PRESERVATION OF ERROR AND COMPLETION OF THE RECORD: A BRIEF GUIDE FOR TRIAL ATTORNEYS IN BUILDING A SUCCESSFUL CASE ON APPEAL.
By: Christian C. Walters, Esq. of Barry L. Miller, P.A., Offices Orlando.
Many new trial attorneys know that a successful case may often result in an unavoidable appeal. Judges, like attorneys, are human and can make mistakes. Similarly, there may arise some ambiguity in the law of decision which warrants further scrutinization and interpretation of a contract, statute, or undeveloped precedent. As such, trial counsel must be mindful of two basic underlying principles which form the basis of any cognizable appeal—preservation of error and the proffer of a comprehensive record.
A. Preservation of Error
As all appellate practitioners know, it is not the function of an appellate court “to entertain for the first time on appeal, issues which the complaining party could have, and should have, but did not, present to the trial court.” Adkison v. Morey, 239 So. 3d 205, 207 (Fla. 1st DCA 2018) (citations omitted). Thus, subject to few exceptions, an argument made for the first time on appeal, is generally not preserved in the record of the trial court, and will not be adjudicated by an appellate court. Id. As the First District has stated, “[f]or an issue to be preserved for appeal, it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation.” Holland v. Cheney Bros, Inc., 22 So. 3d 648, 649–50 (Fla. 1st DCA 2009). An argument raised initially in an appellate brief will often be met with staunch opposition in the form of an answer or reply brief.
Further, Preservation of error requires far more than a bare legal conclusion raised idly in a motion or in oral argumentation at a hearing (i.e. the contract was breached, the Defendant was negligent, the recovery is barred because of the economic loss doctrine); it requires that a specific, well-defined argument complete with analysis, both factual and legal, be presented thoroughly to the lower tribunal. See, Hammond v. State, 34 So. 3d 58, 59 (Fla. 4th DCA 2010) (citations omitted). Issues that could completely change the outcome of a case, such as arguments concerning the statute of limitations, failure to state a cause of action, the application of a statute, and procedural due process violations, can all be waived unless specific argumentation is made in the trial court. 3 Fla. Jur. 2d Appellate Review § 91. The duty to preserve is applicable to legal theories raised in motions and at hearings, evidentiary objections and offers of proof, the procedural ebb and flow of a trial, jury instructions, and nearly any other conceivable argument.
The act of preservation of error is inexplicably intertwined with the presentation of a thorough and complete record, as discussed more thoroughly below. As is obvious, preservation of error requires that the error be preserved in the record. So, even if an argument is beautifully, thoughtfully, and strategically made in the trial court, that argument will be waived unless it appears upon the face of a motion, memorandum, hearing transcript, or other document forming, in part, the record on appeal.
Occasionally appellate counsel will be thrust into a case in which the record has been inadequately preserved below. If so, appellate counsel will need to determine if there has been fundamental error. Fundamental error is an exception to the general mandate that error must be preserved in the record on appeal. It is error which “can be considered on appeal without objection in the lower court [and] is error which goes to the foundation of the case or goes to the merits of the cause of action” and which “must amount to a denial of due process.” Hooters of America, Inc. v. Carolina Wings, Inc., 655 So. 2d 1231, 1235 (Fla. 1st DCA 1995). Suffice it to say, given the ambiguity and openness for personal interpretation, the application of the fundamental error doctrine is the subject of fierce debate in appellate litigation. The application of the fundamental error doctrine is a device which is best left uninvoked unless absolutely necessary and the better practice is to simply preserve the alleged error in the record.
B. The Proffer of a Complete Record.
A complete record is an absolute necessity for a successful appeal. The record constitutes the motions, responses, documents, transcripts, and evidence remit to the appellate court, from the trial court, and upon which the appellate court forms the basis of its decision. Stated differently, the record is a collection of trial court documents to be examined by the appellate court for the existence vel non of error. Appellate review is confined solely to the record on appeal. E.I. DuPont De Nemours and Co. v. Native Hammock Nursery, Inc., 698 So. 2d 267, 270 (Fla. 3d DCA 1997). As such, it is “the duty of the party seeking review of a trial court order to provide the appellate court with a record sufficient to review the matter presented.” Shuler v. Green Mountain Ventures, Inc., 791 So. 2d 1213, 1216 (Fla. 5th DCA 201) (citations omitted).
Most often, an issue with the completeness of a record arises as a result of an evidentiary or other hearing conducted without the services of a court reporter or in the absence of a transcript of a trial or hearing. Absent a record of a particular proceeding, an appellate court is powerless to determine error committed during the course that proceeding unless patently obvious on the face of the order itself. Verily, “[t]he absence of a transcript of a hearing can be fatal to an appellant, especially if the hearing was an evidentiary hearing.” Ferguson v. Ferguson, 54 So. 3d 533, 556 (Fla. 3d DCA 2011). Without a record of a hearing, a court assumes, for purposes of the appeal, that the judgment or order so entered followed the necessary requirements of law. GMAC Mort., LLC. v. Palenzuela, 208 So. 3d 181, 183 (Fla. 3d DCA 2016) (stating “[w]here there is no record of the testimony of witnesses or of evidentiary rulings, and where a statement of the record has not been prepared to Florida Rule of Appellate Procedure 9.200(a)(3) or (b)(4), a judgment which is not fundamentally erroneous on its face must be affirmed.”) Accordingly, the need to preserve applicable error in a complete record cannot be understated. If you need assistance with an appeal, the attorneys at Barry Miller Law can help. Please email [email protected] or call us at 407-423-1700 for a consultation.