Preserving Claims of Error in Florida Federal and State Civil Actions: Some Common Rules.

Author:Sanchez, Ernesto J.
Position::Appellate Practice
 
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Among the rules that Florida federal and state courts have in common for both civil and criminal jury trials is the rule mandating contemporaneous objections--to present an error to an appellate court, the complaining party must have timely raised the issue in the trial court. (1) The failure to raise such an issue in the trial court will in turn change an appellate court's standard of review to that of plain or fundamental error. (2) Properly preserving any error at the trial court level, thus, remains essential given how plain or fundamental error only encompasses a very limited set of circumstances. (3) In this respect, preservation requires that objections and arguments be made at the trial level with sufficient specificity and precision to enable an appellate court to determine that an issue presented to it is the same one ruled upon by the trial court. (4)

Practice before Florida federal and state courts may differ in a number of ways. Nonetheless, there are a number of rules governing the preservation of claims of error in civil actions that are quite similar, if not identical. The following will provide a helpful, but nonexhaustive, list of those rules that a busy civil practitioner with cases in both federal and state court can keep in mind.

* Pleadings--Pleadings provide the parties with notice of the issues underlying a dispute. Plaintiffs, at the outset of a suit, must consequently state their pleadings with sufficient particularity. (5) This rule is meant to ensure that the defense is sufficiently prepared. So defendants should object to trying unpled issues or they risk being deemed to have tried them by consent. (6)

Defendants face similar obligations to be clear about their own case, especially with respect to affirmative defenses--facts or sets of facts that, if proven, will negate liability. More specifically, defendants may waive a number of affirmative defenses if they do not include them in responsive pleadings. (7)

The law governing pleadings, whether it is applied in a state or federal context, thus, places more obligations on defense counsel than it does on plaintiffs' counsel. Defense counsel, unable to take the chance that an active judge will spot deficiencies in a plaintiff's pleadings, must ensure that both their own pleadings and those of a plaintiff are sufficiently particular. At the very least, they should plead all affirmative defenses that will be waived if not identified at the outset of litigation, even though some judges may permit defendants to belatedly raise such defenses on rare occasions.

* Pretrial Stipulations--By providing a concise statement of facts that are admitted and need no proof, as well as issues of fact and law that remain to be litigated, a joint pretrial stipulation or pretrial order can provide a useful roadmap for a trial. Failure to include required items in a pretrial stipulation, then, can have serious consequences given how courts have held that such a stipulation is equivalent or superior to the pleadings in importance, and that claims and defenses can be waived if not identified in the stipulation. (8) To minimize the risk of waiver, counsel should ensure that all claims and defenses are included in the pretrial stipulation and that opposing counsel has not included improper claims, defenses, or evidence in the stipulation.

* Motions in Limine--A motion in limine is "any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered." (9) The exclusion of inadmissible or unfairly prejudicial evidence and arguments prior to trial, as opposed to objections upon their introduction, can help prevent an opponent from tainting a jury.

A trial court can address a motion in limine in a number of ways, each of which has its own implications for the movant. If the court grants a motion in limine, the movant should still make a contemporaneous objection to any evidence subsequently submitted in violation of the corresponding order in limine or a resulting claim of error will likely not be preserved for appellate review. (10) If, however, the trial court reserves ruling on a motion in limine, neglects to issue a definitive ruling, or denies the motion, it is best for the movant, absent a very strong reason to do otherwise, to both renew the motion at trial and object to any related evidence that the opposing party introduces simply because a motion in limine by itself generally remains insufficient to preserve an issue for appeal. (11)

* Summary Judgment--A party does not waive claims or defenses by not seeking summary judgment. Nor does a motion for summary judgment preserve issues for appeal. Indeed, a court's denial of a summary judgment motion merely constitutes an interlocutory order that does not finally dispose of the issues the motion raised. But moving for summary judgment remains advisable simply because a successful summary judgment motion can end a case. Even a partially successful summary judgment motion can narrow issues for trial and minimize time and resources required to resolve a case.

On appeal, the holder of a summary judgment will typically be free to defend the judgment on any ground the record makes manifest, and not just the trial judge's reasoning. (12) The party opposing the summary disposition of a dispute must raise all arguments against such a remedy in its brief before the trial court or risk waiver of arguments that were not raised. (13)

* Jury...

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