Five Things You Should Do in the Trial Court to Boost Your Chance of Winning an Appeal

Robin Bresky

Everything you do in the trial court should be geared towards a potential appeal. It seems that one side or the other is likely to appeal nearly any order. If you’re the Appellant, trying to reverse an order adverse to your client, the statewide statistics show less than a 20% chance of success on appeal. So it is important to do all that you can in the trial court to preserve a good record and boost your chance of success on appeal.

  1. Call a Court Reporter! Most appeals hinge upon both the law and the facts, and most appeals involve an exercise of judicial discretion. For an appellate court to review findings of facts and exercises of discretion, a transcript is essential. (It may not be strictly necessary to have a transcript if there are only pure issues of law—e.g., summary judgment—but then again, most appeals involve a mixture of facts, law, and discretion. Don’t take a chance; call a court reporter for the hearing and order the transcripts.
  • “Without the transcript, we must presume that sufficient evidence existed to support the … adjudication,” and “without the transcript, the [appellant] cannot demonstrate error.” DW v. Department of Children and Fams., 898 So. 2d 991, 992 (Fla. 5th DCA 2005).
  • Precision Tune Auto Care, Inc. v. Radcliffe, 804 So. 2d 1287, 1291 n.2 (Fla. 4th DCA 2002) (arguments were not preserved because, without a transcript, there is no record that they were made to the trial court).
  • Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1151 (Fla.1979) (without a record of the trial proceedings, the appellate court cannot properly review the underlying issues of fact and discretion so as to conclude that the trial court’s judgment is not supported by the evidence or by an alternative theory)
  • Maffea v. Moe, 483 So. 2d 829, 832 n.3 (Fla. 4th DCA 1986) (citing a case where an appeal had been dismissed for failure to file a transcript).
  1. Make Objections. An appeal is to review whether the trial judge made errors in view of the motions, arguments, and objections made (and the evidence admitted or proffered). If you don’t object to something in the trial court, the objection is generally waived (except perhaps if it involves “fundamental error”—which is rare, mainly involving serious due process issues).
    • “As a general matter, a reviewing court will not consider points raised for the first time on appeal…. The requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.” Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).
    • “[W]e find that [the claims] were not preserved for appellate review because no objection was made on those grounds at the hearing.” Survivors Charter Schools, Inc. v. School Board, 12 So. 3d 324, 325 Fla. 4th DCA 2009).
    • “To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal.” Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).
  1. Make All the Arguments and Raise All the Issues. Appellants are allowed to raise on appeal, only the same issues and arguments they raised in the trial court. This is where in-depth research is crucial at the trial-court level—to uncover all the arguments and issues that need to be made, and to formulate them persuasively and preserve those issues and arguments for appeal.
  • “[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.” Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982).
  • “An issue raised for the first time on appeal … will not be considered by this court.” Snyder v. Volkswagen of America, Inc., 574 So. 2d 1161, 1161 (Fla. 4th DCA 1991).
  • Each “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.” Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (citation and internal quotes omitted).
  • “[T]he specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.” Rodriguez v. State, 609 So. 2d 493, 499 (Fla. 1992));
  • Because the specific legal argument or ground to be argued on appeal must have been presented to the trial court, it is error for an appellate court to address an issue that was not properly preserved. Santiago v. Mauna Loa Invs., LLC, 189 So. 3d 752, 757 (Fla. 2016).
  1. File a Motion for Rehearing. A motion for rehearing or reconsideration is helpful with preserving issues and arguments for appeal. It is your last chance to raise objections. And if there is an error that appears for the first time on the face of an order or judgment, you mustbring it to the judge’s attention via a motion for rehearing. It is also important for raising the issue of a lack of statutory findings (that is essential in trial courts within 4 of the 5 appellate districts).
  • In trial courts within all of the appellate districts except the Fourth District, a motion for rehearing is essential to preserve an issue that the trial court failed to make statutorily-required findings. This happens mostly in family law cases where the court has to make findings on statutory factors regarding the best interests of the child, the need for alimony, equitable distribution of property, etc.
  • “[In the Fourth District,] [d]espite the other districts’ decisions requiring a party to file a motion for rehearing to preserve the issue of a trial court’s failure to make statutorily-required findings in alimony, equitable distribution, and child support, we adhere to our precedent that a party may raise the issue without having previously filed a motion for rehearing. This is because 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.” Fox v. Fox, 262 So. 3d 789, 793 (Fla. 4th DCA 2018). Even though the motion for rehearing may not be essential within the Fourth District, it can be helpful to file one to ensure that all issues are preserved for appeal, as various issues can be raised and preserved in a motion for rehearing.
  • A lack of statutory findings (or insufficient statutory findings) is different from insufficient evidence. If there was a bench trial/non-jury trial, “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….” Fla. R. Civ. P. 1.530(e).
  • There is authority allowing even new issues to be raised in a motion for rehearing. In Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269, 278-279 (Fla. 1st DCA 2012), the First DCA rejected the idea that a new argument was barred from consideration when raised for the first time in a motion for rehearing in the trial court. Although “the trial judge has discretion to decline to consider a new argument on rehearing,” trial judges are not bound by the appellate standard for rehearing (which limits the issues to those already presented in the briefs). “[N]o such limitation appears in the rule that applies in trial courts.” Fitchner, 88 So. 3d at 278. “We do not suggest that trial judges are required to consider new issues presented for the first time on rehearing. Our point is simply that they have the authority to hear new issues. In the present case, the proper exercise of discretion would have been to allow the argument on rehearing.” Id. (e.s.). “If we were to conclude that the [new argument in the] motion for rehearing . . . was raised too late in the game, . . . [t]his would be an unnecessary triumph of procedure over substance.” Id. at 279. See also Aubourg v. Erazo, 922 So. 2d 1106, 1107 (Fla. 4th DCA 2006) (noting that a motion for new trial contained matters which had not been previously argued, and holding that no live hearing is required before deciding such post-trial motions even if new arguments are asserted); Fernandes v. Boisvert, 659 So. 2d 412, 413 (Fla. 2d DCA 1995) (the trial court abused its discretion by declining to consider an affidavit presented for the first time with a motion for rehearing, even though it did not contain any information that would qualify as newly-discovered evidence).
  1. File the Notice of Appeal on Time! “Jurisdiction of the court [of appeal] … shall be invoked by filing a notice [of appeal] … with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.” Fla. R. App. P. 9.110(b). See also Rule 9.130(b). No matter how good your appeal would be on the merits, it is “dead on arrival” (and will be dismissed) if you miss the 30-day deadline for filing the Notice of Appeal.
  • The appellate court has no jurisdiction to hear an appeal that is filed late. See Walker v. Walker, 4 So. 3d 35, 35 (Fla. 3d DCA 2009).
  • An order is “rendered” (and the 30 days begins) when a signed, written order is filed with the clerk of the lower tribunal.
  • If there is a timely and authorized motion for rehearing or new trial (or certain other authorized motions—see Rule 9.020(h)) regarding a final order or judgment, rendition of the final order/judgment is tolled until the filing of a signed, written order disposing of the last of the motion(s). Rule 9.020(h)(2). (However, an order granting a new trial is deemed rendered immediately when filed with the clerk, regardless of whether other motions may remain pending at the time. Rule 9.020(h)(2).)