The appellate decision-making process.

• Author: Elligett, Jr., Raymond T.

Appellate practitioners spend hours preparing briefs and, when available, oral arguments. When the "curtain closes," the advocates leave the case with the court. Counsel may feel his or her work is done, and it is. But thinking about how appellate judges decide cases may assist in presenting the appeal and, for appellants, analyzing whether it stands a real chance of success. This article examines aspects of the appellate decision-making process.

Functions of the Appellate Court

To appreciate the appellate court's approach in reviewing claimed errors, it helps to recall that appellate courts serve two primary functions. First, they review the decisions of lower tribunals for legal correctness. Second, they announce, clarify, and harmonize the rules of law which govern the affairs of those not parties to the particular reviews they undertake.

Appellate counsel who appreciate these core functions should be able to advance their clients' cases more effectively, especially by selecting potentially meritorious issues to appeal. Selecting issues involves determining the applicable standard of review for potential issues, evaluating the strengths of the arguments that error has occurred, considering whether the error caused harm, and determining whether the error was preserved below.

Does the Court Have Jurisdiction?

The appellate court's first concern is whether it has jurisdiction over the case. There can be several aspects to this inquiry. Is the case within the court's prescribed authority to hear under the Florida Constitution and Florida Rules of Appellate Procedure? (1) For most final appeals this should be straightforward, but whether a court has jurisdiction to consider a nonfinal order or certiorari jurisdiction over such an order can be more complicated. When a nonfinal order does not fall within the clear wording of Florida Rule of Appellate Procedure 9.130, counsel should consider citing case law on the court's ability to review such orders. Staff attorneys are instructed to note the jurisdictional basis of an appeal, certiorari, or petition for an original writ in their memoranda to the court or to the panel assigned to the case.

A second level of jurisdictional analysis considers if the appeal is timely filed. Failing to file the notice of appeal within 30 days of rendition is fatal for state court appeals, no matter how meritorious the case might have been. (2) Appellate courts look to determine if rendition has been tolled by an authorized and timely served motion. Protecting the client's appellate rights requires understanding the tinting requirements for post-trial motions, because only timely motions are effective in postponing rendition.

Appellate courts also consider if a case has become moot. Article III of the U.S. Constitution limits the jurisdiction of federal courts to "cases or controversies." Thus, they lack jurisdiction if a case has become moot during the litigation. (3)

Florida courts generally decline to decide moot cases, but based on policy reasons, rather than a lack of jurisdiction (perhaps because Florida's constitution does not contain a "case or controversy" clause). (4) Florida decisions that are moot, however, do not destroy the court's jurisdiction when the questions are of great public importance or are likely to recur. (5)

Closely related to jurisdictional concerns is the question of whether a "party" has standing to bring an appeal. Save Anna Maria, Inc. v. Department of Transportation, 700 So. 2d 113 (Fla. 2d DCA 1997), discusses two lines of Florida case law on standing: One holding a party cannot appeal an order in its favor, and another holding it can appeal if it is aggrieved by some aspect of the order. Other standing issues can include whether a person or entity really became a party to the litigation, and when nonparties can participate in an appeal. (6)

Preserved or Fundamental Error

If the appellate court has jurisdiction, it will likely next consider if the alleged errors were preserved below. One of the basic principles of appellate practice is that to present an error to an appellate tribunal, the complaining party must have objected or otherwise brought the error to the attention of the lower tribunal and obtained a ruling. The preservation of error rule developed at common law is a part of the adversarial system. Often referred to as the "contemporaneous objection rule," it is intended to afford the lower tribunal an opportunity to correct errors. Yet, like many rules of law, there are exceptions. (7)

If a party failed to preserve an error below, it may still persuade the appellate court to consider the point under the fundamental error doctrine. The Florida Supreme Court has stated that to be fundamental, an error must go to the foundation of the case or the merits of the cause of action or it must be a denial of due process. It has cautioned that fundamental error applies only in rare cases. (8) That said, there are cases finding fundamental error in different contexts. (8)

The Florida Supreme Court has recognized another exception to the contemporaneous objection rule involving constitutional challenges, as illustrated in Cantor v. Davis, 489 So. 2d 18 (Fla. 1986). The petitioners asserted a statute was unconstitutional both on its face and as...