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When Is a Motion for Rehearing Necessary to Preserve for Review a Trial Court’s Error in Failing to Make Factual Findings?

Appellate Practice

A core principle of appellate adjudication is that a party must preserve issues to raise them on appeal. That means, as the Florida Supreme Court reaffirmed in Sunset Harbour Condominium Association v. Robbins, 914 So. 2d 925 (Fla. 2005), “an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”[1] The preservation requirement derives from the idea that appellate courts should not fault a trial judge for failing to account for an issue if the parties did not tell him or her it needed to be considered.[2] Lack of preservation will not prevent review only in very limited circumstances in which the trial court committed a “fundamental error” that “goes to the very heart of the judicial process,” such as where the court lacked subject-matter jurisdiction or a party was denied due process.[3]

For any issue that arises before or during trial, it is a safe bet that if the issue was not raised to the trial judge, it will not be considered on appeal. In that regard, motions for rehearing authorized under Florida Rule of Civil Procedure 1.530 can be a lifeline to preserve for appeal issues that counsel failed to argue prior to the entry of judgment.[4]

But a more difficult issue arises when the issue to be raised on appeal is one that first appears in the trial court’s order or judgment. Is it necessary to file a motion for rehearing to preserve arguments as to the contents of the order or judgment, such as whether it contains sufficient findings or whether its findings are based on sufficient evidence (i.e., competent and substantial)? The answer varies with context and, in some situations, by district.

Unsupported Findings

Whether challenges to findings based on the sufficiency of the evidence must be preserved depends on the identity of the factfinder. For findings made by a judge without a jury, Rule 1.530(e) makes clear that neither a motion for rehearing nor any other action is necessary to preserve any challenge to the findings in an order (or judgment) as unsupported by competent, substantial evidence: “When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.”[5] Similarly, every district court of appeal has confirmed that a party may argue for the first time on appeal that the trial court judge’s findings were not supported by sufficient evidence.[6] On the other hand, when a case is tried to a jury, any challenge to the sufficiency of the evidence must be preserved through a motion for directed verdict and/or a motion for new trial.[7]

Findings Required for Meaningful Review

Then there is the issue of whether the order or judgment contains sufficient findings. Challenges to the sufficiency of findings can arise in any case involving multiple bases on which the trial court might have premised its decision, and the trial judge does not indicate either in the order or during the hearing the basis for its conclusion. For example, in Featured Properties, LLC v. BLKY, LLC, 65 So. 3d 135 (Fla. 1st DCA 2011), the seller claimed damages resulting from a buyer’s breach of a sales contract, and the buyer alleged as a defense that the contract was voidable or subject to rescission because the broker of the transaction had not disclosed that he was an owner of the seller. The seller responded that if the alleged broker-seller relationship existed, the buyer waived any ability to void the contract based on it by failing to immediately take action when the seller first learned of the alleged broker-seller relationship.[8] After a bench trial, the trial court awarded damages to the seller, without articulating whether it had rejected the allegation regarding the broker-seller relationship or had found the buyer had waived any right to void the contract.

In such circumstances, as the Fourth District Court of Appeal explained in Exotic Motorcars & Jewelry, Inc. v. Essex Ins. Co., 111 So. 3d 208 (Fla. 4th DCA 2013), without sufficient findings, the appellate court may be unable to determine whether the trial court erred, such that “effective review may be deemed impossible and the cause remanded for findings, notwithstanding that such findings may not be mandated by rule or statute.”[9] For a party to argue on appeal that additional findings are necessary to enable meaningful review, the party need not necessarily preserve the issue by raising it in a motion for rehearing; the issue is often raised by the court itself.[10]

Mandatory Findings

Challenges to the sufficiency of findings can also arise regarding particular types of orders in which caselaw requires the trial court to make specific findings. For example, under Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), when a court determines the amount of attorneys’ fees to award, it is required to make specific findings as to the reasonable hourly rate and reasonable number of hours expended.[11]

Similarly, under Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), before dismissing a case with prejudice based on attorney error, the court must make findings as to six considerations.[12] For such caselaw-mandated findings, appellate courts have held that the appellant must preserve the trial court’s error in failing to make the required findings by raising the issue in a motion for rehearing.[13]

Some statutes expressly require trial courts to make specific findings before awarding certain types of relief. For example, when a court awards attorneys’ fees under F.S. §57.105, the statute “requires an explicit finding by the trial court that there was a complete absence of a justiciable issue of law or fact raised by the plaintiff in the action.”[14] Given the presence of a statutory mandate, one might think that a trial court’s failure to comply with the terms of the statute under which it is proceeding would be challengeable on appeal even if the appellant did not bring the error to the trial court’s attention through a motion for rehearing. The caselaw indicates otherwise.[15]

A Split of Authority in Family Law Cases

The sufficiency of the trial court’s findings is most frequently an issue in family law cases. Statutorily mandated findings are a significant feature of F.S. Ch. 61 as specific findings are statutorily required when determining equitable distribution, alimony, child support, attorneys’ fees, relocation, and so on. It is, therefore, unsurprising that much of the jurisprudence regarding the need to file a motion for rehearing to preserve challenges to the sufficiency of the trial court’s statutory findings has developed in the family law context.

The Third District Court of Appeal issued the seminal opinion in this line of cases, Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla. 3d DCA 2001). In that case, the husband challenged the trial court’s alimony award based on the trial court’s failure to make the findings required by F.S. §61.08 and its equitable distribution determination, which skewed in favor of the wife without findings required by F.S. §61.07.[16] The Third District concluded that the husband had failed to preserve his challenges to the sufficiency of the trial court’s findings by failing to raise them in a motion for rehearing:

The time to request findings is when the case is pending in the trial court….Presumably the need for findings will be brought out at the final hearing and also in connection with the submission of any proposed judgment. If the judgment is entered without required findings, then a motion for rehearing should be filed, requesting findings.[17]

In Mathieu v. Mathieu, 877 So. 2d 740, 741 (Fla. 5th DCA 2004), the Fifth District Court of Appeal embraced the preservation requirement articulated in Broadfoot, finding “sensible” the Third District’s “approach that a party cannot complain on appeal about inadequate findings in a dissolution case unless the alleged defect was brought to the trial court’s attention in a motion for rehearing.” Going forward, the court explained, it would “adopt this approach” and “treat the lack of adequate findings as an unpreserved error unless previously brought to the trial court’s attention.”[18] The First District Court of Appeal followed suit in Owens v. Owens, 973 So. 2d 1169, 1170 (Fla. 1st DCA 2007), relying on Broadfoot and Mathieu in finding the appellant failed to preserve her argument that the trial court’s findings were insufficient because she “never challenged the adequacy of the findings in a motion for rehearing or by any other means available in the trial court.”

However, the Second and Fourth districts have been more circumspect. In Esaw v. Esaw, 965 So. 2d 1261, 1265 (Fla. 2d DCA 2007), in an opinion authored by then-Judge (now Chief Justice) Canady, the Second District mentioned the holdings of Broadfoot, Mathieu, and Owens in a footnote, but declined to decide whether to embrace those holdings due its “determination that the absence of findings is not a basis for reversal under the circumstances presented” whether the issue was preserved. Judge Silberman noted in a concurring opinion that there would be continuing uncertainty until the Second District decided whether to adopt the preservation doctrine of Broadfoot and that until the issue was resolved “litigants should bring the lack of adequate findings to the trial court’s attention at the first available opportunity to try and avoid an appellate determination that the issue has not been properly preserved.”[19]

In the years since Esaw, the Second District has neither embraced nor expressly rejected Broadfoot. The court cited Broadfoot with approval in McCann v. Crumblish-McCann, 21 So. 3d 170, 171 (Fla. 2d DCA 2009), in holding that a lack of written findings in awarding temporary alimony does not require reversal when the award is supported by competent, substantial evidence. However, the Second District appears to have concluded that preservation is not required to challenge insufficient findings concerning child support, explaining in M.M. v. J.H., 251 So. 3d 970, 972 (Fla. 2d DCA 2018), that “[a] trial court’s failure to include factual findings regarding the parties’ incomes for purposes of child support calculations renders a final judgment facially erroneous.”[20]

The Fourth District initially rejected the premise of Broadfoot. In Dorsett v. Dorsett, 902 So. 2d 947, 950 (Fla. 4th DCA 2005), the court held that a trial court’s failure to make the findings required for equitable distribution was an “error[] of law appear[ing] on the face of the [f]inal [j]udgment” and, thus, reviewable regardless of preservation. In a footnote, the court acknowledged that its holding was in tension with Mathieu and Broadfoot.[21]

But 15 years after Broadfoot, the Fourth District adopted its rule (though the court cited Simmons v. Simmons, 979 So. 2d 1063, 1064 (Fla. 1st DCA 2008), one of the progeny of Broadfoot), holding in Farghali v. Farghali, 187 So. 3d 338, 339 (Fla. 4th DCA 2016), that the appellant husband failed to preserve his challenge to the sufficiency of the trial court’s findings in determining equitable distribution because he “did not provide a trial transcript for appellate review, nor did he alert the trial court to this alleged shortcoming in a motion for rehearing.”

Farghali, however, was not to be the Fourth District’s last word on the issue. In Fox v. Fox, 44 Fla. L. Weekly D27 (Fla. 4th DCA Dec. 19, 2018), the Fourth District took up the issue of preservation of challenges to the sufficiency of the trial court’s findings en banc. The court fractured 7-5 in favor of overruling Farghali. Judge May, writing for the majority, explained that the holding was based on the fact that “the rules do not require the filing of a motion, many dissolution appeals are pro se, and a family court judge should be aware of the statutory requirements in rendering a decision on alimony, equitable distribution, and child support.” According to the majority, preservation rules should give way to the special circumstances of dissolution of marriage cases:

This case involves two competing values — judicial economy vs. a rule that is in the best interest of the children and their families. It makes perfect sense from a judicial economy standpoint to bring “the claim of inadequate findings” to the “attention of the trial court by way of a motion for rehearing.” Mathieu, 877 So. 2d 740 (Fla. 5th DCA 2004). Surely, the filing of a motion could easily eliminate an issue for appeal. But, because these cases involve children and families, it is equally, if not more, important that the final judgment comport with Chapter 61.

Rather than refusing to reach an appellate issue for want of a motion for rehearing, it is far better to require a trial court to make the statutorily-required findings. To evade review of a trial court’s failure to make required findings because someone either forgot or failed to move for rehearing frustrates the very purpose for those findings. Requiring a motion for rehearing is a rule that is too restrictive and imprecise to operate fairly where children and families are the focus. This is especially true where many family court cases are handled pro se.[22]

The dissent, however, felt the jurisprudential principles of the Florida Supreme Court required preservation. It cited Supreme Court precedents holding that fundamental error is the only exception to the requirement of preservation and that the failure to make required findings does not amount to fundamental error.[23] Given their rationales, it appears that both the majority and dissent would agree that preservation through a motion for rehearing is required outside of the family law context.

A Need for Consistency

The conflict between the Fourth District, on the one hand, and the First, Third, and Fifth districts on the other, calls out for Supreme Court intervention. Many family law and appellate attorneys practicing within the boundaries of the Fourth District also practice in other districts. Principles applied consistently across Florida would help attorneys throughout the state protect all their clients’ appellate rights, regardless of district.

Consistency between family law and other cases is also desirable. The holding in Fox appears to create an exception for dissolution cases that does not exist with any other preservation rule. It also breaks new ground in basing its rationale in part on the presence of pro se litigants in family law cases, as Florida law generally holds that pro se litigants must be held to the same procedural requirements. And while no doubt dissolution cases involving children can be highly sensitive matters in which preservation rules may seem unduly onerous, not all dissolution cases involve children, and other types of cases can also involve highly sensitive matters in which preservation rules may seem unduly onerous. In this author’s view, all litigants are best served by uniform preservation rules applied consistently across districts and types of cases.

[1] Sunset Harbour, 914 So. 2d at 928 (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985)).

[2] See Margolis v. Klein, 184 So. 2d 205, 206 (Fla. 3d DCA 1966) (“It is elementary that before a trial judge will be held in error, he must be presented with an opportunity to rule on the matter before him.”).

[3] See Yau v. IWDWarriors, Corp., 144 So. 3d 557, 560 (Fla. 1st DCA 2014); Fleischer v. Fleischer, 586 So. 2d 1253, 1254 (Fla. 4th DCA 1991).

[4] Due to the importance of motions for rehearing in preserving issues for appeal, it is highly advisable for trial lawyers to bring in appellate counsel before the deadline for serving motions for rehearing, if not sooner.

[5] Fla. R. Civ. P. 1.530(e).

[6] E.g., Levy v. Ben-Shmuel, 255 So. 3d 493, 495 (Fla. 3d DCA 2018) (“Regardless of whether Levy preserved this issue during the bench trial, the issue is properly raised on appeal.”); Delia v. GMAC Mortg. Corp., 161 So. 3d 554, 555 n.1 (Fla. 5th DCA 2014) (“Although this argument is being raised for the first time on appeal…[R]ule 1.530(e) of the Florida Rules of Civil Procedure authorizes appellate review of the sufficiency of the evidence to support a judgment entered in a bench trial matter regardless of whether the issue was raised below.”); Wolkoff v. Am. Home Mortg. Servicing, Inc., 153 So. 3d 280, 282 (Fla. 2d DCA 2014) (“The Wolkoffs were not required to make a contemporaneous objection to the sufficiency of the evidence in order to preserve the issue for appeal.”); Burdeshaw v. Bank of New York Mellon, 148 So. 3d 819, 822 (Fla. 1st DCA 2014); Diwakar v. Montecito Palm Beach Condo. Ass’n, Inc., 143 So. 3d 958, 961 (Fla. 4th DCA 2014) (“Diwakar’s argument that there was simply no competent, substantial evidence to support the award may be raised for the first time on appeal.”).

[7] See J.T.A. Factors, Inc. v. Philcon Services, Inc., 820 So. 2d 367, 371 (Fla. 3d DCA 2002) (listing cases).

[8] Featured Properties, 65 So. 3d at 136.

[9] Exotic Motorcars, 111 So. 3d at 209; accord Trump Endeavor 12, LLC v. Florida Pritikin Ctr., LLC, 208 So. 3d 311, 312 (Fla. 3d DCA 2016); Featured Properties, 65 So. 3d at 137; In re Doe, 932 So. 2d 278, 283 (Fla. 2d DCA 2005); Wolford v. Boone, 874 So. 2d 1207, 1210 (Fla. 5th DCA 2004).

[10] See Broadfoot, 791 So. 2d at 585 (“We do, of course, reserve the right to reverse on account of an absence of findings (whether the point was raised in the trial court or not) if the absence of the statutory findings frustrates this court’s appellate review.”). Note that the First District Court of Appeal has stated more broadly that a party is required to file a motion for rehearing to preserve any issue that “appear[s] for the first time on the face of the” judgment or order. Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011). The court extrapolated that conclusion from the fact that Rule 1.530(e) states that a motion for rehearing is not necessary to challenge findings as unsupported by substantial, competent evidence: “Implicit in this rule is that, in all other instances in which there is a concern about a judgment, it is necessary to file one of the enumerated motions to preserve the issue for appeal.” Id. Thus, the prudent course for counsel representing a potential appellant is to file a motion for rehearing whenever the findings might be insufficient.

[11] The opinion in Rowe speaks of factors that the court must consider without stating expressly that courts must make findings as to each factor, but the district courts of appeal have uniformly interpreted Rowe as requiring findings. See, e.g., T.G.G. v. P.M.L., 661 So. 2d 351, 351 (Fla. 1st DCA 1995); Guardianship of Halpert v. Rosenbloom, 698 So. 2d 938, 939 (Fla. 4th DCA 1997); Key W. Polo Club Developers, Inc. v. Towers Const. Co. of Panama City, Inc., 589 So. 2d 917, 918 (Fla. 3d DCA 1991); Devex, Inc. v. Liberty Fed. Sav. & Loan Ass’n, 551 So. 2d 606, 607 (Fla. 5th DCA 1989); Lara v. Fortune Ins. Co., 545 So. 2d 909, 910 (Fla. 2d DCA 1989). For some types of fee awards, the court must also make specific findings as to entitlement, such as when awarding fees under the inequitable conduct doctrine. Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002) (“[T]he trial court’s exercise of the inherent authority to assess attorneys’ fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct….”).

[12] Similar to Rowe, the opinion in Kozel identifies factors that courts must consider, without stating that courts must make written findings on those factors; but appellate courts have interpreted Kozel to require written findings on each factor. See, e.g., Alvarado v. Snow White & Seven Dwarfs, Inc., 8 So. 3d 388, 389 (Fla. 3d DCA 2009); Smith v. City of Panama City, 951 So. 2d 959, 962 (Fla. 1st DCA 2007); Tianvan v. AVCO Corp., 898 So. 2d 1208, 1209 (Fla. 4th DCA 2005).

[13] See Bank of Am., N.A. v. Ribaudo, 199 So. 3d 407, 409 (Fla. 4th DCA 2016) (affirming dismissal with prejudice despite lack of findings even though “[o]rdinarily, a trial court’s failure to address the Kozel factors would constitute reversible error,” because such an error must be preserved); Bank of New York Mellon v. Sandhill, 202 So. 3d 944, 945 (Fla. 5th DCA 2016) (“[T]o preserve as error the failure of the trial court to set forth its Kozel analysis in the order of dismissal, the [a]ppellant was obligated to bring the matter to the trial court’s attention by filing a timely motion for rehearing or clarification with a specific request for inclusion of the Kozel factor analysis in an amended order.”).

[14] Vasquez v. Provincial S., Inc., 795 So. 2d 216, 218 (Fla. 4th DCA 2001).

[15] See, e.g., Neustein v. Miami Shores Vill., 837 So. 2d 1054, 1055 (Fla. 3d DCA 2002) (finding challenge to sufficiency of findings in order awarding fees under §57.105 waived) (citing Broadfoot, 791 So. 2d at 585).

[16] Broadfoot, 791 So. 2d at 585.

[17] Id. (citations omitted).

[18] Id.

[19] Esaw, 965 So. 2d at 1268 (Silberman, J., concurring).

[20] Facial error is a doctrine that developed as an exception to the rule stated in Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979), that an appellant cannot demonstrate a trial court erred in making an evidence-based determination if the appellant does not present the appellate court with the transcript of the evidentiary hearing. Despite the rule of Applegate, courts will reverse “where an error of law is apparent on the face of the judgment.” Chirino v. Chirino, 710 So. 2d 696, 697 (Fla. 2d DCA 1998); accord Ferguson v. Ferguson, 54 So. 3d 553, 556 (Fla. 3d DCA 2011); Fugina v. Fugina, 874 So. 2d 1268, 1269 (Fla. 5th DCA 2004); Casella v. Casella, 569 So. 2d 848, 849 (Fla. 4th DCA 1990). There is an apparent tension between that doctrine and the rule that an error in failing to make required findings must be preserved to be considered on appeal.

[21] Dorsett, 902 So. 2d at 950 n.3.

[22] Fox v. Fox, 44 Fla. L. Weekly D27 (Fla. 4th DCA Dec. 19, 2018).

[23] Id. (Kuntz, J., concurring in part and dissenting in part).

Daniel A. BushellDaniel A. Bushell, B.A. (economics), University of Michigan 1996; J.D., University of Pennsylvania Law School 2002, is a Florida Bar board certified specialist in appellate practice and shareholder of Bushell Law, P.A., in Ft. Lauderdale, where his practice is focused on appeals and litigation support.

This column is submitted on behalf of the Appellate Practice Section, Sarah Lahlou-Amine, chair, and Thomas Seider, editor.

Appellate Practice