Florida Bar Journal

Tipsy Coachman Trends Requiring Appellee Preservation

This article addresses recent trends in Florida’s intermediate appellate courts applying the tipsy coachman doctrine to affirm on alternative bases decisions by lower courts that are “right for the wrong reasons.” Appellate courts are requiring appellees more often to present properly preserved arguments in support of affirmance before applying the tipsy coachman doctrine. Florida decisions show that the tipsy coachman doctrine does not apply to support affirmance based on unpreserved factual issues, a practice that aligns with that of the 11th Circuit. Courts also require that litigants preserve alternative arguments in summary judgment proceedings before allowing appellees to make those arguments in support of affirming favorable orders. Finally, courts require that appellees file cross-appeals to raise arguments previously raised in denied motions for summary judgment, even if those arguments could support a tipsy coachman affirmance of a separate order granting appellees’ later motion for summary judgment. In other words, a previously raised summary judgment argument cannot be raised by an appellee as a basis for a tipsy coachman affirmance of a later, favorable summary judgment order. These preservation trends conflict with the traditional tipsy coachman rule that an appellate court may affirm a right decision based on the wrong reasons on any basis supported by the record.

Background

The tipsy coachman doctrine is a long-standing rule of appellate practice that permits appellees to argue alternative bases for affirmance of a favorable order or judgment and permits or requires appellate courts to affirm decisions that are “right for the wrong reasons.” The tipsy coachman doctrine affords a lower court’s decision a presumption of correctness, which is heightened in situations in which the lower court has made credibility determinations or evidentiary findings. As previous writings on this doctrine have addressed, some intermediate appellate courts take a permissive approach to it, while some express an obligation to apply it.^[1] In Shands Teaching Hospital and Clinics, Inc. v. Mercury Ins. Co. of Florida, 97 So. 3d 204, 212 (Fla. 2012), the Florida Supreme Court hints that its answer to the question of mandatory or permissive application is that the tipsy coachman doctrine should be applied when there is sufficient supporting evidence in the record.

The Florida Supreme Court has addressed the tipsy coachman doctrine many times, initially stating the rule as permitting appellees to present any argument supported by the record, even if not expressly asserted in the trial court.^[2] In fact, a seminal case explaining the doctrine is the court’s decision in Dade County School Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999). Dade resolved a conflict with Dober v. Worrell, 401 So. 2d 1322, 1324 (Fla. 1981), in which the Florida Supreme Court opined that allowing an appellate court to rule on the merits of a trial court judgment but then permit the losing party to amend its initial pleadings to assert previously unraised matters “renders a mockery of the ‘finality’ concept in our system of justice,” and, “if allowed, would emasculate summary judgment procedure.” ^[3]

Dade distinguished Dober by stating, “if there is any theory or principle of law in the record which would support the ruling[,]” an appellee may advance a previously unargued theory.^[4] Dade involved a company called Three Kings seeking indemnification from a school board when the school’s majorettes injured spectators during a parade.^[5] Three Kings first raised the issue of equitable subrogation at a post-trial hearing and won judgment in its favor.^[6] The school board appealed, and the district court affirmed on the issue of equitable subrogation.^[7]

The Florida Supreme Court explained that, even though a trial court’s ruling is based on improper reasoning, it should be upheld if any theory or principle of law in the record would support the ruling.^[8] And, “[i]t stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court.”^[9] Dade cites MacNeill v. O’Neal, 238 So. 2d 614 (Fla. 1970),^[10] in which the court discussed cases holding that an appellee who does not challenge the lower court’s decision need not file a cross-assignment of error to have the appellate court consider the issue.^[11] Rather than affirming, however, the court remanded for the trial court to determine the contractual indemnification issue first, and if Three Kings did not succeed on that theory, then consider the equitable subrogation issue.^[12]

Federal courts have adopted a similar doctrine.^[13] For example, the 11th Circuit has adopted the view that an appellate court must affirm the decision of a district court if it reaches the right result for the wrong reason, but limited it to situations where the correctness of the lower court’s decision does not depend on a determination of fact.^[14] True to the principles underlying the tipsy coachman doctrine, the 11th Circuit “may affirm on any ground supported by the record, regardless of whether that ground was relied upon or even considered below.”^[15]

When Does the Tipsy Coachman Doctrine Apply?

There are specific situations in which the tipsy coachman doctrine will apply and will not apply. For example, the tipsy coachman doctrine will apply when appellees raise a preserved argument in support of affirmance — an argument that they made in a motion for summary judgment, on which they obtained a ruling.^[16]

Under the traditional rendition of the tipsy coachman doctrine, however, an appellee need not raise only preserved arguments. Consider Hope v. Citizens Prop. Ins., 114 So. 3d 457 (Fla. 3d DCA 2013), in which the tipsy coachman doctrine applied to affirm a lower court’s decision based on an argument on which the trial court did not rule. There, the insured argued prejudice in a motion for summary judgment, but the lower court entered summary judgment on the insured’s failure to provide timely notice and never reached the prejudice issue.^[17] Applying the tipsy coachman doctrine, the Third District Court of Appeal affirmed on the prejudice issue because “we are bound to affirm the circuit court’s order if it reached the correct result, even if it reached that result for the wrong reason.”^[18] Appellees should remember that not all intermediate appellate courts follow Hope’s approach.

Sometimes, the tipsy coachman doctrine will not apply. For instance, the tipsy coachman doctrine does not apply where an appellee seeks to reverse a lower court’s decision or when an appellee seeks to address an issue that is not the subject of the primary appeal.^[19] Some courts hold that the doctrine does not apply to grounds not raised in a motion for summary judgment^[20] and to grounds not ruled on by the trial court.^[21] The tipsy coachman doctrine does not apply to affirm fact-based determinations that are not preserved (appellee-preservation requirements).^[22]

To provide some background to the question of when a court may require a cross-appeal rather than permitting a tipsy coachman affirmance, consider the contours of cross-appeals. Simply, cross-appeals are required when an appellee seeks affirmative relief from an adverse ruling and when an appellee who won final judgment seeks to appeal an earlier, non-final, and unfavorable order.^[23] Failing to cross-appeal an issue when it is required waives the ability to challenge the issue on appeal.^[24] The tipsy coachman doctrine cannot revive an issue for which cross-appeal was required.^[25]

Alternatively, it is not appropriate for one defendant to cross-appeal an unfavorable order against it where the order subject to the underlying appeal was entered against a co-defendant.^[26] Rather, a cross-appeal is appropriate when seeking to review an order or judgment that is merged into — or an inherent part of — an order or judgment properly appealed.^[27]

The Preservation Limitation — A Sample of Recent Cases

The appellee-preservation requirements described above, although showing an uptick in recent cases, have existed for some time. While it is easy to understand why an appellee must preserve error for purposes of a cross-appeal, it is less obvious why the application of the tipsy coachman doctrine should be conditioned on an appellee having preserved that argument by presenting it in the lower court. Requiring appellees to raise only preserved issues in support of affirmance likens the tipsy coachman to cross-appeals and narrows the scope of the doctrine’s application. There is an identifiable trend expanding the appellee-preservation requirement beyond the traditional context of seeking affirmance of a summary judgment motion on tipsy coachman grounds and where fact-based determinations by the trial court are required.

In some courts, if an argument is not raised in the specific summary judgment motion that is appealed, an appellee cannot raise that argument to affirm an order granting that motion.^[28] Thus, an appellee cannot rely on an argument made in a previous partial motion for summary judgment or other motion to support an affirmance of a later, favorable order.^[29] Further, if rulings on previous motions were unfavorable to appellees, they may need to file cross-appeals of any unfavorable order or judgment if appellees wish to have the arguments reviewed on appeal.^[30] Finally, the tipsy coachman doctrine does not apply to affirm factual issues that were not properly preserved at the trial level.^[31] These trends are addressed below.

Intriguingly, the Florida Supreme Court considered tipsy coachman arguments that were litigated at the summary judgment stage in Shands Teaching Hospital and Clinics, but did not expressly require preservation. In fact, the court found that because the parties litigated the issue raised by the argument in support of affirmance, the record supported affirmance on the basis presented by the appellee.^[32] In the lower tribunal, the parties litigated the constitutionality of a lien law and city ordinance, which was addressed at the summary judgment stage.^[33] The trial court denied the cross-motions for summary judgment and rejected the insurer’s arguments that the lien law was unconstitutional.^[34] The insurer appealed and the intermediate appellate court reversed, holding the lien law and ordinance unconstitutional. The insurer also argued that the lien law and ordinance violated the insurer’s substantive due process rights, but the intermediate appellate court did not address the due process argument.^[35]

Shands appealed, arguing the lien law and ordinance were constitutional.^[36] Additionally, the insurer cross-appealed, again raising the due process issue and other issues unaddressed by the intermediate appellate court.^[37] The Florida Supreme Court affirmed the First District Court of Appeal’s conclusion that the lien law was unconstitutional, but held that the ordinance was not unconstitutional, although the Florida Supreme Court also held that it was an error to fail to uphold the trial court’s denial of summary judgment based on the constitutional ordinance.^[38] The Florida Supreme Court then addressed the cross-appealed due process argument and held that the ordinance did not violate due process.^[39] Accordingly, the Florida Supreme Court held that the intermediate appellate court should have upheld the trial court’s judgment based on the ordinance — even though the lien law was unconstitutional — seeing as there was support for the alternative theory or principle of law in the record before the trial court.^[40] The court reasoned that the parties litigated the constitutionality of the ordinance at the trial level after the insurer challenged the constitutionality at summary judgment, and so the record supported the trial court’s judgment on the alternative theory.^[41]

The Second District Court of Appeal in Williams v. State Farm Fla. Ins., 346 So. 3d 79, 83-84 (Fla. 2d DCA 2022), refused a tipsy coachman affirmance on issues about bad-faith insurance practices when the lower court did not make certain factual findings on the record. The Williams court quoted a case for the proposition that “[w]e cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.”^[42] There, an insured sued his homeowners insurance company for bad faith and the lower court granted summary judgment for the insurer; the insured appealed.^[43] In support of affirmance, the insurer argued that the insured’s civil remedy notice was deficient.^[44] The appellate court declined to reach the issue because the trial court did not rule on it or make findings about the civil remedy notice’s sufficiency, so the appellate court reversed the lower court’s grant of summary judgment.^[45]

The Second District again declined a tipsy coachman affirmance based on an alternative argument raised by an appellee in support of a trial court’s grant of a motion for judgment on the pleadings because it was not preserved at the trial level. In Century-National Ins. Co. v. Frantz, 369 So. 3d 739, 746 (Fla. 2d DCA 2023), the court would not consider under the tipsy coachman doctrine the alternative basis for affirming the trial court’s grant of the insured’s motion for judgment on the pleadings. The court explained that, in considering whether to apply the tipsy coachman doctrine, appellate courts may determine whether the record is sufficiently developed for review.^[46] The court found that, even though the insured raised the alternative bases for affirmance at the trial level, the trial court did not reach them and, instead, ruled on another issue.^[47] Accordingly, the appellate court reversed and remanded for the trial court to consider the arguments in the first instance.^[48]

The Third District in Sousa v. Zuni Transportation, Inc., 286 So. 3d 820, 821 (Fla. 3d DCA 2019), reversed because the trial court erred in dismissing the case on the arguments briefed and argued at the summary judgment stage, noting that the tipsy coachman doctrine did not apply because alternative bases for affirmance were not preserved. The appellate court, in declining to apply the doctrine, explained that “[e]ven if the record on appeal were to support an affirmance on these alternative grounds — an issue about which we express no opinion — it is well-settled that ‘[t]he [t]ipsy [c]oachman doctrine does not apply to grounds not raised in a motion for summary judgment.’”^[49] The court added that the alternative issues presented on appeal were raised for the first time on appeal, were not argued at the summary judgment hearing, and were not ruled on.^[50] The court cited Castor v. State, 365 So. 2d 701, 703 (Fla. 1978), for the rule that the court is confined to review of only properly preserved issues.

In another case, the Third District applied the preservation requirement in the context of an appellee seeking a summary judgment affirmance, but the court added a reason supporting that requirement — the 2021 amendments to the Florida Rules of Civil Procedure require a trial court to state on the record the reasons for granting or denying a motion for summary judgment.^[51] The case highlights the effect of the new summary judgment standard on the application of the tipsy coachman doctrine.^[52] The court held that the trial court needed to resolve all counts in the plaintiff’s complaint before entering final summary judgment for the defendant under Fla. R. Civ. P. 1.510.^[53] The court did not reach the merits of the appellee’s alternative argument that the plaintiff could not prevail because they lacked standing — the argument was not raised in the summary judgment motion.^[54] The court pointed out that this rule about summary judgment was well-settled.^[55] Thus, the court affirmed the trial court’s order of final summary judgment for the defendant regarding the statutory count that was ruled on in the trial court’s order, but it reversed the part of the order on the counts for which the court failed to provide its reasoning.^[56]

The Fifth District Court of Appeal in Lopez v. Avatar Property & Casualty Ins., 313 So. 3d 230, 235 (Fla. 5th DCA 2021), required an insurer seeking affirmance of a summary judgment order to limit its arguments to those raised in the motion, precluding the insurer from raising as an alternative basis for affirmance an argument in support of an earlier partial motion for summary judgment which was denied. In doing so, the court explained that the insurer should have filed a cross-appeal to raise arguments from an earlier, nonfinal, and unfavorable order on the insurer’s previous partial summary judgment motion.^[57] Based on this case, appellees should be cautioned to raise as tipsy coachman arguments only those arguments raised in the favorable motion that has been appealed. If there is an earlier non-final, unfavorable order that contains an argument that the appellee wants to raise in support of affirmance of a later favorable order, the appellee cannot do so in its answer brief to an appeal of the favorable later order and may be required to raise that issue in a cross-appeal.

In another opinion, the Fifth District required an appellee to argue only preserved issues in support of affirmance. In Mendota Ins. Co. v. At Home Autoglass, LLC, 348 So. 3d 641, 645 (Fla. 5th DCA 2022), the court reversed and remanded a denial of an insurer’s motion to compel appraisal. The insured assigned its rights under an insurance policy to the repair company that fixed the insured’s windshield, and the repair company made a claim that the insurer partly paid and then requested appraisal.^[58] The repair company sued and the insurer sought to compel appraisal by invoking the policy’s appraisal provision.^[59] In response to the insurer’s appeal, the repair company raised a tipsy coachman argument that the appraisal provision created an economic deterrent that violated the prohibited cost doctrine.^[60] The court declined to address the prohibited cost doctrine argument because the trial court did not make the necessary factual findings on the issue.^[61]

Tension Between the Preservation Requirement and the Principles Underlying the Tipsy Coachman Doctrine

The application of the tipsy coachman doctrine is based on principles of finality and efficiency.^[62] It supports the long-standing presumption of correctness that appellate courts afford to lower courts’ findings of fact.^[63] In applying the doctrine to affirm a decision, courts honor the principle of finality by permitting litigants to trust that decisions in their favor will stand. The doctrine also promotes judicial efficiency by providing an alternative to remand and it embodies the presumption of correctness afforded to lower courts’ decisions.

On the other hand, the traditional tipsy coachman doctrine, sans preservation requirement, defies the maxim that issues may not be raised for the first time on appeal.^[64] Courts acknowledge this tension. For example, Loranger By and Through Loranger v. State, Dep’t of Transp., 448 So. 2d 1036, 1039 (Fla. 4th DCA 1983), identified “the philosophical frictions between the two appellate maxims of ‘right for the wrong reason’ and ‘raising issues for the first time on appeal.’” There, the court explained that resorting to “appellate maxims” was unnecessary because the summary judgment rule provides that motions must state with particularity the grounds on which they are based and identify the substantive issues of law that will be discussed.^[65] Other courts attempt to resolve this tension by requiring appellee-preservation regardless of whether the issue being considered is fact-centric or law-centric. If courts continue this trend, the rule requiring preservation could very well eviscerate the judicially crafted exception that is the tipsy coachman doctrine.

Although these recent cases leave us with many unanswered questions, two things are clear: there is a trend favoring preservation of alternative arguments for affirmance of a favorable lower court decision and an appellee cannot raise as an alternative basis for affirmance an unsuccessful argument from another order, but must cross-appeal the decision denying that ground for relief.

This column is submitted on behalf of the Appellate Practice Section, Kansas Gooden, chair, and Sarah Roberge, Benjamin Paley, Matthew Cavender, and Dimitri Peteves, editors.