The Florida Bar

Florida Bar Journal

Preserving Appellate Rights at Trial and in Post-trial Proceedings

Trial Lawyers

As a trial lawyer, you certainly do not want to waive your client’s appellate rights unintentionally. Nonetheless, the same types of unintended waivers seem to occur regularly in Florida courts, even with experienced trial counsel. A review of the most common mistakes may help you avoid unintended waivers.

The Trial Begins

Perhaps the most complicated procedure for preserving an objection occurs with jury selection. If you want to preserve the right to appeal the trial court’s refusal to excuse a juror for cause, you must exhaust all of your peremptory challenges, request additional challenges, and identify the juror which would have been stricken with the additional challenges.1 Although you may feel that you have preserved the error by jumping through these hoops, you waive the objection if you subsequently accept the jury without renewing the objection or conditioning the acceptance of the jury on the objection.2

If the trial court rules against your client on a motion in limine, you may think you have preserved the ruling for appellate review. You probably would be wrong. It is generally held that an offer of proof of evidence excluded by an order in limine must be made at trial in order to preserve the claim of error.3 Similarly, when you unsuccessfully move in limine to exclude evidence, you must also object to the introduction of that evidence at trial.4 The general rule for motions in limine is a product of an adherence to the principles of the contemporaneous objection rule.5 The rule is intended to give trial judges an opportunity to address objections made by counsel in trial proceedings and correct errors, and it also prohibits counsel from intentionally allowing errors to go uncorrected as a trial tactic.6 There is authority for the proposition that it is not necessary to make an offer of proof at trial if an adequate record of the excluded evidence has been made at the hearing on the motion in limine.7 Make the offer of proof anyway.

Evidentiary Rulings

One of the guiding principles of appellate review is found in F.S. §90.104(1)(a) (1997), which provides that an error in the admission of evidence is not preserved without a timely objection stating the specific ground if the specific ground is not apparent from the context. The objections “improper predicate” and “lack of foundation” are not specific grounds within the meaning of §90.104.8 If you want to complain about an “improper predicate,” you must put the court and the opposing party on notice of the specific problem with the predicate so that the problem may be disposed of quite simply by putting one more question to the witness.9

It is not unusual for an appellate court to review a transcript which contains a proper objection but no ruling by the court. The court and counsel may discuss the objection, and that discussion may simply trail off into nothingness. It is the duty of the objecting party to obtain a clear ruling in order to preserve an issue for appeal.10 If the trial court does not make a ruling, there is nothing for the appellate court to review.11 If the trial court deliberately and patently refuses to rule, the objection is preserved.12

If you want to have the appellate court review a ruling excluding evidence, you must make the substance of the evidence known by offer of proof, unless the substance was apparent from the context.13 Under Fla. R. Civ. P. 1.450(a), there must be a specific offer of the evidence, and the record must clearly show the character of the evidence. Documentary evidence must be marked for identification, offered into evidence, and filed with the court.14 Without an offer of proof, it never occurred as far as the appellate court is concerned.

After the Parties Rest

If you want to preserve the question of improper argument of counsel in opening or closing, you must make an immediate objection.15 The objection must be coupled with a motion for mistrial, which must be made prior to the retirement of the jury.16 The trial court can wait for a verdict before ruling on the motion for mistrial.17 If an objection to argument is overruled, it is preserved for appeal without the necessity of moving for a mistrial.18 Forget about “fundamental error.”19

The “two-issue rule” occasionally traps unwary litigators. Where there is no proper objection to the use of a general verdict form, reversal is improper where no error is found as to one of the issues submitted to the jury.20 An appellate claim of error raised by the defendant as to one cause of action cannot be the basis for reversal where two or more theories of liability or causes of action were presented to the jury.21 Where two or more defense theories are presented to the jury, and it returns a verdict for the defense, an appellate claim of error as to one defense theory will not result in reversal since the verdict may stand on another theory.22 Although the rule may seem harsh, “the remedy is always in the hands of counsel.”23

Under Fla. R. Civ. P. 1.470(b), the parties are required to file their proposed jury instructions in writing not later than at the close of the evidence. The rule describes a charge conference in the following manner:

At such conference all objections shall be made and ruled upon and the Court shall inform counsel of such charges as it will give. No party may assign as error the giving of any charge unless that party objects thereto at such time, or the failure to give any charge unless that party requested the same. The Court shall orally charge the jury after the arguments are completed and, when practicable, shall furnish a copy of its charges to the jury.24

The Florida Supreme Court has explained the contemporaneous objection rule as applied to jury instructions in the following manner:
The requirement of a timely objection is based on practical necessity and basic fairness in the operation of the judicial system. A timely objection puts the trial judge on notice that an error may have occurred and thus provides the opportunity to correct the error at an early stage of the proceedings. Castor v. State, 365 So. 2d 701, 703 (Fla. 1978). It is essential that objections to jury instructions be timely made so that cases can be resolved expeditiously. In the absence of a timely objection, the trial judge does not have the opportunity to rule upon a specific point of law. Consequently, no issue is preserved for appellate review.25

If the trial court deviates from the instructions, counsel must object or otherwise call the court’s attention to the deviation at the time the instructions are given.26 A party cannot wait until after a verdict is returned to object to the failure to give a charge.27
If the jury returns an inconsistent verdict, any objection is waived by the failure to raise it while the jury is still present to correct the problem.28 A contemporaneous objection is necessary with an inconsistent verdict, but it is not necessary to challenge an inadequate verdict on appeal.29 A verdict which is both inconsistent and inadequate may be reviewed on appeal without a contemporaneous objection to its form having been made.30 A mathematical miscalculation may be corrected by the trial court after the jury has been discharged.31
Any party who wants to preserve the right to contest the sufficiency of the evidence to support the verdict must move for a directed verdict at the close of the evidence or for a new trial on that ground.32 Under Fla. R. Civ. P. 1.480(a), a motion for directed verdict must state its specific grounds. It must be made at the close of all of the evidence.33 Rule 1.480(b) allows 10 days from the date the verdict is returned for the service of a motion to set aside the verdict and to enter judgment in accordance with the motion for directed verdict. Any motion for new trial must be served within 10 days of the return of the verdict with a jury trial or the filing of a judgment in a nonjury trial.34 A party may appeal from the denial of a motion for new trial even without having made a motion for directed verdict at trial.35
If you are aware of an incident which potentially compromises the jury, you cannot wait until a verdict is returned before alerting the court.36 A party who is aware of acts affecting the jurors must object at once or as soon as the opportunity is presented, or be considered to have waived his objection.37
Post-trial Waivers
After the trial, there are a variety of ways to waive the rights of your client. You probably know that a final order is “rendered” (i.e., the 30-day appellate clock starts to tick) when the signed order is filed with the clerk.38 You also may know that the rendition is stayed upon the filing of an authorized and timely motion for new trial or rehearing, clarification, or certification; to alter or amend; for JNOV or in arrest of judgment; or a challenge to the verdict.39 You may not know that the stay of rendition by the filing of a post-trial motion applies only to the moving party and any party against whom relief is sought by the motion.40 The clock continues to tick for any party who has not filed an order staying rendition, or against whom such a motion does not seek relief. In other words, you cannot depend on another party’s motion for rehearing to stay rendition of the judgment as to your client.
Another potential problem area with this tricky “stay of rendition” area arises out of the fact that a motion to vacate under Fla. R. Civ. P. 1.540 does not stay rendition.41 It is the substance of the motion and not its title which determines whether the motion is for rehearing under Rule 1.530 or for relief from judgment under Rule 1.540.42 If you want your post-judgment motion to stay rendition of the judgment under Fla. R. App. P. 9.020(h), it must be a motion for new trial or rehearing and not a motion for relief from judgment. Incidentally, if you are dissatisfied with the court’s ruling on a motion under Rule 1.540, file a notice of appeal within 30 days of the date the signed, written order is filed with the clerk of the lower tribunal. Like other post-trial motions, orders rendered pursuant to Rule 1.540 are considered nonfinal and appealable under Fla. R. App. P. 9.130.43 No motion for rehearing is authorized, and rendition is not tolled by filing an unauthorized motion.44
A party cannot complain of a verdict as being excessive if no motion for new trial is filed.45 A party may not complain of the inadequacy of a favorable verdict unless a motion for new trial raises that issue.46 The question of the propriety of an award of punitive damages must be raised by post-verdict attack if it is to be considered on appeal.47 A motion for new trial regarding the adequacy of an award is unnecessary with a nonjury trial.48


You have probably heard these points discussed at seminars. You may have read about them in other articles. Make sure to review them and make them a part of your trial practice. Regardless of the result at trial, your case may be won or lost at the appellate level. It is your responsibility to make sure that potential appellate claims are properly preserved. q

1 The Second District Court has described the situation in the following manner: “’[I]t is reversible error for a court to force a party to use peremptory challenges on persons who should have been excused for cause, provided the party subsequently exhausts all of his or her peremptory challenges and an additional challenge is sought and denied.’ Hill v. State, 477 So. 2d 553 (Fla. 1985). To preserve the question, a party must show that as a result of such error, ‘an objectionable juror had to be accepted.’ See Trotter v. State, 576 So. 2d 691, 693 (Fla. 1990), citing Pentecost v. State, 545 So. 2d 861, 863 n.1 (Fla. 1989). See also Jones v. State, 660 So. 2d 291 (Fla. 2d D.C.A. 1995). Pursuant to Trotter, an objectionable juror is 1) ‘a specific juror whom [a party] otherwise would have struck peremptorily;’ and 2) who was actually seated on the jury and whom a party ‘either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.’ Id. at 863. See also Jones, 660 So. 2d at 293.” Sebring Associates, Ltd. v. Aumann, 673 So. 2d 875, 876 (Fla. 2d D.C.A. 1996).
2 Joiner v. State, 618 So. 2d 174, 176 (Fla. 1993); Morrell v. State, 24 Fla. L. Weekly D1617a (Fla. 2d D.C.A. July 9, 1999).
3 Brantley v. Snapper Power Equipment, 665 So. 2d 241, 243 (Fla. 3d D.C.A. 1995).
4 Madsen, Sapp, Mena, Rodriguez & Company, P.A. v. Leaman, 686 So. 2d 780, 782 (Fla. 4th D.C.A. 1997).
5 Coffee v. State, 699 So. 2d 299, 300 (Fla. 2d D.C.A. 1997).
6 Id.
7 See Brantley, 665 So. 2d at 243.
8 Jackson v. State,738 So. 2d 382 (Fla. 4th D.C.A. 1999).
9 Jackson v. State, 456 So. 2d 916, 919 (Fla. 1st D.C.A. 1984).
10 Newton v. South Florida Baptist Hospital, 614 So. 2d 1195, 1196 (Fla. 2d D.C.A. 1993), rev. denied, 621 So. 2d 1066 (Fla. 1993); see Schreidell v. Shoter, 500 So. 2d 228, 233 (Fla. 3d D.C.A. 1998), rev. denied, 511 So. 2d 299 (Fla. 1987). Compare Colvin v. Williams, 564 So. 2d 1249, 1250 (Fla. 4th D.C.A. 1990) (“It is the trial court’s responsibility to make a dispositive ruling on all objections or motions that are properly brought before it. We can hardly fault a litigant, once a proper objection has been lodged with the court, if the court’s response is something less than a clear ‘sustained’ or ‘overruled.’”), with LeRetilley v. Harris, 354 So. 2d 1213, 1214 (Fla. 4th D.C.A. 1978), cert. denied, 359 So. 2d 1216 (Fla. 1978) (“We choose to adopt the view that failure to secure a ruling on an objection waives it, unless the court deliberately and patently refuses to so rule.”).
11 Fleming v. Peoples First Financial Savings and Loan Association, 667 So. 2d 273, 274 (Fla. 1st D.C.A. 1995), rev. denied, 669 So. 2d 250 (Fla. 1996).
12 Schreidell v. Shoter, 500 So. 2d 228, 233 (Fla. 3d D.C.A. 1986), rev. denied, 511 So. 2d 299 (Fla. 1987).
13 Fla. Stat. §90.104(1)(b) (1997).
14 Fla. R. Civ. P. 1.450(a)–(b).
15 Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908, 910 (Fla. 1985). In order to offer the Florida Supreme Court the opportunity to change the current status of the law, the Second District Court of Appeal recently certified the following question as one of great public importance: “To preserve error, is a contemporaneous objection required for each instance of improper argument or can the issue be preserved by a motion for mistrial before the case is submitted to the jury?” Garbutt v. LaFarnara, 24 Fla. L. Weekly D2475a (Fla. 2d D.C.A. Oct. 29, 1999).
16 Hagen v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d D.C.A. 1996).
17 Ed Ricke and Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985).
18 Newton v. South Florida Baptist Hospital, 614 So. 2d 1195, 1196 (Fla. 2d D.C.A. 1993), review denied, 621 So. 2d 1066 (Fla. 1993).
19 See generally, L. 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).
20 Barth v. Khubani, 24 Fla. L. Weekly S466b (Fla. Oct. 7, 1999).
21 Id.
22 Id.
23 Id., quoting Colonial Stores, Inc. v. Scarborough, 355 So. 2d 1181, 1186 (Fla. 1977).
24 Fla. R. Civ. P. 1.470(b).
25 City of Orlando v. Birmingham, 539 So. 2d 1133, 1134–35 (Fla. 1989).
26 In Klepper v. J.C. Penney Company, Inc., 340 So. 2d 1170, 1171 (Fla. 4th D.C.A. 1976), the court stated: “We believe it will be helpful to remind the trial Bar of its responsibility to client and Bench alike to be attentive and alert during the jury charge. At the end of a trial it may happen that a judge who communicates with the jury and reads to them a long series of instructions would misread one, have an inadvertent slip of the tongue, or in a last moment reflection make some change in the previously adopted form of instruction. At such a time trial counsel has a special duty to his client and to the trial judge to read the instructions as the judge recites them and to aid in the prevention of the kind of error which occurred in the case sub judice by objecting to or pointing out the error.”
27 Vine v. Scarborough, 517 So. 2d 726, 728 (Fla. 3d D.C.A. 1987), rev. denied, 528 So. 2d 1183 (Fla. 1988).
28 Cowart v. Kendall United Methodist Church, 476 So. 2d 289, 290–91 (Fla. 3d D.C.A. 1985); Gould v. National Bank of Florida, 421 So. 2d 798, 802 (Fla. 3d D.C.A. 1982).
29 Id.
30 Howard v. Perez, 707 So. 2d 845, 847 (Fla. 2d D.C.A. 1998).
31 Perry v. Allen, 720 So. 2d 614, 616–17 (Fla. 5th D.C.A. 1998).
32 Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So. 2d 1283, 1285 (Fla. 1st D.C.A. 1993); rev. dismissed, 630 So. 2d 1100 (Fla. 1993); Honda Motor Company, Ltd. v. Marcus, 440 So. 2d 373, 375–76 (Fla. 3d D.C.A. 1983), rev. dismissed, 447 So. 2d 886 (Fla. 1984).
33 Aldana v. Winn-Dixie Stores, Inc., 517 So. 2d 729, 730 (Fla. 3d D.C.A. 1987).
34 Fla. R. Civ. P. 1.530.
35 Ruth v. Sorensen, 104 So. 2d 10, 15 (Fla. 1958); Scarfone v. Magaldi, 522 So. 2d 902, 903–04 (Fla. 3d DCA 1988), rev. denied, 531 So. 2d 1353 (Fla. 1988).
36 Rooney v. Lawrence E. Hannon, M.D., P.A., 732 So. 2d 408, 410 (Fla. 4th D.C.A. 1999).
37 Id. See Hargrove v. CSX Transportation, Inc., 631 So. 2d 345 (Fla. 2d D.C.A. 1994).
38 Fla. R. App. P. 9.110(b); Fla. R. App. P. 9.020(h).
39 Fla. R. App. P. 9.020(h)(1).
40 Id.
41 Bailey v. Mobile Home Park Realty, Inc., 579 So. 2d 198 (Fla. 2d D.C.A. 1991); Hatton v. Barnett Bank of Palm Beach County, 550 So. 2d 65 (Fla. 2d D.C.A. 1989).
42 Olson v. Olson, 704 So. 2d 208 (Fla. 5th D.C.A. 1998).
43 Potucek v. Smeja, 419 So. 2d 1192 (Fla. 2d D.C.A. 1982); Irwin v. Walker, 468 So. 2d 241 (Fla. 2d D.C.A. 1984).
44 Intercoastal Marina Towers, Inc. v. Suburban Bank, 506 So. 2d 1177 (Fla. 4th D.C.A. 1987), rev. denied, 518 So. 2d 1275 (Fla. 1987); Ramos v. State, 456 So. 2d 1297 (Fla. 2d D.C.A. 1984). See Talley v. Canal Indemnity Company, 558 So. 2d 1088, 1088–90 (Fla. 4th D.C.A. 1990) (Anstead, J., concurring).
45 Caughey v. Beller, 322 So. 2d 83, 86 (Fla. 2d D.C.A. 1975), cert. denied, 333 So. 2d 41 (Fla. 1976).
46 Morrison v. Bohne, 274 So. 2d 896, 897 (Fla. 2d D.C.A. 1973), cert. denied, 281 So. 2d 505 (Fla. 1973).
47 Centro Nautico Representacoes Nauticas, LDA. v. International Marine Co-op, Ltd., 719 So. 2d 967, 971 (Fla. 4th D.C.A. 1998), prohibition denied, 727 So. 2d 906 (Fla. 1999).
48 Fla. R. Civ. P. 1.530.

Gerald W. Pierce is a board-certified appellate practitioner from Ft. Myers. He has handled over 500 civil appeals before Florida’s First and Second district courts of appeal.

This column is submitted on behalf of the Trial Lawyers Section, Michael G. Tanner, chair, and D. Keith Wickenden, editor.

Trial Lawyers