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The Appellate Decision-Making Process

Appellate Practice

The appellate practitioners spend hours preparing briefs, and when available, oral arguments.

When the “curtain closes,” the advocates leave the case with the court. Counsel may feel his or her work is done, and it is. But thinking about how appellate judges decide cases may assist in presenting the appeal and, for appellants, analyzing whether it stands a real chance of success. This article examines aspects of the appellate decision-making process.

Functions of the Appellate Court

To appreciate the appellate court’s approach in reviewing claimed errors, it helps to recall that appellate courts serve two primary functions. First, they review the decisions of lower tribunals for legal correctness. Second, they announce, clarify, and harmonize the rules of law which govern the affairs of those not parties to the particular reviews they undertake.

Appellate counsel who appreciate these core functions should be able to advance their clients’ cases more effectively, especially by selecting potentially meritorious issues to appeal. Selecting issues involves determining the applicable standard of review for potential issues, evaluating the strengths of the arguments that error has occurred, considering whether the error caused harm, and determining whether the error was preserved below.

Does the Court Have Jurisdiction?
The appellate court’s first concern is whether it has jurisdiction over the case. There can be several aspects to this inquiry. Is the case within the court’s prescribed authority to hear under the Florida Constitution and Florida Rules of Appellate Procedure?1 For most final appeals this should be straightforward, but whether a court has jurisdiction to consider a nonfinal order or certiorari jurisdiction over such an order can be more complicated. When a nonfinal order does not fall within the clear wording of Florida Rule of Appellate Procedure 9.130, counsel should consider citing case law on the court’s ability to review such orders. Staff attorneys are instructed to note the jurisdictional basis of an appeal, certiorari, or petition for an original writ in their memoranda to the court or to the panel assigned to the case.

A second level of jurisdictional analysis considers if the appeal is timely filed. Failing to file the notice of appeal within 30 days of rendition is fatal for state court appeals, no matter how meritorious the case might have been.2 Appellate courts look to determine if rendition has been tolled by an authorized and timely served motion. Protecting the client’s appellate rights requires understanding the timing requirements for post-trial motions, because only timely motions are effective in postponing rendition.

Appellate courts also consider if a case has become moot. Article III of the U.S. Constitution limits the jurisdiction of federal courts to “cases or controversies.” Thus, they lack jurisdiction if a case has become moot during the litigation.3

Florida courts generally decline to decide moot cases, but based on policy reasons, rather than a lack of jurisdiction (perhaps because Florida’s constitution does not contain a “case or controversy” clause).4 Florida decisions that are moot, however, do not destroy the court’s jurisdiction when the questions are of great public importance or are likely to recur.5

Closely related to jurisdictional concerns is the question of whether a “party” has standing to bring an appeal. Save Anna Maria, Inc. v. Department of Transportation, 700 So. 2d 113 (Fla. 2d DCA 1997), discusses two lines of Florida case law on standing: One holding a party cannot appeal an order in its favor, and another holding it can appeal if it is aggrieved by some aspect of the order. Other standing issues can include whether a person or entity really became a party to the litigation, and when nonparties can participate in an appeal.6

Preserved or Fundamental Error
If the appellate court has jurisdiction, it will likely next consider if the alleged errors were preserved below. One of the basic principles of appellate practice is that to present an error to an appellate tribunal, the complaining party must have objected or otherwise brought the error to the attention of the lower tribunal and obtained a ruling. The preservation of error rule developed at common law is a part of the adversarial system. Often referred to as the “contemporaneous objection rule,” it is intended to afford the lower tribunal an opportunity to correct errors. Yet, like many rules of law, there are exceptions.7

If a party failed to preserve an error below, it may still persuade the appellate court to consider the point under the fundamental error doctrine. The Florida Supreme Court has stated that to be fundamental, an error must go to the foundation of the case or the merits of the cause of action or it must be a denial of due process. It has cautioned that fundamental error applies only in rare cases.8 That said, there are cases finding fundamental error in different contexts.9

The Florida Supreme Court has recognized another exception to the contemporaneous objection rule involving constitutional challenges, as illustrated in Cantor v. Davis, 489 So. 2d 18 (Fla. 1986). The petitioners asserted a statute was unconstitutional both on its face and as applied by the particular facts of the case. The trial court ruled the statute to be facially unconstitutional, and consequently the district court never reached the issue of the constitutional application of the statute. The Supreme Court held that because the petitioners did not have a realistic opportunity to argue the as-applied challenge in the district court, they should not be precluded from raising the unconstitutional application question before the Supreme Court.

Harmful or Harmless Error
If the appellate court determines an issue has been preserved for review, it must decide if the claimed error was harmful or harmless. At one point in English jurisprudence, any error that the appellant preserved required a new trial, no matter how insignificant the error.10

The Florida Supreme Court has long recognized the principle that an appellate court will not reverse a case if it concludes the alleged error did not affect the result — namely, it was harmless.11 F.S. §59.041 is one of the few statutes directly addressing appellate practice. It requires an appellate court find “the error complained of has resulted in a miscarriage of justice.”

F.S. §924.33 is the harmless error statute that applies exclusively to criminal appeals. It provides that an error in a criminal case is not harmful unless it injuriously affected the substantial rights of the appellant. But constitutional principles come into play in applying this statute. In reviewing a criminal appeal, the court must first determine whether an error is a per se error, i.e., one that requires a reversal even if the court considers the error harmless. Denial of counsel is an example of per se reversible error. In State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986), the Florida Supreme Court held that the harmless error test, as set forth by the U.S. Supreme Court in Chapman v. California, 386 U.S. 18 (U.S. 1967), requires that the state, as beneficiary of a constitutional error, must establish beyond a reasonable doubt that an error complained of did not contribute to a defendant’s conviction.

It might seem that an appellate court would determine whether a ruling was error before considering if it was harmful or harmless. In some situations, however, it might be easier to decide the alleged error was not harmful, and then the court does not need to reach what might be a more difficult analytical question on the merits.

Standards of Review
Appellate judges have commented on the importance of the standard of review in deciding issues.12 Since Florida Rule of Appellate Procedure 9.210 was amended in 2001 to require the briefs to include the standard of review applicable to each issue, appellate court opinions have increasingly focused on the standards of review. Florida cases identify three general categories of the standards for appellate review for trial court and agency litigation: 1) “abuse of discretion” for discretionary rulings by the trial judge;13 2) “competent substantial evidence” or “rational basis” (for reviewing a jury verdict) and “clearly erroneous” (for reviewing a trial judge’s fact findings);14 and 3) “plenary” or “de novo” for rulings on questions of law.15

Most courts and practitioners would consider the difficulty in obtaining a reversal as increasing as the standard moves from three to one above. However, at least one author argues the appellant stands a better chance of obtaining a reversal under an abuse of discretion standard than under the standards for obtaining a “factual” reversal.16

Sometimes questions on appeal involve more than one standard of review. Instrumentation Services, Inc. v. Data Management Associates, Inc., 708 So. 2d 1018 (Fla. 4th DCA 1998), held abuse of discretion is the standard of review for a motion to transfer or dismiss for improper venue. Yet, it is not uncommon that such an issue involves mixed questions of law and fact. PricewaterhouseCoopers, LLP v. Cedar Resources, Inc., 761 So. 2d 1131 (Fla. 2d DCA 1999), is an example of a decision in which the Second DCA articulated three different standards that may be applicable to the review of a venue issue. The court stated that a trial court’s decision to transfer venue for convenience of the parties is ordinarily reviewed under an abuse of discretion standard. But in contrast, a trial court’s factual decision to transfer venue based on the impropriety of the plaintiff’s venue selection is reviewed for whether the court’s factual decision is supported by competent, substantial evidence, and the court’s legal conclusion is reviewed de novo. As this suggests, counsel often needs to look beyond the nature of the ruling and instead consider its basis.

Likewise, in criminal appeals, different standards may be applicable to an issue on appeal. For example, in review of a trial court’s ruling on a motion to suppress evidence, the findings of fact are reviewed based on competent, substantial evidence standard, whereas application of the law is reviewed de novo.

How Courts Apply the Law and Evaluate Claims of Error
Appellate courts as institutions look to prior decisions for guidance on evaluating claimed errors. All courts are bound by the decisions of the U.S. Supreme Court on issues governed by the U.S. Constitution.17 Florida’s district courts of appeal must follow the precedents of the Florida Supreme Court. Staredecisis is a common law doctrine that requires adherence to precedent. But a precedent attaches to a detailed set of facts. Thus, an appellate court may consider whether a material difference in the facts allows it to depart from or decline to follow an established precedent. Moreover, because the DCAs in Florida are final in most instances, they have a unique opportunity to develop the decisional law. While it is clear that the DCAs must follow precedent, the DCAs have developed considerable law for cases in which precedent from the Florida Supreme Court is lacking.18

District courts of appeal must follow Florida Supreme Court precedents even though they may think the law should be or would be changed by the Supreme Court today.19 One district court of appeal is not bound by the decision of another.20 A three-judge panel of a DCA will not overrule or retreat from a prior decision of that DCA, but it could ask the court to consider the matter en banc.21 When there has been a prior appeal or prior litigation between parties, the law-of-the-case doctrine or the issue preclusion doctrines of res judicata and collateral estoppel may apply.22

Questions on which law to apply can arise when the law changes based on appellate decisions, or amendments to the statutes, rules, and even the Florida Constitution. When an appellate decision changes the law, an appellate court generally applies the law in effect at the time of its decision, rather than the law in effect when the lower tribunal rendered its decision.23

When a statute is clear, courts consider the statute’s plain and ordinary meaning unless it leads to an unreasonable result or a result clearly contrary to legislative intent.24 If, however, the statutory language is unclear, courts apply rules of statutory construction and explore legislative history to resolve ambiguities and determine legislative intent. To accomplish this, courts consider the legislative history of the statute’s enactment amendment and frequently are guided by the administrative construction of a statute.25

Appellate courts often apply the rule of lenity in interpreting criminal statutes. The rule holds that in construing a criminal statute that is ambiguous as to punishments, the court resolves the ambiguity in favor of the more lenient punishment.26

Other Considerations Concerning Error
As with fundamental error issues, case law may assist in determining whether certain conduct or rulings were errors. If so, case law can assist in determining whether they were per se errors, harmful errors that require reversal in the particular case, or harmless errors.27 Even when errors standing alone are harmless, appellate courts sometimes conclude the errors may be so numerous as to warrant a reversal under the doctrine of cumulative error.28

Akin to preservation questions, if the appellant fails to provide a transcript in an appeal from an evidentiary matter, the appellate court will affirm absent a clear showing of error on the face of the record.29

In our common law system, the facts are critical. Appellate courts consider if a prior decision applies as a precedent, or if it does not because of material differences in the facts. Judges may consider if improper evidence became a “feature of the trial,” particularly when it was mentioned in opening statement or closing argument.

The Collegial Process
Appellate courts employ a collegial process to make decisions. Normally an odd number of judges decide a case, so there will be a majority that can formulate a decision.30 The court or the panel typically makes a preliminary decision in conference and a judge is assigned to write the majority opinion. In cases in which the judges have different views, the majority opinion and any dissenting opinion may go through several iterations as they circulate for comments.

Judges are motivated in their decision making to fairly resolve the dispute between the parties according to the law, to produce a decision that is technically correct from a jurisprudential standpoint, and to consider the implications of a decision to the public in the future conduct of their affairs. Considering these factors may help counsel shape their arguments.

Counsel for both sides in an appeal can enhance their clients’ chances by appreciating the appellate court’s decision-making process. This includes a realization of the core functions of an appellate court, considering jurisdictional and preservation issues, the standards of review, and how courts evaluate whether asserted errors are harmful or harmless.

1 Fla. Const., art. V, §3(b) and Fla. R. App. P. 9.030(a) describe the Florida Supreme Court’s jurisdiction. Fla. Const, art. V, §4(b) and Fla. R. App. P. 9.030(b) spell out the jurisdiction of district courts of appeal. Fla. Const., art. V, §5(b) and Fla. R. App. P. 9.030(c) address the circuit courts’ appellate jurisdiction.
2 The state must file the notice of appeal within 15 days in a criminal case. Fla. R. App. P. 9.140(c)(3).
3 See, e.g., Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592, 98 L. Ed. 2d 686 (U.S. 1988); Lynch v. Baxley, 744 F.2d 1452 (11th Cir. 1984). As occurred in Honig and Lynch, federal case law recognizes an exception permitting courts to consider cases that would otherwise be moot when they are capable of repetition yet evading review.
4 See Merkle v. Guardianship of Jacoby, 912 So. 2d 593 (Fla. 2d D.C.A. 2005).
5 See, e.g., Enterprise Leasing Co. v. Jones, 789 So. 2d 964 (Fla. 2001).
6 See, e.g., K.P. Meiring Const., Inc. v. Northbay I & E, Inc., 761 So. 2d 1221 (Fla. 2d D.C.A. 2000) (stating that a surety is a proper party to appeal the trial court’s refusal to stay an action in favor of arbitration, even though it would not be a party to the arbitration because the surety would be bound by the arbitration result); State, Dep’t of Revenue v. Pough, 723 So. 2d 303 (Fla. 2d D.C.A. 1998)(discussing when an individual may have standing to seek certiorari review of an order when not a party below). The standing to appeal an administrative agency order is determined by the Administrative Procedure Act, which requires that the appellant be “adversely affected by the final agency action.” Fla. Stat. §120.68(1); Melzer v. Fla. Dep’t of Community Affairs, 881 So. 2d 623 (Fla. 4th D.C.A. 2004).
7 The rule that an appellant may not raise issues or objections for the first time on appeal applies to substantive issues and procedural irregularities. E.g., Dober v. Worrell, 401 So. 2d 1322 (Fla. 1981); Allstate Ins. Co. v. Gillespie, 455 So. 2d 617 (Fla. 2d D.C.A. 1984). In F.B. v. State, 852 So. 2d 226 (Fla. 2003), the court said, that with two exceptions, a motion or objection must be specific to preserve a claim of insufficiency of the evidence for appellate review. The exceptions it noted were: 1) In death penalty cases, the court is required to review the sufficiency of the evidence to support the conviction (See Fla. R. App. P. 9.140(i)); and 2) when the evidence is insufficient to show that a crime was committed.
8 E.g., Ray v. State, 403 So. 2d 956 (Fla. 1981); Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970).
9 See, e.g., Murphy v. Int’l Robotic Sys., Inc., 766 So. 2d 1010, 1030 (Fla. 2000)(Closing argument that appeals to racial, ethnic or religious prejudices may be raised post-trial absent a contemporaneous objection.); Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So. 2d 1231 (Fla. 1st D.C.A. 1995)(adequate notice is a fundamental element of the right to due process that could be raised on appeal, reversing damages awarded in a default judgment for claims not pled.); Norville v. Bellsouth Advertising & Publishing Corp., 664 So. 2d 16 (Fla. 3d D.C.A. 1995)(judgment entered against a nonparty); Stevens v. Allegro Leasing, Inc., 562 So. 2d 380 (Fla. 4th D.C.A. 1990)(trial court applied the wrong version of a statute that had been amended.).
10 See, e.g., State v. DiGuilio, 491 So. 2d 11 29 (Fla. 1986).
11 See, e.g., Randall v. Parramore, 1 Fla. 409 (1847).
12 R. Elligett & J. Scheb, Appellate Standards of Review – How Important Are They?, 70 Fla. B. J. 33 (Feb. 1996).
13 See, e.g., Sims v. Brown, 574 So. 2d 131 (Fla. 1991).
14 See, e.g., Helman v. Seaboard Coast Line R.R. Co., 349 So. 2d 1187 (Fla. 1977); Avery Dev. Corp. v. Village by the Sea Condo. Apartments, Inc., 567 So. 2d 447 (Fla. 4th D.C.A. 1990).
15 D’Angelo v. Fitzmaurice, 863 So. 2d 311 (Fla. 2003).
16 G. Somerville, Standards of Appellate Review, 15 Litigation 23 (Spring 1989).
17 When fundamental rights have been construed more expansively under the Florida Constitution than the U.S. Constitution, Florida courts are bound to follow the state’s constitution. See Traylor v. State, 596 So. 2d 957 (Fla. 1992).
18 See, e.g., Hesson v. Walmsley Const. Co., 422 So. 2d 943 (Fla. 2d D.C.A. 1982); Williams v. Henderson, 687 So. 2d 838 (Fla. 2d D.C.A. 1996).
19 E.g., Hoffman v. Jones, 280 So. 2d 431 (Fla. 1973).
20 See McDonald’s Corp. v. Dep’t of Transp., 535 So. 2d 323 (Fla. 2d D.C.A. 1988).
21 O’Brien v. State, 478 So. 2d 497 (Fla. 5th D.C.A. 1985).
22 Topps v. State, 865 So. 2d 1253 (Fla. 2004).
23 E.g. Hendeles v. Sanford Auto Auction, Inc., 364 So. 2d 467 (Fla. 1978). Francois v. State, 695 So. 2d 695, n.2 (Fla. 1997), states “‘disposition of a case on appeal is made in accordance with the law in effect at the time of the appellate court’s decision unless a substantive right is altered.” For cases discussing how courts determine if a statute is to apply retroactively, see Metropolitan Dade County v. Chase Fed. Housing Corp., 737 So. 2d 494 (Fla. 1999); City of Orlando v. Desjardins, 493 So. 2d 1027 (Fla. 1986).
24 State v. Burris, 875 So. 2d 408 (Fla. 2004).
25 Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003). (“To discern legislative intent, courts must consider the statute as a whole, including the evil to be corrected, the language, title, and history of its enactment, and the state of law already in existence on the statute.”).
26 The Florida Legislature has codified the rule of lenity: “The provisions of this [criminal] code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” Fla. Stat. §775.021(1).
27 See, e.g., Medina v. Peralta, 724 So. 2d 1188 (Fla. 1999)(Refusal to inform jury of existence of underinsured motorists carrier was per se reversible error.); Goldschmidt.
28 See, e.g., Royster v. State, 643 So. 2d 61 (Fla. 1st D.C.A. 1994).
29 See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979).
30 For example, the district courts sit in three-judge panels and the Florida Supreme Court has seven justices. When district courts sit en banc and have an even number of judges, a tie could result. The comment to Fla. R. App. P. 9.331 states a tie suggests such cases should be certified to the Supreme Court for resolution.

Raymond T. (Tom) Elligett, Jr., is a member of the Tampa law firm of Schropp, Buell & Elligett, P.A. He is board certified in appellate practice and is an adjunct professor teaching appellate practice at Stetson University College of Law.
John M. Scheb was a judge on the Second District Court of Appeal from appointment in 1975 until retirement in 1992. Thereafter, he served as a senior judge until 2006. During the 1990s, Judge Scheb was a distinguished professorial lecturer at Stetson University College of Law, where he taught appellate practice. This column is submitted on behalf of the Appellate Practice Section, Thomas D. Hall, chair, and Wendy Loquasto and Steven L. Brannock, editors.

Adopted with permission of the authors and publisher from Florida Appellate Practice and Advocacy (4th ed. 2005), published by Stetson University College of Law.

Appellate Practice