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Bar Journal article spurs action on preserving issues on appeal

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Michael J. KornA special committee with members from several procedural rules committees will consider a tricky question on preserving issues on appeal when the challenged matters first appear in the trial judge’s order or judgment.

The Supreme Court requested the special committee’s creation and asked for a report by April 1. Members of the Small Claims, Civil Procedure, Family Law, Probate, Juvenile Court, and Rules of Judicial Administration committees are serving.

RJAC Vice Chair Michael Korn reported on the request at that committee’s recent gathering at the Bar’s Winter Meeting. He said the court wanted the special committee to address whether a rule is needed to address an issue raised in a May/June 2019 Bar Journal article form the Appellate Practice Section.

That article, by Daniel A. Bushell, discussed whether it is necessary to file for a rehearing to preserve for appeal a claim that a trial court order or judgment contains insufficient findings or findings based on insufficient evidence, when those issues first appear in the order or judgment.

Korn said that district courts of appeal have reached different answers to that question.

“The court would like some insight on whether a rule is warranted, and whether the rules of procedure should be amended to require that the sufficiency of a trial court’s finding be raised in a motion for rehearing in order for it to be preserved for appeal,” which is the position taken by the First, Third, and Fifth DCAs, Korn said.

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