Pop Quiz: Why Is Fundamental Error Like Pornography?
Answer: To paraphrase Justice Stewart’s often quoted standard, because a court knows it when it sees it.1
The doctrine of “fundamental” or “plain” error, which permits appellate review of error without a proper preservation of the issue in the lower tribunal, has been defined consistently in Florida jurisprudence as “error which goes to the foundation of the case or goes to the merits of the cause of action.”2 A dditionally, fundamental error has been deemed to “extinguish a party’s right to a fair trial.”3 But just as the definition of “obscenity” as material appealing to the “prurient interest” of the average person and “utterly without redeeming social importance” has been imperfect in its application,4 the definition of “fundamental error” has been difficult to apply in specific cases, especially in civil actions, and has sometimes resulted in apparent disparate dispositions.5
The paramount consideration in applying the doctrine of fundamental error should focus on the public’s perception and confidence in the judicial process. As Judge Chris W. Altenbernd observed in Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996):
Although fundamental error is extraordinarily difficult to define, the doctrine functions to preserve the public’s confidence in the judicial system. Relief is granted for a fundamental error not because the party has preserved a right to relief from a harmful error, but because the public’s confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.
Id. at 584.
How, then, is an appellate practitioner, staring at a record or transcript, supposed to know whether the unpreserved error glaring back is “fundamental”? This column seeks to aid the appellate (and trial) practitioner in evaluating whether unpreserved errors at the different stages of civil cases may be reviewed through use of the fundamental error doctrine, keeping in mind that the Supreme Court of Florida has cautioned that an appellate court should exercise its discretion under the doctrine “very guardedly.”6 The reader will quickly discern that, unlike pornography, courts often see fundamental error for what it is not, rather than for what it is.
Voir Dire
Errors made during voir dire and jury selection are not generally regarded as “fundamental.” For example, in Ter Keurst v. Miami Elevator Co., 486 So. 2d 547 (Fla. 1986), the Supreme Court held that while the trial court’s procedure for jury selection in that case was an abuse of discretion, the error was not fundamental and counsel’s failure to object to the panel as sworn precluded reversal of the judgment entered upon the jury’s verdict. A contemporaneous objection to a trial court’s failure to excuse certain jurors for cause and its limitations on the scope of voir dire is not sufficient to preserve the issue for appeal.7 The same is true for a party who unsuccessfully moves to strike a jury panel for improper remarks made during voir dire,8 or who objects to an opposing party’s use of a peremptory challenge on the basis of discriminatory reasons.9 Counsel must make or renew all objections to the jury selection process prior to the jury’s being sworn in order to preserve any errors for review.10
Trial Errors
It is clear that most trial errors involving constitutional issues are waived if not preserved by a timely objection. For example, in Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970), the Supreme Court held that the district court erred in considering for the first time on appeal a single-subject constitutional challenge to a statute that permitted an award of attorneys’ fees to the prevailing employees in a disciplinary proceeding. The court reasoned that “the allowance of the attorneys’ fee did not go to the merits of the case or the foundation of the case,” which instead involved the employees’ rights to retain their employment and receive compensation during their suspension pursuant to an erroneous disciplinary board ruling.11 The First District cited Sanford in its rejection of a business owner’s argument, raised for the first time on appeal, that a zoning ordinance was invalidly enacted even where the “foundation of the case” was the entry of an injunction against the business owner based upon the zoning ordinance.12
Courts are, however, likely to see fundamental error in constitutional issues involving due process. In particular, the Fifth District has held that it was fundamental error for a trial court to deny a party’s request to call witnesses or to present closing argument at a hearing to modify an earlier dissolution judgment.13 The Fifth District has also found fundamental error in a trial court’s failure to rule on—in effect, to deny—a request for a continuance to obtain a guardian to act on the party’s behalf where it was legally impossible for the party to participate in the proceeding.14 It should be noted that neither of these opinions reveals whether the aggrieved party timely or properly objected to the trial court’s ruling. On the other hand, however, the Fifth District has held fundamental error was not present where a pro se party failed to object to a hearing officer’s decision to continue a proceeding without the presence of the sole adverse witness against her, which witness she had not had an opportunity to cross-examine at the first hearing.15
Error that goes to the foundation of a case or cause of action occurs at trial when the court permits a party to bring a cause of action that does not exist or is not available to the party. In I.A. v. H.H., 710 So. 2d 162 (Fla. 2d DCA 1998), even though the argument had not been raised in the trial or appellate courts, the Second District reversed a judgment of paternity and remanded with directions to dismiss the petition where it concluded that the biological father had no cause of action to establish paternity after the putative father married the child’s mother. In reaching this overlooked but critical issue, the Second District stated:
Although positions that are not presented to the trial court or argued on appeal generally are waived, it is our duty to notice and correct jurisdictional defects or fundamental errors even when they have not been identified by the parties. Such is the case where the trial court has granted relief that is not authorized by law, or pursuant to a cause of action that either does not exist or is not available to the plaintiff.16
Similarly, the Third District has held that a defendant’s failure to preserve a statute of frauds defense issue did not preclude review where it was “crystal clear” that the uncontroverted evidence on the making and duration of the oral contract did not state an actionable claim for relief.17 The Second District, concluding the equitable distribution of a nonmarital asset was fundamental error, reversed that award, although the issue was raised for the first time at oral argument.18 At least two courts have held that federal preemption issues can be raised for the first time on appeal if resolution of the issue can be made from the existing record without further factual determinations.19
The district courts of appeal may be in conflict on whether the failure to appoint a guardian ad litem may be raised as error for the first time on appeal. In A.D. v. Department of Health & Rehabilitative Services, 639 So. 2d 639 (Fla. 2d DCA 1994), the Second District held that the trial court’s failure to appoint a statutorily required guardian ad litem was not fundamental error that could be raised for the first time on appeal. The Fifth District held to the contrary in Vestal v. Vestal, 731 So. 2d 828 (Fla. 5th DCA 1999), although it had previously held in another case that failure to appoint a guardian ad litem was not fundamental error.20 In determining that such failure was fundamental error in Vestal, the court distinguished its prior decision and the Second District’s decision in A.D.:
In contrast to [those cases], in the instant case no guardian was ever appointed, and apparently no appointment was even attempted. Additionally, here there were no foster parents and very little HRS involvement. . . . Due to the lack of a guardian or foster parents to testify in this case, along with the inconclusiveness of the medical evidence, the trial essentially became a credibility contest between an ex-wife and an ex-husband. Under these circumstances, we find that the failure to appoint a guardian constitutes reversible error despite the failure of Appellant to raise the issue below. Such an appointment was necessary to adequately represent the child’s interests.21
While the apparent conflict may be reconciled on the facts, these cases also illustrate the case-specific inquiries courts make to determine whether the fundamental error doctrine will be applied to grant review for trial errors to which no objection was made. Also keep in mind that the doctrine should be applied where failure to do so would undermine the public’s confidence in the judicial process. For example, the public could not fault the trial court in the A.D. case for not appointing a guardian ad litem because none was available. Conversely, in Vestal there was a greater chance for the public to lose confidence in the process, especially one involving children, because the court had not even attempted to appoint a guardian ad litem.
The Fourth District has been less inclined to view unpreserved errors as fundamental, even where the error arguably goes to the merits of the party’s cause. For example, in Fostock v. Lampasone, 711 So. 2d 1154 (Fla. 4th DCA 1998), the court held that the trial court’s failure to adhere to the punitive damages pleading requirements of F.S. §768.72 could not be reviewed on appeal where the defendant failed to appear for trial, much less objected to the omission. Additionally, in O’Brien v. Florida Birth-Related Neurological Injury Compensation Ass’n, 710 So. 2d 51 (Fla. 4th DCA 1998), the Fourth District held that the plaintiffs’ failure to object to the administrative judge’s proceeding on their action for the death of their son without the statutorily required medical advisory panel review waived the error for appeal. In O’Brien, Judge Larry Klein gave several examples of civil trial errors held to be fundamental, as well as those errors that have not been found fundamental.
Sometimes courts use the doctrine of fundamental error to correct mistakes or omissions at trial where an objection would not have been possible. For example, the entry of a judgment on unliquidated damages following a default judgment has been held to be fundamental error where the defaulting party had no notice of the trial on damages22 or the complaint upon which the default judgment was entered did not seek the damages thereafter awarded.23 Similarly, an appellate court will review on appeal a judgment entered against a nonparty.24
Attorney Misconduct During Trial
For many years, courts had difficulty in applying the standard for determining and reviewing whether unpreserved improper argument of counsel rose to the level of fundamental error requiring a new trial. There was considerable debate on the competing concerns of having the merits of a case decided by a party’s chosen jury, depriving a party of a fair trial and due process based upon improper argument, and maintaining the public’s confidence in the judicial process. Most of the cases in the Southern Reporter dealing with fundamental error involve attorney misconduct in closing argument.25
When presented with this conflict in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000), the Supreme Court observed that the difficulty in analyzing the issue was “generated by a lack of appellate uniformity and a failure at the appellate level to apply a very narrow and limited parameter of ‘fundamental error.’”26 In Murphy, the Supreme Court has attempted to clarify the standards courts should use in determining whether unpreserved improper argument of counsel in civil cases is reversible error.
First, any error based upon an unpreserved improper closing argument must be presented to the trial court in a motion for new trial before it may be raised on appeal. This approach permits the trial judge, who best can determine the impact of any improper argument, the opportunity to decide the issue.
In ruling on whether closing argument is improper, the trial judge must keep in mind that the purpose of closing argument is to assist the jury’s application of the evidence to the controlling law in the action. As proscribed by Rule 4-3.4 of the Rules Regulating The Florida Bar, attorneys are not permitted to interject irrelevant matters or personal opinions on the merits of the action, the credibility of a witness, or the culpability of a civil litigant.
If the complaining party establishes that a comment was improper, then the party must show that the comment was harmful. To meet this requirement, the party must demonstrate that the comment or argument was “so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury,” i.e., “of such a nature that it reached into the validity of the trial itself to the extent that the verdict reached could not have been obtained but for such comments.”27 A factor to be considered is the extensiveness of the comments or argument.
Next, the party has the “extremely difficult” burden of establishing that the error is incurable, such that even an objection and a curative instruction could not have erased the “probability” that the error resulted in an “improper verdict.”28
Finally, the complaining party must prove that the improper, harmful, incurable argument “so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.”29 The Supreme Court suggested that a closing argument appealing to racial, ethnic, or religious prejudices “traditionally fits within this narrow category of improper argument requiring a new trial even in the absence of an objection.”30
If a trial court grants a new trial on the basis of unpreserved improper closing argument, it must specifically identify the improper argument or comment and the jury’s actions resulting therefrom.31 An appellate court reviews an order granting or denying a new trial on the basis of unpreserved improper argument to determine whether the trial court abused its discretion. Application of this standard “recognizes that the trial judge is in the best position to determine the propriety and potential impact of allegedly improper closing argument.”32
Justice Pariente observed in her Murphy concurring opinion that this standard “all but closes the door on unobjected-to closing argument.”33 Following its decision in Murphy, the Third District concluded in Stensby v. Effjohn Oy AB, 806 So. 2d 542 (Fla. 3d DCA 2001), that a trial court did not abuse its discretion in ordering a new trial on the basis of the defendants’ “inexcusable intimation of religious prejudice” in closing argument.34 On the other hand, the Third District later held in Telemundo Network, Inc. v. Spanish Television Services, Inc., 812 So. 2d 461 (Fla. 3d DCA 2002), a plurality decision—with a strong dissent—that counsel’s “improper nationalistic theme” in closing was not sufficiently prejudicial under the Murphy four-part test to reverse the trial court’s denial of a new trial, especially since the error could have been corrected had counsel objected when the comments were initially made to the jury.35 In both of these cases, however, it should be noted that the appellate court affirmed the trial courts’ decisions on the impact of the unpreserved error.
Equally interesting is the Second District’s decision in Garbutt v. LaFarnara, 807 So. 2d 83 (Fla. 2d DCA 2001), following remand from the Supreme Court after its decision in Murphy. Previously, the Second District had concluded that the impropriety of counsel’s closing argument had not been preserved for review and did not rise to the level of fundamental error.36 But, the court certified a question of great public importance to the Supreme Court on whether a motion for mistrial on the basis of unobjected-to comments in closing argument made prior to the case’s submission to the jury sufficiently preserved the issue for review.37 The Supreme Court declined to answer the certified question, stating that it had answered similar questions in Murphy.38 On remand, the Second District concluded that the issue had been sufficiently preserved for review by the motion for mistrial filed after the closing arguments and before the case was submitted to the jury. Accordingly, the court did not apply the Murphy analysis, but instead, reversed the trial court’s discretionary decision and remanded for a new trial.39
Appellate practitioners should be aware that the Murphy four-part test may be applied to unpreserved errors involving attorney misconduct other than in closing argument. For example, in Grau v. Branham, 761 So. 2d 375 (Fla. 4th DCA 2000), the Fourth District held in a medical malpractice action that any error arising from the plaintiff’s attorney’s repeated statements to the defendant that the textbook the defendant had shown to the plaintiff before surgery was used by Nazis was not preserved for review nor was it fundamental error. In that case, the defendant objected to the remarks, but did not ask for a curative instruction or move for a mistrial. The Fourth District concluded that the trial court did not abuse its discretion in denying the defendant’s motion for new trial.40 Similarly, an attorney’s improper reference to insurance matters during voir dire,41 counsel’s remarks during voir dire that the jury should know a witness from news articles on the witness’s alleged tax evasion,42 and counsel’s eliciting testimony about a prior settlement43 have been held not to be fundamental error.
Jury Instructions and Verdicts
The application of the fundamental error doctrine to erroneous jury instructions and jury verdicts is another area of great debate.
Generally, and consistent with Florida Rule of Civil Procedure 1.470(b), failure to object at the charge conference or at the time of the trial court’s instructions to the jury waives the issue for appellate review.44 The fundamental error doctrine cannot be used to cure legal errors in jury instructions to which the complaining party could have, but failed to, object at the trial level.45 Apparently, a motion for new trial that first raises the issue of improper jury instructions cannot cure the failure to object at the charge conference.46 Similarly, a trial judge’s failure to answer directly a juror question on the law arising during deliberations has not been deemed fundamental error.47
Nevertheless, in 1969, the Supreme Court applied the doctrine in Railway Express Agency, Inc. v. Fulmer, 227 So. 2d 870 (Fla. 1969), and affirmed the district court’s decision to review and reverse for new trial a case where the trial court had inadvertently failed to instruct the jury on comparative negligence. At the charge conference, the trial court announced the instructions it would give, which included the comparative negligence feature of the controlling hazardous occupations statute. While the jury was deliberating, the trial court asked if there were any objections to the instructions as given. The plaintiff’s counsel responded in the negative. Following a defense verdict, the plaintiff filed an unsuccessful motion for new trial on the basis that the jury was not instructed on the complete hazardous occupation statute, including comparative negligence.
In affirming the district court’s reversal and remand for new trial, the Supreme Court recognized both the general contemporaneous objection rule and the exceptions to it. The court concluded:
An attorney who has been diligent in securing the Court’s acceptance of the instructions he proposes does not anticipate the omission of part of an agreed on charge, particularly when the charge is taken directly from the statute governing the cause of action before the Court. We hold, then, that under the circumstance before us, failure of counsel to object at the time did not bar consideration of the error on appeal.48
Thus, it appears that where a trial court agrees to give a requested instruction that is the correct statement of law, but inadvertently omits a material part of that instruction, such error may be reviewed on appeal from the judgment entered on the verdict or through the denial of a motion for new trial, even where the complaining party’s counsel did not bring such error to the attention of the trial court before the jury returned the adverse verdict. It is not hard to see how such a rule could be subject to abuse. Counsel, who noticed the error during the charge, could merely sit back and wait for the verdict to see if it had any unfavorable impact. This exception seems inconsistent with the basis for a timely objection to give the trial court notice of the potential error and the opportunity to correct it at the earliest possible stage, thereby promoting expeditious resolution of the issue.49
It is equally unclear whether the fundamental error doctrine may be used to review unpreserved error in jury verdicts or verdict forms. In Marks v. Delcastillo, 386 So. 2d 1259 (Fla. 3d DCA 1980), the Fifth District affirmed the grant of a new trial where the jury erroneously awarded damages for lost net accumulations to an estate whose decedent was not survived by a spouse or lineal descendants. The court rejected the plaintiffs’ argument that the defendant waived this ground for review because he objected to the proposed jury instruction on other grounds: “The estates have recovered damages to which they have no right under the law. Such an error is a fundamental one which requires reversal notwithstanding the lack of appropriate objection at the trial.”50 Quoting its prior decision in Keyes Co. v. Sens, 382 So. 2d 1273, 1276 (Fla. 3d DCA 1980), the Third District explained:
The error of imposing on a defendant compensatory damages which are not authorized by law and which are contrary to law is one that goes to the ultimate merits of the cause. Moreover, such an error is one of constitutional dimension, for the reason that enforcement of such a judgment would constitute a taking of property from the defendant without due process of law.51
When confronted with a new trial order based upon a patent error in the jury’s verdict reflecting that it did not reduce future damages to present value, the Fourth District held in Burgess v. Mid-Florida Service, 609 So. 2d 637 (Fla. 4th DCA 1992), that counsel waived the issue by failing to object before the jury was discharged.52 In reversing the order granting a new trial, the Fourth District stated: “The jury’s mistaken calculation here of the one element of damages goes neither to the foundation of the case nor the merits of the cause of action.”53 The court added that even under a fundamental error analysis, the jury’s apparent failure to reduce the future damages to present value was not inconsistent with the jury instructions, and could be consistent with a “total offset” calculation of future damages.54
In Anheuser-Busch, Inc. v. Lenz, 669 So. 2d 271 (Fla. 5th DCA 1996), the Fifth District concluded that the jury’s patently inconsistent verdict was fundamental error. There, the jury found in a special interrogatory verdict form that the defendant was 70 percent negligent, but had not placed the dangerous product on the market with a defect. There is no indication or discussion in Lenz, however, of whether the defendant failed to preserve the issue for review.55
The Second District held in K-Mart Corp. v. Collins, 707 So. 2d 753 (Fla. 2d DCA 1998), that in the absence of fundamental error or a timely objection in the trial court, any error in a verdict form is waived and cannot support the granting of a new trial.56 In Collins, the trial judge ordered a new trial because he thought the verdict form was incorrect, and such error caused the jury to mistakenly transpose the comparative negligence figures. In reversing the order granting a new trial, the Second District concluded that the record did not support the trial judge’s finding that the jury mistakenly transposed the comparative negligence figures, especially where the jury, when polled, all agreed with the verdict. Further, the court stated that counsel had agreed to the verdict form.57
Finally, the Third District in Sayih v. Perlmutter, 561 So. 2d 309 (Fla. 3d DCA 1990), granted a motion for new trial where irrelevant and prejudicial medical records that had not been admitted into evidence were inadvertently delivered to the jury room, and it was apparent that the jury had considered such records in its deliberations.58 Although the error was not discovered until the jury had concluded its deliberations and was not brought to the trial court’s attention prior to the jury’s discharge, the Third District considered the merits of the issue on appeal where the issue was first raised in a timely motion for new trial, which the majority of the panel concluded brought the issue to the trial court’s attention as soon as it was discovered. The dissent, on the other hand, concluded that the issue had not been preserved for review and was not fundamental error.59 The Sayih holding should be limited to instances where prior to the jury’s retiring, the complaining party was not aware that the prejudicial material went with the jury to the deliberation room.60
Motions for New Trial
Perhaps the most interesting question in the area of fundamental error is whether a contemporaneous objection is required before a trial court may consider an alleged error raised for the first time in a motion for new trial. According to Judge Larry Klein’s opinion in Nigro v. Brady, 731 So. 2d 54 (Fla. 4th DCA 1999), the answer—at least with respect to motions for mistrial—is no:
We conclude that there is a distinction between arguing for the first time on appeal that a mistrial should have been granted and raising the issue in the trial court in a motion for new trial. The trial judge in this case had the discretion to grant a new trial, even though there was no motion for mistrial during the trial and this was not fundamental error.
* * *We have concluded that the preservation rule which applies to raising issues on appeal does not apply to motions for new trial. Our reasoning is grounded on the fact that a trial judge generally has broad discretion to set aside a jury verdict and grant a new trial. Cloud v. Fallis, 110 So. 2d 669 (Fla. 1959). An appellate court does not have that same broad discretion, which is logical, because the trial judge is “in a much better position than an appellate court to pass on the ultimate correctness of the jury’s verdict.” Castlewood Int’l Corp. v. LaFleur, 322 So. 2d 520, 522 (Fla. 1975).61
But, is the trial court’s own standard for determining whether a motion for new trial should be granted or denied different for preserved and unpreserved errors? In Murphy, the Supreme Court set out the four-part test trial courts must use to determine whether to grant a new trial for unpreserved errors in closing argument. It is difficult to tell the practical difference between the Murphy test for unpreserved errors and the test used for preserved errors in closing arguments, i.e., whether the comment affected the jury’s verdict on liability or damages.62 It is clear, however, that whether the error is preserved, or unpreserved yet fundamental, a trial court’s ruling on a motion for new trial generally will be reversed only for an abuse of discretion.63 Accordingly, appellate practitioners should advise trial attorneys who consult with them— preferably while the case is still in the trial court—to bring legitimate errors to the trial court’s attention in a motion for new trial.
Conclusion
Thus, when faced with an unpreserved error, an appellate practitioner should review cases with similar or analogous facts, where the error has been both preserved and unpreserved, to determine how courts analyze each situation. Sometimes it will not be apparent what standard either the trial or appellate court is using in its decision. Like pornography, a court knows it when it sees it—or more often, in fundamental error cases, a court knows when it does not see it. Similarly, just as an attorney must convince a court that certain “obscene” material appeals to the “prurient” interest of the average person, an appellate practitioner must convince a court that the specific unpreserved error at issue, if not reversed, will “undermine the public’s confidence” in the judicial process. In both cases, the determination will not rest necessarily on the specific harm to the parties in the case. Instead, in fundamental error cases, as in pornography cases, the decision is based largely upon the court’s perception of society’s view.
1 See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964).
2 Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970).
3 Lucas v. Mast, 758 So. 2d 1194, 1195 (Fla. 3d D.C.A. 2000) (citation omitted).
4 Jacobellis, 378 U.S. at 191 (citing Roth v. United States, 354 U.S. 476, 508 (1957)).
5 See, e.g., Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 583 (Fla. 2d D.C.A. 1996) (noting that application of doctrine of fundamental error to unpreserved objections to closing arguments resulted in greater number of new trials in districts other than the Second District), disapproved on other grounds, Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000).
6 Sanford v. Rubin, 237 So. 2d at 137.
7 See Wallace v. Holiday Isle Resort & Marina, Inc., 706 So. 2d 346 (Fla. 3d D.C.A. 1998).
8 See Melara v. Cicione, 712 So. 2d 429 (Fla. 3d D.C.A. 1998).
9 See Watson v. Gulf Power Co., 695 So. 2d 904 (Fla. 1st D.C.A. 1997), and cases cited therein at 904 n.1.
10 See supra notes 7, 8 & 9.
11 Sanford, 237 So. 2d at 137.
12 See Misty’s Café, Inc. v. Leon County, 640 So. 2d 170 (Fla. 1st D.C.A. 1994).
13 See Pettry v. Pettry, 706 So. 2d 107 (Fla. 5th D.C.A. 1998).
14 See Lopez v. Lopez, 689 So. 2d 1218 (Fla. 5th D.C.A. 1997).
15 See Poole v. Unemployment Appeals Comm’n, 719 So. 2d 974 (Fla. 5th D.C.A. 1998).
16 I.A., 710 So. 2d at 165 (citations omitted). See also Watson v. Schultz, 760 So. 2d 203 (Fla. 2d D.C.A. 2000) (reversing order denying motion to vacate order setting aside dissolution judgment where at time order entered appellant did not have standing to seek relief from dissolution judgment; thus, trial court did not have jurisdiction to rule on motion to vacate the dissolution final judgment, even though issue not raised on appeal).
17 See Coleman Co. v. Cargill Int’l Corp., 731 So. 2d 2, 4 (Fla. 3d D.C.A. 1998).
18 See Belmont v. Belmont, 761 So. 2d 406 (Fla. 2d D.C.A. 2000).
19 See Zuliana de Aviacion v. Herrera, 763 So. 2d 499 (Fla. 3d D.C.A. 2000); Florida Auto. Dealers Indus. Benefit Trust v. Small, 592 So. 2d 1179 (Fla. 1st D.C.A. 1992).
20 See Fisher v. Dep’t of Health & Rehabilitative Servs., 674 So. 2d 207 (Fla. 5th D.C.A. 1996).
21 Vestal, 731 So. 2d at 829.
22 See Security Bank, N.A. v. Bell South Adver. & Publ’g Corp., 679 So. 2d 795 (Fla. 3d D.C.A. 1996).
23 See Hooters of America, Inc. v. Carolina Wings, Inc., 655 So. 2d 1231 (Fla. 1st D.C.A. 1995).
24 See, e.g., Norville v. Bell South Adver. & Publ’g Corp., 664 So. 2d 16 (Fla. 3d D.C.A. 1995) (reversing judgment ruling that plaintiff could recover against defendant’s personal property where defendant, individually, was not named party defendant in complaint); Wright v. Scott, 658 So. 2d 1215 (Fla. 1st D.C.A. 1995) (reversing final summary judgment adding individual defendant pursuant to untimely motion to correct judgment).
25 See generally Larry A. Klein, Allowing Improper Argument of Counsel to be Raised for the First Time on Appeal as Fundamental Error: Are Florida Courts Throwing Out the Baby with the Bath Water?, 26 Fla. St. U. L. Rev. 97 (1998).
26 Murphy, 766 So. 2d at 1027.
27 Id. at 1029, 1030.
28 Id. at 1030.
29 Id.
30 Id.
31 Id.
32 Id. at 1030-31.
33 Id. at 1032.
34 See Stensby, 806 So. 2d at 544.
35 See Telemundo Network, Inc., 812 So. 2d at 466–67 (Sorondo, J., specially concurring).
36 Garbutt v. LaFarnara, 754 So. 2d 727 (Fla. 2d D.C.A. 1999).
37 Id. at 727–28.
38 Garbutt v. LaFarnara, 795 So. 2d 957 (Fla. 2001).
39 See Garbutt, 807 So. 2d 83 (Fla. 2d D.C.A. 2001). See also Nigro v. Brady, 731 So. 2d 54 (Fla. 4th D.C.A. 1999) (affirming order granting new trial on basis of attorney’s badgering witness, and holding that motion for new trial preserved issue, which was not fundamental error where plaintiff objected to badgering but did not file motion for mistrial).
40 See Grau, 761 So. 2d at 378.
41 See Melara, 712 So. 2d at 431.
42 See Saunders v. Smith, 382 So. 2d 1254 (Fla. 4th D.C.A. 1980).
43 See Lowe Inv. Corp. v. Clemente, 685 So. 2d 84 (Fla. 2d D.C.A. 1996).
44 See City of Orlando v. Birmingham, 539 So. 2d 1133 (Fla. 1989).
45 See Feliciano v. School Bd. of Palm Beach County, 776 So. 2d 306 (Fla. 4th D.C.A. 2000); Clay v. Prudential Ins. Co. of America, 670 So. 2d 1153 (Fla. 4th D.C.A. 1996).
46 See Hargrove v. CSX Transp., Inc., 631 So. 2d 345 (Fla. 2d D.C.A. 1994); Affolter v. Virginia Key Marina, 601 So. 2d 1296 (Fla. 3d D.C.A. 1992).
47 See Rose’s Stores, Inc. v. Mason, 338 So. 2d 1323 (Fla. 4th D.C.A. 1976).
48 Fulmer, 227 So. 2d at 872. See also LaRussa v. Vetro, 254 So. 2d 537 (Fla. 1971) (holding omission on future medical expenses in instruction on plaintiff’s damages was fundamental error requiring new trial where trial court agreed to give standard instructions, but inadvertently omitted instruction on future medical expenses, and jury’s verdict clearly revealed that it awarded damages only for past medical expenses).
49 See Birmingham, 539 So. 2d at 1134–35 n.56.
50 Marks, 386 So. 2d at 1267–68.
51 Id. at 1268 (citation omitted).
52 See 609 So. 2d 637 (Fla. 4th D.C.A. 1992).
53 Id. at 638.
54 Id.
55 Cf. Orlando Dinner Entm’t, Inc. v. Span Sys., Inc., 760 So. 2d 1034 (Fla. 5th D.C.A. 2000) (affirming judgments in mechanic’s lien action and rejecting argument that inconsistent verdicts required reversal where there was no objection made to the verdicts and court found no fundamental error).
56 Collins, 707 So. 2d at 754.
57 Id.
58 Sayih, 561 So. 2d at 312.
59 See id. at 313 (Hubbart, J., dissenting).
60 See Bush v. State, 809 So. 2d 107, 116 (Fla. 4th D.C.A. 2002)
61 Nigro, 731 So. 2d at 55–56 (footnote omitted).
62 See Hagan, 666 So. 2d at 585.
63 See Murphy, 766 So. 2d 1030–31.
Valeria Hendricks, a partner and shareholder in Davis & Harmon, P.A., Tampa, is board certified in appellate practice. She received her J.D., with honors, from Florida State University College of Law. She is on the Executive Council of the Appellate Practice and Advocacy Section of The Florida Bar, and chairs the Civil Rules Subcommittee of the Bar’s Appellate Court Rules Committee. She also co- chairs the Appellate Practice Section of the Hillsborough County Bar Association.
This column is submitted on behalf of the Appellate Practice and Advocacy Section, Angela C. Flowers, chair, and Jacqueline E. Shapiro, editor.
