Pop quiz: why is fundamental error like pornography?

• Author: Hendricks, Valeria
• Position: Appellate Practice and Advocacy

Answer: To paraphrase Justice Stewart's often quoted standard, because a court knows it when it sees it. (1)

The doctrine of "fundamental" or "plain" error, which permits appellate review of error without a proper preservation of the issue in the lower tribunal, has been defined consistently in Florida jurisprudence as "error which goes to the foundation of the case or goes to the merits of the cause of action." (2) Additionally, fundamental error has been deemed to "extinguish a party's right to a fair trial." (3) But just as the definition of "obscenity" as material appealing to the "prurient interest" of the average person and "utterly without redeeming social importance" has been-imperfect in its application, (4) the definition of "fundamental error" has been difficult to apply in specific cases, especially in civil actions, and has sometimes resulted in apparent disparate dispositions. (5)

The paramount consideration in applying the doctrine of fundamental error should focus on the public's perception and confidence in the judicial process. As Judge Chris W. Altenbernd observed in Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580 (Fla. 2d DCA 1996):

Although fundamental error is extraordinarily difficult to define, the doctrine functions to preserve the public's confidence in the judicial system. Relief is granted for a fundamental error not because the party has preserved a right to relief from a harmful error, but because the public's confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.

Id. at 584.

How, then, is an appellate practitioner, staring at a record or transcript, supposed to know whether the unpreserved error glaring back is "fundamental"? This column seeks to aid the appellate (and trial) practitioner in evaluating whether unpreserved errors at the different stages of civil cases may be reviewed through use of the fundamental error doctrine, keeping in mind that the Supreme Court of Florida has cautioned that an appellate court should exercise its discretion under the doctrine "very guardedly." (6) The reader will quickly discern that, unlike pornography, courts often see fundamental error for what it is not, rather than for what it is.

Voir Dire

Errors made during voir dire and jury selection are not generally regarded as "fundamental." For example, in Ter Keurst v. Miami Elevator Co., 486 So. 2d 547 (Fla. 1986), the Supreme Court held that while the trial court's procedure for jury selection in that case was an abuse of discretion, the error was not fundamental and counsel's failure to object to the panel as sworn precluded reversal of the judgment entered upon the jury's verdict. A contemporaneous objection to a trial court's failure to excuse certain jurors for cause and its limitations on the scope of voir dire is not sufficient to preserve the issue for appeal. (7) The same is true for a party who unsuccessfully moves to strike a jury panel for improper remarks made during voir dire, (8) or who objects to an opposing party's use of a peremptory challenge on the basis of discriminatory reasons. (9) Counsel must make or renew all objections to the jury selection process prior to the jury's being sworn in order to preserve any errors for review. (10)

Trial Errors

It is clear that most trial errors involving constitutional issues are waived if not preserved by a timely objection. For example, in Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970), the Supreme Court held that the district court erred in considering for the first time on appeal a single-subject constitutional challenge to a statute that permitted an award of attorneys' fees to the prevailing employees in a disciplinary proceeding. The court reasoned that "the allowance of the attorneys' fee did not go to the merits of the case or the foundation of the case," which instead involved the employees' rights to retain their employment and receive compensation during their suspension pursuant to an erroneous disciplinary board ruling. (11) The First District cited Sanford in its rejection of a business owner's argument, raised for the first time on appeal, that a zoning ordinance was invalidly enacted even where the "foundation of the case" was the entry of an injunction against the business owner based upon the zoning ordinance. (12)

Courts are, however, likely to see fundamental error in constitutional issues involving due process. In particular, the Fifth District has held that it was fundamental error for a trial court to deny a party's request to call witnesses or to present closing argument at a hearing to modify an earlier dissolution judgment. (13) The Fifth District has also found fundamental error in a trial court's failure to rule on--in effect, to deny--a request for a continuance to obtain a guardian to act on the party's behalf where it was legally impossible for the party to participate in the proceeding. (14) It should be noted that neither of these opinions reveals whether the aggrieved party timely or properly objected to the trial court's ruling. On the other hand, however, the Fifth District has held fundamental error was not present where a pro se party failed to object to a hearing officer's decision to continue a proceeding without the presence of the sole adverse witness against her, which witness she had not had an opportunity to cross-examine at the first hearing. (15)

Error that goes to the foundation of a case or cause of action occurs at trial when the court permits a party to bring a cause of action that does not exist or is not available to the party. In I.A. v. H.H., 710 So. 2d 162 (Fla. 2d DCA 1998), even though the argument had not been raised in the trial or appellate courts, the Second District reversed a judgment of paternity and remanded with directions to dismiss the petition where it concluded that the biological father had no cause of action to establish paternity after the putative father married the child's mother. In reaching this overlooked but critical issue, the Second District stated:

Although positions that are not presented to the trial court or argued on appeal generally are waived, it is our duty to notice and correct jurisdictional defects or fundamental errors even when they have not been identified by the parties. Such is the case where the trial court has granted relief that is not authorized by law, or pursuant to a cause of action that either does not exist or is not available to the plaintiff. (6)

Similarly, the Third District has held that a defendant's failure to preserve a statute of frauds defense issue did not preclude review where it was "crystal clear" that the uncontroverted evidence on the making and duration of the oral contract did not state an actionable claim for relief. (17) The Second District, concluding the equitable distribution of a nonmarital asset was fundamental error, reversed that award, although the issue was raised for the first time at oral argument. (18) At least two courts have held that federal preemption issues can be raised for the first time on appeal if resolution of the issue can be made from the existing record without further factual determinations. (19)

The district courts of appeal may be in conflict on whether the failure to appoint a guardian ad litem may be raised as error for the first time on appeal. In A.D. v. Department of Health & Rehabilitative Services, 639 So. 2d 639 (Fla. 2d DCA 1994), the Second District held that the trial court's failure to appoint a statutorily required guardian ad litem was not fundamental error that could be raised for the first time on appeal. The Fifth District held to the contrary in Vestal v. Vestal, 731 So. 2d 828 (Fla. 5th DCA 1999), although it had previously held in another case that failure to appoint a guardian ad litem was not fundamental error. (20) In determining that such failure was fundamental error in Vestal, the court distinguished its prior decision and the Second District's decision in A.D.:

In contrast to [those cases], in the instant case no guardian was ever appointed, and apparently no appointment was even attempted. Additionally, here there were no foster parents and very little HRS involvement.... Due to the lack of a guardian or foster parents to testify in this case, along with the inconclusiveness of the medical evidence, the trial essentially became a credibility contest between an ex-wife and an ex-husband. Under these...