Chapter 19-3 Preservation of Error

19-3 Preservation of Error

Any litigant who takes an appeal must properly preserve 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 If an issue was not framed by the pleadings, noticed for hearing, or litigated by the parties, it will not be considered on appeal.¹¹ 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.¹²

It is the appellant's responsibility to ensure that the record is complete, and that it reflects the specific error made by the trial judge.¹³ Appellants may not rely on any inferences or evidence which are not made part of the appellate record.¹⁴ This presents a challenge to foreclosure litigants who did not anticipate an appeal prior to the entry of a judgment following trial, because they may not have taken necessary steps to retain a court reporter or otherwise preserve what was said at trial. The absence of a transcript, however, is not fatal to an appeal if the record otherwise reflects the arguments and rulings.¹⁵

Where a transcript is necessary but is not available because no court reporter was present or the transcript is otherwise unavailable, the parties may seek to recreate the record.¹⁶ If the parties made a diligent effort to reconstruct the record but were unable to do so, the appellate court may elect to remand the case for a new trial.¹⁷

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.¹⁸ The Florida Supreme Court has defined fundamental error as error which goes to the foundation of the case or goes to the merits of the cause of action.¹⁹ Fundamental errors may occur in a foreclosure action when the trial court lacks subject matter jurisdiction or denies due process to a litigant.²⁰

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Notes:

^[9] Miranda v. RBS Citizens, 253 So. 3d 746, 748 (Fla. 3d DCA 2018) (quoting S. Florida Apartment Ass'n, Inc. v. Dansyear, 347 So. 2d 710, 711 (Fla. 3d DCA 1977) (assigning to the appellant the "responsibility and duty" to provide the appellate court with a sufficient record)).

^[10] Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150 (Fla. 1979)...