 1.480(b).

18 Williams, 770 So. 2d at 707 (holding that the trial court erred in granting the appellee’s post-trial motion for directed verdict because “[a]lthough the [appellee] timely moved for a directed verdict during trial, it did not serve its motion for directed verdict until the eleventh day after the verdict”).

19 City of Pompano Beach v. Edwards, 129 So. 2d 144, 147 (Fla. 2d D.C.A. 1961); see Fee, Parker & Lloyd, P.A. v. Sullivan, 379 So. 2d 412, 418 (Fla. 4th D.C.A. 1980); Pickard v. Mar. Holdings Corp., 161 So. 2d 239, 242 (Fla. 3d D.C.A. 1964).

20 Fulton Cnty. Adm’r v. Sullivan, 753 So. 2d 549, 553-54 (Fla. 1999).

21 Eagleman v. Korzeniowski, 924 So. 2d 855, 859 (Fla. 4th D.C.A. 2006); S. Puerto Rico Sugar Co. v. Tem-Cole, Inc., 403 So. 2d 494, 495 (Fla. 4th D.C.A. 1981).

22 Eagleman, 924 So. 2d at 859.

23 Schreidell v. Shoter, 500 So. 2d 228, 233 (Fla. 3d D.C.A. 1986); LeRetilley v. Harris, 354 So. 2d 1213, 1214 (Fla. 4th D.C.A. 1978).

24 LeRetilley, 354 So. 2d at 1214.

25 Companioni v. City of Tampa, 51 So. 3d 452, 453 (Fla. 2010); Grau v. Branham, 761 So. 2d 375, 378 (Fla. 4th D.C.A. 2000).

26 State v. Cumbie, 380 So. 2d 1031, 1034 (Fla. 1980) (“The motion for mistrial in the present case, made after jury instructions and retirement of the jury for deliberation, however, came too late to preserve Cumbie’s objection for appeal.”).

27 Companioni, 51 So. 3d at 456.

28 Murphy, 766 So. 2d at 1031.

29 Id. at 1030.

30 Id. at 1031.

31 Ed Ricke & Sons, Inc. v. Green, 468 So. 2d 908, 910 (Fla. 1985).

32 Id. at 911.

33 Id.

34 Fla. R. Civ. P. 1.470(b).

35 Luthi v. Owens-Corning Fiberglass Corp., 672 So. 2d 650, 651 (Fla. 4th D.C.A. 1996).

36 Feliciano v. Sch. Bd. of Palm Beach Cnty., 776 So. 2d 306, 307 (Fla. 4th D.C.A. 2000).

37 Id.

38 Luthi, 672 So. 2d at 652.

39 Smith v. Fla. Healthy Kids Corp., 27 So. 3d 692, 695 (Fla. 4th D.C.A. 2010).

40 See id.

41 Fla. Dep’t of Transp. v. Stewart, 844 So. 2d 773, 774 (Fla. 4th D.C.A. 2003).

42 Barreto v. Wray, 40 So. 3d 779, 779 (Fla. 3d D.C.A. 2010).

43 Stewart, 844 So. 2d at 774.

44 Progressive Select Ins. Co., Inc. v. Lorenzo, 49 So. 3d 272, 276 (Fla. 4th D.C.A. 2010).

45 Id. (internal citations omitted.)

46 Fla. Stat. §768.74(1) (2011).

47 Fla. Stat. §768.74(4) (2011).

48 Papcun v. Piggy Bag Disc. Souvenirs, Food & Gas Corp., 472 So. 2d 880, 881 (Fla. 5th D.C.A. 1985); see Hurley v. Gov’t Employees Ins. Co., 619 So. 2d 477, 480 (Fla. 2d D.C.A. 1993).

49 Delvalle v. State, 653 So. 2d 1078, 1079 (Fla. 5th D.C.A. 1995).

50 LRX, Inc. v. Horizon Assocs. Joint Venture, 922 So. 2d 984, 986 (Fla. 4th D.C.A. 2005).

51 Food Lion, L.L.C. v. Henderson, 895 So. 2d 1207, 1209 (Fla. 5th D.C.A. 2005).

52 Weinstein Design Grp., Inc. v. Fielder, 884 So. 2d 990, 997 (Fla. 4th D.C.A. 2004).

53 Grenitz v. Tomlian, 858 So. 2d 999, 1005 (Fla. 2003).

54 Food Lion, LLC, 895 So. 2d at 1209.

55 Fla. Stat. §59.041 (2011).

56 Special v. Baux, No. 4D08–2511, 36 Fla. L. Weekly D2503, 2011 WL 5554531, *10 (Fla. 4th D.C.A. Nov. 16, 2011) (en banc).

57 Id.

58 Id.

59 Id. at *12.

60 Id. at *13.

61 Id. at *14.

62 Dufour v. State, 905 So. 2d 42, 74 (Fla. 2005).

63 Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970).

64 Verizon Bus. Network Servs., Inc. v. Dep’t of Corrs., 988 So. 2d 1148, 1151 (Fla. 1st D.C.A. 2008).

65 Marks v. Delcastillo, 386 So. 2d 1259, 1268 (Fla. 3d D.C.A. 1980).

Shannon Tan is an associate in the appellate department of Butler Pappas Weihmuller Katz Craig, LLP, in Tampa. After graduating magna cum laude from Stetson University College of Law, she served as a staff attorney to Judge Nelly N. Khouzam of the Second District Court of Appeal.

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

Appellate Practice