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Florida Bar Journal

Principles and Pitfalls of Preservation of Error

Appellate Practice

Appellate courts are reactive, addressing only errors on matters actually ruled upon by the lower tribunal.1 & #x201c;In the absence of jurisdictional or fundamental error, it is axiomatic that it is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court.”2 Because appellate courts do not address matters in the first instance, a damaging blow to an otherwise powerful appellate argument is the trial counsel’s failure to preserve the argument for further review. Accordingly, preserving error is a critical component of the appellate process.

An appellate court’s reviewing role originated as part of the common law tradition and represents a fundamental distinction from trial courts. Requiring litigants to preserve error before the lower tribunal maintains the integrity of the judicial process by ensuring that the lower tribunal has the opportunity to correct errors. Despite the apparent simplicity of this principle, however, the method for preserving error varies based upon the nature of the proceeding and the procedural posture. Therefore, a litigant must be aware of the differences and handle such matters specifically and contemporaneously. While it is impossible to dictate exact procedures for every situation, this article outlines and examines certain methods of preserving matters for review in the civil context and highlights preservation principles and pitfalls.3

Preservation of error begins when a plaintiff files a complaint, setting forth allegations and legal claims that define the universe of litigation. To preserve a claim on appeal that a complaint does not state a cause of action, defendants must challenge the complaint’s sufficiency through a motion to dismiss at the trial level.4

On the other hand, when facing a motion to dismiss, parties must specifically identify any proposed amendment.5 Merely requesting the court to allow an amended complaint, without specifying the amendment, may not preserve a challenge to the trial court’s dismissal with prejudice.6

The Contemporaneous and Specific Objection
During trial, objections must be contemporaneous. The contemporaneous objection is one of the hallmarks of preservation because it maintains the trial court’s role as the principal arbiter of legal issues and the appellate court’s role as a court of review. As the Florida Supreme Court observed:

[T]he contemporaneous objection requirement [goes] to the heart of the common law tradition and the adversary system. It affords an opportunity for correction and avoidance in the trial court in various ways: it gives the adversary the opportunity either to avoid the challenged action or to present a reasoned defense of the trial court’s action; and it provides the trial court with the alternative of altering or modifying a decision or of ordering a more fully developed record for review.7

In addition to being contemporaneous, a trial objection must also be specific.8 “To be preserved for appeal, ‘the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’”9 An appellate court will not consider any ground for objection to evidence not presented to the trial court.10 While specific legal grounds must be raised, if an objection captures the “essence” of the argument, it may be sufficient to preserve error.11

Motions in Limine
If sensitive evidentiary issues will likely arise during trial, it is prudent to file a motion in limine to preemptively address such matters. Prior to 2003, a motion in limine would not, standing alone, automatically preserve review of a claim on appeal that the trial court erred by admitting the evidence challenged in the motion. Concomitantly, prior to 2003, a party who suffered exclusion of evidence in limine still needed to either proffer the evidence or attempt to introduce it at the critical phase during trial to preserve a claim that the trial court erred by excluding the evidence.12

A recent evidentiary amendment, however, may significantly reduce the number of steps necessary to preserve error related to admission of evidence. F.S. §90.104(1)(b)(2003). According to the amendment, if the trial court rules on an issue pertaining to admission of evidence in limine or during trial, any error related to the admission or exclusion of such evidence is preserved without any further attempts to introduce—or exclude—the specific evidence. As the amended statute provides: “If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”13

Although the statute appears to eliminate steps historically necessary to preserve error, as at least two courts have observed, the statute poses a potential trap for the unwary.

Depending on its interpretation, §90.104, as amended, will override an existing body of case authority regarding the appropriate way to preserve evidentiary objections.14 This raises a separation of powers issue and calls into question whether the legislature has the power to enact evidentiary requirements traditionally left to the judiciary. In Mallory v. State, 866 So. 2d 127 (Fla. 4th DCA 2004), the Fourth District Court of Appeal opined that if the foregoing amendment is deemed procedural, it would improperly encroach on the Florida Supreme Court’s rule-making authority.15 The court ruled that if the amendment is deemed a procedural rule, the Florida Supreme Court should adopt it, noting that the prior preservation rule may have “outlived its usefulness.”16

Conversely, the Fifth District Court of Appeal delivered a more foreboding perspective. In Crumbley v. State, No. 5D03-2326, 2004 WL 1228356 (Fla. 5th DCA June 4, 2004),the Fifth District analyzed the amendment and noted the traditional contemporaneous objection requirement.17 The court concluded that §90.104 addresses a purely procedural issue and that such matters are relegated to the Florida Supreme Court pursuant to Fla. Const. Art. V, §2(a).18 The Fifth District suggested that unless and until the Florida Supreme Court adopts the statute as a rule governing judicial procedure, litigants should not rely solely on a motion in limine to preserve evidentiary objections. The court’s dictasuggests that a party must continue to interpose a contemporaneous objection during trial or, on the other hand, attempt to introduce or proffer the evidence, notwithstanding a definitive ruling in limine.

Even if adopted, tactical issues may make the amendment impractical. The amendment purports to eliminate the need to make an evidentiary proffer or attempt to introduce evidence previously excluded in limine to preserve a party’s argument on appeal.19 An evidentiary proffer, however, allows both the trial and appellate courts to view the evidence within the context of the facts and law presented. Evidence in a vacuum may appear to be irrelevant or unduly prejudicial but when proffered at a critical point at trial, that same evidence may appear relevant and admissible, particularly if a party elicits previously unknown facts. The absence of the proffer may diminish an appellate court’s interpretation of the value of the evidence.20 Therefore, a litigant who seeks admission of evidence excluded pretrial may want to make an evidentiary proffer at the appropriate juncture during presentation of evidence, notwithstanding the pretrial ruling.21

Although not addressed by courts analyzing the statute, another potential problem posed by the amendment is the arguable ambiguity in the word “definitive.” Litigants may debate whether a trial court has made a “definitive” ruling on admissibility of evidence in order to challenge a claim that an evidentiary claim has been preserved. Furthermore, based on the Fifth District’s recent admonition that litigants should continue to invoke pre-amendment procedures to preserve evidentiary objections, if a trial court sustains an objection as to the admission of improper testimonial evidence, a litigant should request a curative instruction or seek a mistrial.22

The Standing Objection
Under the 2003 amendment to §90.104, once the trial court makes a definitive ruling regarding the introduction of evidence, it is possible no further objections are required to preserve the issue. Because of the uncertainty surrounding the amendment, however, and to create an airtight record, the better practice may be to object each time a party attempts to introduce certain evidence. Nonetheless, recognizing the value of allowing a trial to flow unimpeded by constant objections, certain courts have authorized the standing objection even before the 2003 amendment, holding that a party need not continuously object to the same evidence as the proceeding continues.23 Relying on the Third District’s decision in Webb v. Priest, 413 So. 2d 43 (Fla. 3d DCA 1982), the Second District reiterated that a party need not continuously object in what will be a clearly futile gesture.24 In certain instances, objection by way of motion in limine, followed by a timely objection when the evidence is first introduced, preserves the issue for appeal without subsequent, successive objections.

Preservation of Errors
Jury Selection
To preserve error in connection with jury selection, a litigant must challenge the subject juror for cause, exhaust all peremptory strikes, and then request an additional peremptory strike.25 Additionally, a party must generally renew voir dire objections before a jury is sworn.26

Jury Instructions and Verdict Form
To preserve a claim that the trial court should have instructed the jury on a specific element of a claim or defense, a party must present the proposed instruction during the charge conference and bring the requested instruction to the lower court’s attention.27 Merely filing the requested instruction is insufficient. Moreover, a litigant opposing a jury instruction must interpose a specific objection.28 A contemporaneous objection to a jury instruction is a prerequisite to moving for a new trial on that same basis.29

Errors in the verdict form are also subject to preservation principles. The two-issue rule precludes a litigant from challenging errors in a general jury verdict form if the litigant did not propose a special verdict form with explanatory instructions before the charge conference.30 “Where there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.”31 Under this theory, if a general verdict form is submitted to the jury, and there exist multiple theories of liability, an error tainting one issue will not constitute grounds for reversal.32 As the rule suggests, the two-issue rule only applies if more than one theory of liability is presented to the jury.33

Evidence Presented at Trial and Damages
To preserve a challenge to the sufficiency of the evidence presented at trial, a defendant must move for a directed verdict at the close of the plaintiff’s case and then renew the motion again at the close of all the evidence. Alternatively, the Third District recently held that a motion for a new trial challenging the sufficiency of the evidence to support the jury’s verdict also preserves this error for review.34 A party who does not challenge the sufficiency of the evidence below through one of the foregoing will be precluded from raising this issue on appeal. In a nonjury proceeding, the defendant must move for an involuntary dismissal of the plaintiff’s claim to preserve a challenge to the sufficiency of the evidence presented.35

With respect to a challenge to damages, a party can file a motion for remittitur or additur or a motion for new trial as to damages. The Third District has required a party to propose an alternative damages award for the remittitur motion to be proper and, ostensibly, to preserve the issue for appellate review.36

Closing Argument
Perhaps the most elusive preservation issue involves improper closing arguments. Historically, courts differed in their interpretation of the method for preserving the right to challenge an improper closing on appeal.37 Although most courts required a contemporaneous objection, courts differed as to whether certain closing comments could be so damaging so as to constitute fundamental error and, therefore, required no objection.38

In 2000, the Florida Supreme Court sought to crystallize the method for preserving review of improper closings in Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010 (Fla. 2000). Pursuant to Murphy, an objection to improper closing comments is still required, but even without a timely objection, a party may seek review based on improper closing comments by seeking a new trial and demonstrating that the closing argument was: improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in the justice system requires a new trial.39 Certain courts continue to struggle with the contemporaneous objection requirement in connection with an allegedly improper closing.40 This is because Murphy did not completely close the door on review in the absence of an objection if a party can demonstrate that the harm caused by the closing could not be cured; however, the opening, if any, is narrow. The best course of action is to object contemporaneously during a perceived improper closing. As one court recently opined, “Murphy’slesson to trial counsel is clear—a remedy will almost always be tied to contemporaneous objection.”41

Even if initially preserved, a right to seek review of an order denying mistrial can thereafter be waived.42 In Robinson v. Bucci, 828 So. 2d 478 (Fla. 2d DCA 2002), the court concluded that the appellant waived his right to a mistrial by withdrawing an otherwise timely objection and motion for mistrial.“[Appellant] took a calculated risk by inviting the court to proceed with the trial even though it had been tainted. Having gambled and lost when the jury returned an adverse verdict, he cannot now be heard to ask belatedly for a new trial based on the erroneous admission of the. . . evidence.” Id. (internal quotation omitted).

Nonetheless, “[a] motion for mistrial, coupled with a request that the court reserve ruling until the jury returns a verdict does not constitute a waiver.”43 Parties retain the right to seek a “conditional” mistrial, so long as they clearly indicate an intent to move for a mistrial if the trial court intends to wait for the jury to return a verdict.44 A party does not preserve its mistrial argument, however, by failing to request one when confronted with the possibility that a trial court will immediately rule, rather than wait for the verdict.45 Requiring a party to actually move for a mistrial, even if a ruling is delayed until the jury renders a verdict, forces the moving party to commit to a position, while empowering the trial judge first to allow the jury to return a verdict that may obviate the motion. This prevents a party from straddling the proverbial fence on the issue – taking his or her chances with the jury and then seeking a mistrial if the verdict is unfavorable. Moreover, this procedure deters litigants from engaging in manipulative conduct to sully trial proceedings by giving the lower court the power to discern whether the jury verdict nullifies improper conduct, thereby rendering the mistrial motion moot.46

Inconsistent Verdicts
An inconsistent verdict is one that contains two or more competing findings of fact that are mutually exclusive and cannot be reconciled.47 To preserve a claim that the jury rendered an inconsistent verdict, one must object before the jury is discharged.48 This allows the lower tribunal to reinstruct the jury and send it back for further deliberations.49 “The law is clear that, where no objection is made to a defective verdict form or inconsistent verdict before the jury is discharged, any defect or inconsistency is waived.”50

On the other hand, courts have reviewed challenges to verdicts alleged to be both inadequate and inconsistent when based on answers to special interrogatories, without requiring a contemporaneous objection to the verdict.51 Additionally, the Fourth District Court of Appeal held that a mathematical error is not an inconsistent verdict and a party need not object before the jury is discharged to preserve the error, stating that “[i]f there are no math experts on the jury, it is quite probable that the verdict form will contain some type of calculation error.”52

Fundamental Error
Fundamental error may be challenged on appeal even absent a contemporaneous objection. In criminal cases, fundamental error is the term used to describe those errors that undermine confidence in the outcome of a trial and go to the very foundation of a case.53 Fundamental error has been equated with a denial of due process and impacts the validity of a trial to the extent that a guilty verdict would not have been obtained but for the error.54

Courts in civil cases have found the award of judgments which are based on nonexistent rights and lack any foundation to constitute fundamental error.55 Furthermore, following Murphy, an improper closing argument that is totally incurable may be deemed fundamental error. The Murphy court concluded that a “closing argument that appeals to racial, ethnic, or religious prejudices is the type of argument that traditionally fits within this narrow category of improper argument requiring a new trial even in the absence of an objection.”56

Preservation on Appeal
While the topic of preservation of error may seem irrelevant once a litigant enters the appellate forum, certain preservation principles do apply. Conceptually, preservation and waiver go hand in hand, and appellate litigators must preserve issues for the appellate court’s consideration. For example, an argument not advanced in an initial brief cannot be made in a reply brief or during oral argument.57 Moreover, appellate courts require clear presentation of arguments. Merely raising a point in a footnote or without separating the argument clearly may not appropriately present the argument for the court’s consideration.58 Whether these principles are deemed preservation or waiver (or a combination of both), they should be followed to secure consideration of arguments on appeal.

Preserving error for review at the trial level is a critical component of appellate proceedings. If an error is not preserved or fundamental, a party cannot raise the argument on appeal. Accordingly, practitioners must be vigilant to ensure that claimed errors are preserved and to avoid the pitfalls of preservation. q

1 Sierra by Sierra v. Public Health Trust of Dade Cty., 661 So. 2d 1296 (Fla. 3d D.C.A. 1995).
2 Abrams v. Paul, 453 So. 2d 826, 827 (Fla. 1st D.C.A. 1983); see Lipsig v. Ramlawi, 760 So. 2d 170, 192–93 (Fla. 3d D.C.A. 2000) (noting general principle that court declines to address issue not preserved for appellate review).
3 Specific preservation issues unique to criminal proceedings are outside the scope of this article.
4 Lester v. Arb, 658 So. 2d 583 (Fla. 3d D.C.A. 1995) (rejecting such a challenge raised for the first time on appeal and stating, id. at 585 n.3, “‘It is the declared policy of this court to confine the parties litigant to the points raised and determined in the court below, and not to permit the presentation of points, grounds, or objections for the first time in this court, when the same might have been cured or obviated by amendment, if attention had been called to them in the trial court.’”) (quoting Hartford Fire Ins. Co. v. Hollis, 50 So. 985 (Fla. 1909)).
5 Kozich v. DeBrino, 837 So. 2d 1041, 1043 (Fla. 4th D.C.A. 2003).
6 Id.
7 Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010, 1017 (Fla. 2000).
8 The recent amendment to §90.104(b) does not supplant the obligation to object on a specific basis to preserve review on that legal ground. See text infra; Chamberlain v. State, No. SC02-1150, 2004 WL 1348732 (Fla. June 17, 2004) (decided after the amendment and maintaining the requirement that an objection be specific to appeal a decision on that basis).
9 Spann v. State, 857 So. 2d 845, 852 (Fla. 2003) (quoting Rodriguez v. State, 609 So. 2d 493, 499 (Fla. 1992)).
10 Mizell Live Stock Co. v. J.J. McCaskill Co., 51 So. 547 (Fla. 1910); Pittman v. State, 41 So. 385 (Fla. 1906); Sunland Hosp. v. Garrett, 415 So. 2d 783 (Fla. 1st D.C.A. 1982).
11 Williams v. State, 414 So. 2d 509 (Fla. 1982) (holding that objection is preserved if its essence is clear).
12 Correll v. State, 523 So. 2d 562, 566 (Fla.), cert. denied, 488 U.S. 871 (1988).
13 The amendment is consistent with the recent amendment to Fed. R. Evid. 103.
14 See, e.g., Maharaj v. State, 597 So. 2d 786, 790 (Fla. 1992); Correll v. State, 523 So. 2d 562 (Fla. 1988); Shaw v. State, 824 So. 2d 265, 268 (Fla. 4th D.C.A. 2002).
15 Mallory, 866 So. 2dat 128. Because none of the parties raised the constitutional issue, however, the court did not address it.
16 Id. at 127.
17 Crumbley, 2004 WL,at * 2.
18 Id.
19 Brantley v. Snapper Power Equip., 665 So. 2d 241, 243 (Fla. 3d D.C.A. 1995).
20 Phillips v. State, 351 So. 2d 738, 740 (Fla. 3d D.C.A. 1977) (noting that “the primary purpose” of the proffer is to include the proposed evidence in the record so that the appellate court can determine whether the trial court’s ruling was correct).
21 Additionally, because of the value for appellate review, the trial court’s refusal to allow a proffer will likely continue to be reversible error despite the amendment to §90.104, unless the appeal court can clearly evaluate the quantum and character of the evidence or unless the error is harmless. Courts have held that a proffer is unnecessary if it is established that it will be a futile act, the evidence sought to be introduced is rejected as a class, or if the court indicates a proffer is not necessary. O’Shea v. O’Shea, 585 So. 2d 405 (Fla. 1st D.C.A. 1991).
22 Grau v. Branham, 761 So. 2d 375, 378 (Fla. 4th D.C.A. 2000) (holding that preservation required a curative instruction and/or motion for mistrial after the trial court sustained an objection directed toward inappropriate questioning).
23 Liberatore v. Kaufman, 835 So. 2d 404 (Fla. 4th D.C.A. 2003); Tucker v. Allstate Ins. Co., 842 So. 2d 1029 (Fla. 2d D.C.A. 2003).
24 Tucker, 842 So. 2d at 1030.
25 Van Poyck v. Singletary, 715 So. 2d 930, 931 (Fla. 1998) (finding reversible error where a challenge for cause is improperly denied, defendant then exhausts peremptory challenges on venire persons who should have been dismissed for cause, and his request for additional peremptory challenges is denied); Bell v. State, 870 So. 2d 893, 894 (Fla. 4th D.C.A. 2004); Taylor v. State, 796 So. 2d 570, 572 (Fla. 2d D.C.A. 2001).
26 State v. Neil, 457 So. 2d 481 (Fla. 1984), and State v. Slappy, 522 So. 2d 18 (Fla. 1988); contra Gonzalez v. Martinez, No. 3D03-918, 2004 WL 1336404, * 1 (Fla. 3d D.C.A. June 16, 2004) (declining to find waiver of claimed error occurring during jury selection “where the trial court has repeatedly and unequivocally stated that it would not allow backstriking”).
27 Concept, L.C. v. Gesten, 662 So. 2d 970, 972 n.1 (Fla. 4th D.C.A. 1995) (“[W]e point out that to preserve the matter for appeal rule 1.470(b), Florida Rule of Civil Procedure, contemplates not simply the filing of the requested charge but that the requested charge be brought to the court’s attention.”).
28 Lane v. State, 867 So. 2d 539, 541 (Fla. 1st D.C.A. 2004). In criminal cases, the traditional rule in Florida treated the failure to instruct the jury on an essential element of an offense as fundamental error only when the omission of a specific instruction is pertinent or material to what the jury must consider to convict the accused. Johnson v. State, 833 So. 2d 252 (Fla. 4th D.C.A. 2002).
29 Schorr v. Thaw, 464 So. 2d 1240, 1241 (Fla. 3d D.C.A. 1985) (reversing trial court’s order granting a new trial based on failure to instruct on a particular statute where the asserted error was not preserved for appeal).
30 Whitman v. Castlewood Intern. Corp., 383 So. 2d 618 (Fla. 1980).
31 Grenitz v. Tomlian, 858 So. 2d 999, 1006 (Fla. 2003) (internal quotation omitted).
32 Id.
33 Barth v. Khubani, 748 So. 2d 260, 262 n.7 (Fla.1999); cf. Grenitz, 858 So. 2d at 1006 (noting that two-issue rule will not apply if there are multiple defenses relating to different elements of proof necessary for the plaintiff to defeat to prevail upon one cause of action).
34 See J.T.A. Factors, Inc. v. Philcon Servs., Inc., 820 So. 2d 367, 371 (Fla. 3d D.C.A. 2002) (holding that motion for new trial preserved challenge to sufficiency of evidence on appeal notwithstanding defendant’s failure to renew the motion for directed verdict at the close of all of the evidence). See also Industrial Affiliates, Ltd. v. Testa, 770 So. 2d 202 (Fla. 3d D.C.A. 2000) (noting general principle that defendant must move for a directed verdict and then renew the motion after the presentation of the evidence; citing Fla. R. Civ. P. 1.480(b)).
35 Tillman v. Baskin, 260 So. 2d 509 (Fla. 1972); Boyd v. Boyd, 874 So. 2d 696, 698–99 (Fla. 5th D.C.A. 2004).
36 See Hendry v. Zelaya, 841 So. 2d 572, 575 (Fla. 3d D.C.A. 2003) (concluding that motion for remittitur that did not provide an alternative damages sum would not be accepted on review but would instead be treated as a motion for new trial).
37 Brooks v. State, 762 So. 2d 879, 898 (Fla. 2000).
38 See generally Murphy v. International Robotic Sys., Inc., 766 So. 2d 1010 (Fla. 2000).
39 Id. at 1028-30.
40 In Telemundo Network, Inc. v. Spanish Television Servs., Inc., 812 So. 2d 461 (Fla. 3d D.C.A. 2002), the court analyzed whether a contemporaneous objection was required to preserve review. A sharply divided court affirmed the denial below of a new trial, concluding that Murphy required a contemporaneous objection to improper closings. Chief Judge Schwartz, dissenting, opined that no contemporaneous objection was required to grant a new trial if an improper closing meets the Murphy four-part test. Id. at 470; see Thomson v. Hodson, 825 So. 2d 941, 947 (Fla. 1st D.C.A. 2002) (recognizing extreme difficulty of showing that unobjected-to closing argument would have been incurable); Garbutt v. LaFarnara, 807 So. 2d 83 (Fla. 2d D.C.A. 2001) (holding that notwithstanding contemporaneous objection, a motion for mistrial immediately after closing argument preserved error for review without consideration of Murphy four-part test).
41 Bocher v. Glass, 874 So. 2d 701, 704 (Fla. 1st D.C.A. 2004).
42 Robinson v. Bucci, 828 So. 2d 478 (Fla. 2d D.C.A. 2002).
43 MCI Express, Inc. v. Ford Motor Co., 832 So. 2d 795, 798 (Fla. 3d D.C.A. 2002) (citing Ed Ricke & Sons, Inc. v. Green and Through Swan, 468 So.2d 908, 910 (Fla. 1985)).
44 Id.
45 Saxon v. Chacon, 539 So.2d 11, 12 (Fla. 3d D.C.A. 1989) (concluding that a party’s claim for a new trial based on erroneous admission of evidence was not preserved where the party failed to move for a mistrial on the same ground when invited to do so by the trial court).
46 Ricks v. Loyola, 822 So.2d 502, 505 (Fla. 2002).
47 “Where the findings of a jury’s verdict in two or more respects are findings with respect to a definite fact material to the judgment such that both cannot be true and, therefore, stand at the same time, they are in fatal conflict.” Deklyen v. Truckers World, Inc., 867 So. 2d 1264, 1266 (Fla. 5th D.C.A. 2004) (citing Crawford v. DiMicco, 216 So.2d 769, 771 (Fla. 4th D.C.A. 1968)).
48 Deklyen, 867 So. 2d at 1266.
49 Cocca v. Smith, 821 So.2d 328, 330 (Fla. 2d D.C.A. 2002).
50 Gup v. Cook, 549 So.2d 1081, 1083-84 (Fla. 1st D.C.A. 1989) (finding appellants not entitled to new trial on damages, where jury awarded “$0” for future medical expenses but awarded $500,000 for “future medical expenses reduced to present value,” because appellants failed to object to “such inconsistency” when verdict rendered), quashed in part on other grounds, 585 So. 2d 926 (Fla. 1991); Moorman v. American Safety Equip., 594 So.2d 795, 799 (Fla. 4th D.C.A. 1992) (explaining that appellants waived inconsistency argument by failing to object to verdict before jury discharged).
51 See Allstate Ins. Co. v. Manasse, 681 So. 2d 779, 783 (Fla. 4th D.C.A. 1996), quashed on other grounds, 707 So. 2d 1110 (Fla. 1998); Allstate Ins. Co. v. Daugherty, 638 So. 2d 612, 613 n.1 (Fla. 5th D.C.A. 1994) (reviewing challenge to inadequate verdict despite absence of objection prior to jury’s discharge, while noting that verdict was also internally inconsistent).
52 McElhaney v. Uebrich, 699 So.2d 1033, 1036 (Fla. 4th D.C.A. 1997).
53 Jassan v. State, 749 So. 2d 511, 512 (Fla. 2d D.C.A. 1999).
54 Kilgore v. State, 688 So. 2d 895, 898 (Fla. 1996).
55 Security Bank, N.A. v. BellSouth Adver. & Pub. Corp., 679 So.2d 795, 803 n.11 (Fla. 3d D.C.A. 1996).
56 Murphy, 766 So. 2d at 1030.
57 Ramos v. Philip Morris Cos., Inc., 743 So. 2d 24, 29 (Fla. 3d D.C.A. 1999) (noting that appellant waived argument not raised in initial brief notwithstanding motion related to same legal issue).
58 R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 41 n.1 (Fla. 3d D.C.A. 1996).

Jack R. Reiter is board certified in appellate practice and heads the appellate department at the national law firm of Adorno & Yoss, P.A. He graduated from the University of Florida College of Law with high honors and is vice chair of the Florida Appellate Court Rules Committee. He has extensive experience handling appellate and original writ proceedings at state, federal, and administrative levels.
This column is submitted on behalf of the Appellate Practice Section, John G. Crabtree, chair, and Jacqueline E. Shapiro, editor.

Appellate Practice