by Shannon Tan
Appellate Practice
Don’t Waive Your Appeal:
A Guide to Preserving Trial Error
A
ny attorney dreads receiving an adverse opinion
from the appellate court
with the phrase, “This issue
was waived below.” Losing is disappointing, but even more so when the
appellate court did not address the
merits of the otherwise compelling
argument on appeal. Familiarizing
yourself with the various ways of
preserving error is crucial to avoiding
waiving your argument on appeal.
This article provides a brief overview
of methods of preserving trial error
— at each stage of a trial proceeding
— for appellate review.
Motions in Limine
F.S. §90.104(1)(b), as amended in
2003, provides that “[i]f 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.” The party must secure a
ruling from the trial court in order
to preserve the issue for review.1 The
order granting the motion in limine
or the transcript of the hearing on
the motion must clearly indicate
what specific evidence is being excluded. As the Second District held in
SourceTrack, LLC v. Ariba, Inc., 958
So. 2d 523, 526 (Fla. 2d DCA 2007),
“absent a transcript of the hearing on
the motion in limine, we must affirm
a ruling that is not fundamentally
erroneous on its face.”
If the trial court makes a tentative
ruling or defers ruling on the motion
in limine, the non-prevailing party
must either proffer the excluded evidence2 or contemporaneously object
16 THE FLORIDA BAR JOURNAL/APRIL 2012
to the admitted evidence at trial3 in
order to preserve the claimed evidentiary error for appellate review. During trial, if a party violates a definitive
ruling on a motion in limine, the opposing party is still required to make
a contemporaneous objection. If the
objection is sustained, the party must
then move for a mistrial to preserve
the error for appeal.4
Jury Selection Issues
For an appellate court to consider
whether the trial court erred in refusing to strike a potential juror for
cause, the following three steps must
be taken: 1) Exhaust all remaining peremptory challenges; 2) request additional peremptory challenges that are
denied; and 3) identify specific jurors
whom the party would have excused
if possible, but who ultimately served
on the panel.5 The specific basis for
challenging the juror in question must
be raised during voir dire; if not, it is
not preserved for appeal.6
The preservation of a challenge
to a prospective juror also requires
a party to make more than one objection. “When a trial court denies
or grants a peremptory challenge,
the objecting party must renew and
reserve the objection before the jury
is sworn.”7 If the party fails to renew
the objection prior to the jury being
sworn, an appellate court will generally presume that the objecting party
has abandoned its prior objection and
is satisfied with the selected jury.8
Renewal of an objection, however,
may be unnecessary if the initial
objection is made close to the end of
jury selection and several minutes
prior to the jury being sworn.9
The Contemporaneous
Objection Rule
Proper preservation of error during
a trial generally requires three steps.
First, the party must make a timely,
contemporaneous objection at the
time of the alleged error.10 Second, the
party must state a legal ground for
that objection. Third, for an argument
to be cognizable on appeal, it must be
the specific contention asserted as
legal ground for the objection below.11
“While no magic words are required to
make a proper objection, the concern
articulated in the objection must be
sufficiently specific to inform the court
of the perceived error.”12
Motions for Directed Verdict
Prior to the 2010 amendment to Fla.
R. Civ. P. 1.480(b), a defendant was
required to move for a directed verdict
at the close of the plaintiff’s case, then
to renew the motion again at the close
of all the evidence.13 A defendant who
failed to renew his or her motion for
directed verdict at the close of all of
the evidence was precluded from challenging the sufficiency of the evidence
presented at trial on appeal.14 Following the 2010 amendment, however,
it is no longer necessary to renew a
motion for directed verdict at the close
of all of the evidence to preserve the
issue for appeal.15
Nonetheless, a defendant is still
required to file a post-verdict motion
for judgment in accordance with the
prior motion for directed verdict to
preserve the issue for appellate review.16 The motion for judgment in accordance with the motion for directed
verdict must be served within 10 days
after the verdict (or if a verdict is
not returned, after discharge of the
jury).17 The failure to serve the motion
within this 10-day period constitutes
a waiver.18 The appellate court will
recognize an exception when “the insufficiency of the evidence constitutes
plain error apparent on the face of the
record which if not noticed will result
in a manifest miscarriage of justice.”19
If a party mislabels the motion for
directed verdict as a motion for new
trial, an appellate court will look to
the substance of the motion, not the
label, in determining whether the issue is preserved.20
A co-defendant must object to a trial
court’s decision to grant a directed
verdict in favor of the other defendant in order to preserve the right to
challenge that directed verdict on appeal.21 This is because a co-defendant
must object or join in the objection of
the other defendant to preserve the
issue for appeal.22
Closing Arguments
To preserve for appellate review an
issue relating to an alleged improper
comment, a party must object to the
comment when it is made and obtain
a ruling on the objection.23 If a party
objects to the comment, but fails to
secure a ruling from the trial judge,
the issue is waived unless the judge
deliberately and patently refuses to
rule on the objection.24 If the trial
judge sustains the objection, the objecting party must make a timely
request for a curative instruction or
a motion for mistrial to preserve the
issue for appellate review.25 The motion for mistrial must be made before
the jury retires to deliberate.26
If a party fails to properly preserve
its objection to improper comments,
the comments will be subject to fundamental error analysis under Murphy v. International Robotic Systems,
Inc., 766 So. 2d 1010 (Fla. 2000).27
Murphy requires the party to show
that the comments were 1) improper,
2) harmful, 3) incurable, and 4) so
damaging to the fairness of the trial
that the public’s interest in our system
of justice requires a new trial.28 Comments that appeal to racial, ethnic, or
religious prejudices will fall into the
last part of this test.29 As the Murphy
court recognized, very few cases will
satisfy this stringent four-part test for
obtaining a new trial.30
Motions for Mistrial
A motion for mistrial must be made
at the time of the improper remark
or the inadmissible evidence.31 The
motion need not be made at the exact
moment the jury is exposed to the objectionable comment or inadmissible
evidence.32 As the Florida Supreme
Court observed in Ed Ricke & Sons,
Inc. v. Green, 468 So. 2d 908, 911 (Fla.
1985), “[W]e do not impose a strict rule
requiring that a motion for mistrial be
made in the next breath following the
objection to the remark.”
A motion for mistrial, coupled with
a request that the trial court reserve
ruling until the jury returns a verdict,
is sufficient to preserve the issue for
appellate review.33 A party can waive
its right to a new trial, however, by
withdrawing his or her motion for
mistrial. In Publix Super Markets, Inc.
v. Griffin, 837 So. 2d 1139, 1141 (Fla.
2d DCA 2003), the Second District
Court of Appeal held that the trial
court had abused its discretion in
granting the appellees’ motion for a
new trial because the appellees had
moved for a mistrial, but had then
withdrawn their motion, stating
that they wished to resist a mistrial
and preferred a curative instruction,
which was then given.
Jury Instructions
Fla. R. Civ. P. 1.470(b) expressly
states that a party cannot assign as
error the failure to give a jury instruction unless the party requests the jury
instruction at the charge conference.34
Merely filing the requested jury instruction is insufficient; the requested
instruction must be brought to the
attention of the trial court.35 If the
party submits the proposed instruction in writing, and the trial court
rejects the instruction, the issue is
preserved for appellate review.36 If
the desired instruction is not in writing, an appellate court will refuse to
consider whether the trial court erred
in failing to give the instruction.37
The procedure for preserving an ob-
THE FLORIDA BAR JOURNAL/APRIL 2012 17
jection to an opponent’s proposed jury
instruction is different from that necessary to preserve the court’s refusal
to give a requested instruction. Rule
1.470(b) provides that a party must
make a contemporaneous objection to
the jury instruction to preserve the issue for appeal. To properly preserve the
objection, “[i]t is necessary that a distinct and specific objection be made. A
general objection is not sufficient.”38
Inconsistent Verdicts and
Excessive or Inadequate
Verdicts
The difference between an inconsistent and inadequate or excessive
verdict is important for appellate
purposes. A verdict is inconsistent
when two findings of fact are mutually exclusive,39 such as when a jury
finds a party liable, but awards zero
damages. A verdict is not necessarily
inconsistent simply because it fails
to award enough money, awards too
much money, or awards no money in
a particular category.40 “To preserve
the issue of an inconsistent verdict,
the party claiming inconsistency must
raise the issue before the jury is discharged.”41 The party must specifically
request that the matter be resubmitted to the jury, or it is waived.42 The
trial court can then reinstruct the
jury and send it back for further deliberations. This procedure gives the
jury an opportunity to “correct” the
inconsistency.43 In contrast, objections
to the inadequacy or excessiveness of
a verdict can be raised in post-trial
motions for additur, remittitur, or new
trial without the need for an objection
prior to the jury’s discharge.44
Therefore, it is critical for parties to understand the distinction
between what is needed to challenge
an inconsistent verdict, as opposed to
an inadequate or excessive verdict.
As the First District recognized in
Progressive Select Insurance Co. v.
Lorenzo, 49 So. 3d 272, 277 (Fla. 4th
DCA 2010):
In recent years, the line of demarcation
between inconsistent and excessive or
inadequate verdicts has been blurred. This
is especially true in the area of no fault
litigation and with the advent of special
interrogatory verdict forms. What might
appear as an inconsistent verdict may
actually be an excessive or inadequate
18 THE FLORIDA BAR JOURNAL/APRIL 2012
verdict. The confusion has in part occurred
because these arguments are often combined or intertwined, thereby obfuscating
the line between the two.45
Damages
A party challenging an award of
damages can file a motion for remittitur or additur or a motion for new
trial. F. S. §768.74 authorizes the trial
court to grant a remittitur or additur
where the court determines that the
award of damages is “excessive or
inadequate in light of the facts and
circumstances which were presented
to the trier of fact.”46 The statute further provides, “If the party adversely
affected by such remittitur or additur
does not agree, the court shall order a
new trial in the cause on the issue of
damages only.”47
Verdict Form
A party’s “failure to object to a
verdict form regarding defects not
of a constitutional or fundamental
character constitutes a waiver of such
defects.”48 In fact, a party can invite
error by expressing satisfaction with
the verdict form before the form is
submitted to the jury.49 As the First
District explained in Perry v. State,
362 So. 2d 460, 462 (Fla. 1st DCA
1978): “Although the verdict forms
were defective, defendant not only
failed to enter an objection thereto at
trial but also expressed his agreement
to its submission. Any verdict form
error was, therefore, invited error.
His complaint post verdict is out of
season.”
The “two-issue rule” also presents
potential problems for unwary litigants. The rule, which was adopted by
the Florida Supreme Court in Colonial Stores, Inc. v. Scarbrough, 355 So.
2d 1181, 1186 (Fla. 1977), prevents
a party from challenging errors in a
general jury verdict form if the party
failed to object to the general verdict
form and propose a special verdict
form. Under this rule, if more than
one theory of liability is presented to
the jury and a general verdict form is
used, “no error can be found as to one
of multiple theories of liability submitted to the jury.”50 On appeal, the
party challenging the general verdict
will have to demonstrate error as to
both issues submitted to the jury.51
The “two-issue” rule, as its name indicates, applies “only to actions brought
on two theories of liability, as to which
just a single basis for damages applies, not to claims in which separate
damages are recoverable.”52 The rule
is inapplicable to cases involving
multiple elements of a single theory
of liability.53
In Food Lion, L.L.C. v. Henderson,
895 So. 2d 1207, 1209 (Fla. 5th DCA
2005), the Fifth District determined
that it could sua sponte raise the
“two-issue rule” to affirm a general
verdict even though the issue was not
raised in the parties’ briefs. The court
reasoned that the policy behind the
“two-issue” rule was similar to that
underlying the harmless error rule,
which allows appellate courts to sua
sponte engage in a harmless error
analysis.54
Harmless Error
F.S. §59.041 provides:
No judgment shall be set aside or reversed,
or new trial granted by any court of the
state in any cause, civil or criminal, on the
ground of misdirection of the jury or the
improper admission or rejection of evidence
or for error as to any matter of pleading
or procedure, unless in the opinion of the
court to which application is made, after
an examination of the entire case it shall
appear that the error complained of has
resulted in a miscarriage of justice. This
section shall be liberally construed.55
In criminal cases, the harmless
error test as established in State v.
DiGuilio, 491 So. 2d 1129, 1135 (Fla.
1986), requires the state to “prove
beyond a reasonable doubt that the
error complained of did not contribute
to the verdict or, alternatively stated,
that there is no reasonable possibility
that the error contributed to the conviction.” In civil cases, the appellate
courts have utilized three different
tests for harmless error. The first test,
used mainly by the Fourth District,
asks whether the result would have
been different, but for the error.56 Another line of decisions from the First
and Third districts asks whether the
result may have been different had
the error not occurred.57 A third line
of cases from the Second District asks
whether it is reasonably probable that
the party would have obtained a more
favorable verdict without the error.58
The Fourth District recently ana-
lyzed the different tests for harmless
error in civil cases in Special v. Baux,
52 So. 3d 682 (Fla. 4th DCA 2010).
The court concluded that the district
courts were improperly using an
outcome-oriented analysis instead
of employing the process-oriented
“effect on the fact finder” approach
in DiGuilio.59 The court adopted the
following standard for harmless error
in civil cases: “To avoid a new trial,
the beneficiary of the error in the trial
court must show on appeal that it is
more likely than not that the error
did not influence the trier of fact and
thereby contribute to the verdict.”60
The Fourth District also certified the
following question to the Florida Supreme Court: “In a civil appeal, shall
error be held harmless where it is
more likely than not that the error did
not contribute to the judgment?”61
Fundamental Error
Fundamental error may be raised
on appeal even without a contemporaneous objection. In criminal cases,
fundamental error “is the type of
error which reaches down into the
validity of the trial itself to the extent
that a verdict of guilty could not have
been obtained without the assistance
of the alleged error.”62 In civil cases,
an error is considered fundamental if
it goes to the foundation of the case
or goes to the merits of the cause
of action.63 For example, a denial of
due process constitutes fundamental
error and may be challenged for the
first time on appeal.64 A jury award
of damages that is not authorized
by law also constitutes fundamental
error.65 Nevertheless, as the Fourth
District noted in Grau v. Branham,
761 So. 2d 375, 378 (Fla. 4th DCA
2000), the appellate courts have “all
but closed the door on fundamental
error in civil trials.”q
1Tolbert v. State, 922 So. 2d 1013, 1017
(Fla. 5th D.C.A. 2006).
2Brantley v. Snapper Power Equip., Inc.,
665 So. 2d 241, 243 (Fla. 3d D.C.A. 1995).
3USAA Cas. Ins. Co. v. Allen, 17 So. 3d
1270, 1272 (Fla. 4th D.C.A. 2009).
4Ocwen Fin. Corp. v. Kidder, 950 So. 2d
480, 483 (Fla. 4th D.C.A. 2007).
5Wade v. State, 41 So. 3d 857, 873 (Fla.
2010); Busby v. State, 894 So. 2d 88, 96-97
(Fla. 2004).
6Embleton v. Senatus, 993 So. 2d 593,
597 (Fla. 4th D.C.A. 2008).
7Carratelli v. State, 961 So. 2d 312, 318
(Fla. 2007).
8Id.
9Gootee v. Clevinger, 778 So. 2d 1005,
1009 (Fla. 5th D.C.A. 2000).
10Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla.
2010).
11Id.
12Id. at 1109.
13Honda Motor Co., Ltd. v. Marcus, 440
So. 2d 373, 375 (Fla. 3d D.C.A. 1983).
14Id.
15See In re Amendments to The Florida
Rules of Civil Procedure, 52 So. 3d 579, 589
(Fla. 2010). The amendment took effect on
January 1, 2011. Id. at 581.
16Brown v. State, 940 So. 2d 609, 610 (Fla.
4th D.C.A. 2006); Williams v. Sch. Bd. of
Palm Beach Cnty., 770 So. 2d 706, 707 (Fla.
4th D.C.A. 2000); Indus. Affiliates, Ltd. v.
Testa, 770 So. 2d 202, 204 (Fla. 3d D.C.A.
2000).
17Fla. R. Civ. P. 1.480(b).
18Williams, 770 So. 2d at 707 (holding
that the trial court erred in granting the
appellee’s post-trial motion for directed
verdict because “[a]lthough the [appellee]
timely moved for a directed verdict during
trial, it did not serve its motion for directed
verdict until the eleventh day after the
verdict”).
19City of Pompano Beach v. Edwards,
129 So. 2d 144, 147 (Fla. 2d D.C.A. 1961);
see Fee, Parker & Lloyd, P.A. v. Sullivan,
379 So. 2d 412, 418 (Fla. 4th D.C.A. 1980);
Pickard v. Mar. Holdings Corp., 161 So. 2d
239, 242 (Fla. 3d D.C.A. 1964).
20Fulton Cnty. Adm’r v. Sullivan, 753 So.
2d 549, 553-54 (Fla. 1999).
21Eagleman v. Korzeniowski, 924 So. 2d
855, 859 (Fla. 4th D.C.A. 2006); S. Puerto
Rico Sugar Co. v. Tem-Cole, Inc., 403 So. 2d
494, 495 (Fla. 4th D.C.A. 1981).
22Eagleman, 924 So. 2d at 859.
23Schreidell v. Shoter, 500 So. 2d 228, 233
(Fla. 3d D.C.A. 1986); LeRetilley v. Harris,
354 So. 2d 1213, 1214 (Fla. 4th D.C.A.
1978).
24LeRetilley, 354 So. 2d at 1214.
25Companioni v. City of Tampa, 51 So. 3d
452, 453 (Fla. 2010); Grau v. Branham, 761
So. 2d 375, 378 (Fla. 4th D.C.A. 2000).
26State v. Cumbie, 380 So. 2d 1031, 1034
(Fla. 1980) (“The motion for mistrial in the
present case, made after jury instructions
and retirement of the jury for deliberation, however, came too late to preserve
Cumbie’s objection for appeal.”).
27Companioni, 51 So. 3d at 456.
28Murphy, 766 So. 2d at 1031.
29Id. at 1030.
30Id. at 1031.
31Ed Ricke & Sons, Inc. v. Green, 468 So.
2d 908, 910 (Fla. 1985).
32Id. at 911.
33Id. 34Fla. R. Civ. P. 1.470(b).
35Luthi v. Owens-Corning Fiberglass
Corp., 672 So. 2d 650, 651 (Fla. 4th D.C.A.
1996).
36Feliciano v. Sch. Bd. of Palm Beach
Cnty., 776 So. 2d 306, 307 (Fla. 4th D.C.A.
2000).
37Id.
38Luthi, 672 So. 2d at 652.
39Smith v. Fla. Healthy Kids Corp., 27 So.
3d 692, 695 (Fla. 4th D.C.A. 2010).
40See id.
41Fla. Dep’t of Transp. v. Stewart, 844 So.
2d 773, 774 (Fla. 4th D.C.A. 2003).
42Barreto v. Wray, 40 So. 3d 779, 779 (Fla.
3d D.C.A. 2010).
43Stewart, 844 So. 2d at 774.
44Progressive Select Ins. Co., Inc. v.
Lorenzo, 49 So. 3d 272, 276 (Fla. 4th D.C.A.
2010).
45Id. (internal citations omitted.)
46Fla. Stat. §768.74(1) (2011).
47Fla. Stat. §768.74(4) (2011).
48Papcun v. Piggy Bag Disc. Souvenirs,
Food & Gas Corp., 472 So. 2d 880, 881
(Fla. 5th D.C.A. 1985); see Hurley v. Gov’t
Employees Ins. Co., 619 So. 2d 477, 480
(Fla. 2d D.C.A. 1993).
49Delvalle v. State, 653 So. 2d 1078, 1079
(Fla. 5th D.C.A. 1995).
50LRX, Inc. v. Horizon Assocs. Joint Venture, 922 So. 2d 984, 986 (Fla. 4th D.C.A.
2005).
51Food Lion, L.L.C. v. Henderson, 895 So.
2d 1207, 1209 (Fla. 5th D.C.A. 2005).
52Weinstein Design Grp., Inc. v. Fielder,
884 So. 2d 990, 997 (Fla. 4th D.C.A.
2004).
53Grenitz v. Tomlian, 858 So. 2d 999, 1005
(Fla. 2003).
54Food Lion, LLC, 895 So. 2d at 1209.
55Fla. Stat. §59.041 (2011).
56Special v. Baux, No. 4D08–2511, 36 Fla.
L. Weekly D2503, 2011 WL 5554531, *10
(Fla. 4th D.C.A. Nov. 16, 2011) (en banc).
57Id.
58Id.
59Id. at *12.
60Id. at *13.
61Id. at *14.
62Dufour v. State, 905 So. 2d 42, 74 (Fla.
2005).
63Sanford v. Rubin, 237 So. 2d 134, 137
(Fla. 1970).
64Verizon Bus. Network Servs., Inc. v.
Dep’t of Corrs., 988 So. 2d 1148, 1151 (Fla.
1st D.C.A. 2008).
65Marks v. Delcastillo, 386 So. 2d 1259,
1268 (Fla. 3d D.C.A. 1980).
Shannon Tan is an associate in the
appellate department of Butler Pappas
Weihmuller Katz Craig, LLP, in Tampa.
After graduating magna cum laude from
Stetson University College of Law, she
served as a staff attorney to Judge Nelly
N. Khouzam of the Second District Court
of Appeal.
This column is submitted on behalf of
the Appellate Practice Section, Matthew J.
Conigliaro, chair; Kristin A. Norse, editor,
and Chris McAdams, Brandon Christian,
Kristi Rothell, and Bretton Albrecht, assistant editors.
THE FLORIDA BAR JOURNAL/APRIL 2012 19