Chapter 18-3 Preservation of Error

• Jurisdiction: Florida

18-3 Preservation of Error

Not all orders entered by a trial court are appropriate for review. Any foreclosure litigant who takes an appeal must have properly preserved the record for appellate review.⁹ Preserving the record includes making timely, contemporaneous objections, stating the legal basis for the objections, and obtaining an adverse ruling in the trial court.¹⁰ It is imperative that an appellant preserves its position as to the alleged error made by the trial court and that the record does not indicate that the appellant invited an error by the trial court judge solely for the purpose of taking advantage of the ruling on appeal.¹¹ It is also the appellant's responsibility to ensure that the record is complete, and that it reflects the specific error made by the trial judge.¹² Appellants may not rely on any inferences or evidence which are not made part of the appellate record.¹³ This presents a challenge to foreclosure litigants who did not anticipate an appeal prior to the entry of the order they now wish to appeal, because they may not have taken necessary steps to retain a court reporter or otherwise preserve what was said at a hearing or trial. There are only limited exceptions to the necessity of a transcript, so litigants should err on the side of preservation of their arguments through use of a court reporter.¹⁴

In extremely limited circumstances, the appellate court has the inherent authority to review "fundamental errors" of the trial court even in the absence of a timely objection by the appealing party. Fundamental errors may occur in a foreclosure action when the trial court lacks subject matter jurisdiction or denies due process to a litigant.¹⁵

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Notes:

^[9] Sanchez v. State, 909 So. 2d 981, 984 (Fla. 5th DCA 2005):

Commonly referred to as the contemporaneous objection rule, a litigant must preserve a specific issue by: 1) making a timely contemporaneous objection in the trial court; 2) stating the legal grounds for that objection; and 3) raising the specific argument in the appellate court that was asserted as the legal ground for the objection or motion made in the trial court.

Citing Harrell v. State, 894 So. 2d 935 (Fla. 2005).

^[10] Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979); see also Aills v. Boemi, 29 So. 3d 1105-108 (Fla. 2010) ("Proper preservation of error for appellate review generally requires three components. First, the party must make a timely, contemporaneous objection at the time of...