Tipping the ole tipsy coachman over in his grave: an inequity of appellate review.

• Jurisdiction: United States
• Author: Muniz, H. Michael
• Date: 01 July 2007

'To name a thing is to make it real." (1) Well, the colorfully monikered tipsy coachman doctrine, (2) a legal maxim of appellate review, (3) became real in Florida when it first provided that if a trial court reaches the right result, albeit for the wrong reasons, the trial court's decision will be affirmed if there is any basis in the record to support the trial court's judgment. (4) This venerable doctrine is attributed to, then soon-to-be chief justice, Logan Edwin Bleckley, who was "regarded by Georgia lawyers of his vintage ... to be the greatest judge who ever adorned the Georgia Supreme Court." (5)

It may be that we would draw very different inferences, and these differences might go to uphold the judgment; for many steps in the reasoning of the court below might be defective, and still its ultimate conclusion be correct. It not infrequently happens that a judgment is affirmed upon a theory of the case which did not occur to the court that rendered it, or which did occur and was expressly repudiated. The human mind is so constituted that in many instances it finds the truth when wholly unable to find the way that leads to it. (6)

"The pupil of impulse, it forc'd him along,

His conduct still right, with his argument wrong;

Still aiming at honor, yet fearing to roam,

The coachman was tipsy, the chariot drove home." (7)

Justice Bleckley reached out to Oliver Goldsmith's poem, Retaliation: A Poem, (8) to conclude the Georgia Supreme Court's decision in Lee v. Porter, 63 Ga. 345 (Ga. 1879). While we may never know what prompted Justice Bleckley, we do know that the appellant failed to provide a sufficient record on appeal to enable the appellate court to find error by the trial court. (9) That holding left us with the unanswered question: Why did the great Justice Bleckley invoke or enliven, in obiter dictum, Goldsmith's tipsy coachman, when it was not necessary?

Obiter dictum notwithstanding, close to a century later, the Supreme Court of Florida, reminded of Justice Bleckley's quote from Goldsmith's Retaliation, (10) expressly adopted Georgia's common law tipsy coachman doctrine. (11)

Many steps in the reasoning of the trial judge may be defective and still his conclusion be correct, and the judgment may be affirmed upon a theory of the case which did not occur to the court that rendered it. Justice Bleckley of [the Supreme Court of] Georgia was the first to see the analogy of this legal concept to some lines written by Oliver Goldsmith (1728-1774) in a poem entitled Retaliation [1774], lines 45-48. (12)

While a couple of Florida courts have recognized Justice Bleckley's quote from Goldsmith's poem, (13) no Florida court has recognized his selective quote was merely obiter dictum nor considered the actual poem, beyond some few "coachman" lines from where this legal concept arose, or the true origin of the doctrine. Oliver Goldsmith's Retaliation was a poem written during the 18th century, ironically, in the year of his death in which Goldsmith responded to a challenge by David Garrick, the actor, that they compare their skill at epigrams by writing each other's epitaph. (14) Goldsmith then wrote Garrick's epitaph along with those of 10 others he imagined gathered about a table, including himself. (15) Thus, the underlying origins of the tipsy coachman seem to be about 11, imagined dead men including its author. (16) Stated otherwise, the tipsy coachman, essentially, rose from the dead. (17)

The tipsy coachman or "dead man's" doctrine is a firmly established appellate doctrine in Florida (18) although, when adopted from Georgia, the doctrine was already a settled rule of Florida jurisprudence, but just not named the "tipsy coachman." (19) Thus, finally named, the doctrine became real. (20) Nevertheless, as is evident, the tipsy coachman had nothing to do with the law or with rules of appellate review, but rather was created by analogy, based upon a poem.

While the tipsy coachman was first dead, only later to represent life, (21) Florida's doctrine has lived on, breathing new life into the tipsy coachman, even expanding well beyond its foundational roots. As Star Trekkies might say, the Supreme Court may have launched the tipsy coachman beyond the final frontier, where no other jurisdiction or coachman has gone before. (22) Thus, risen from the dead and incorporated into a poem; quoted a century later in obiter dictum by "The Supremes" of Georgia; adopted by Florida nearly two centuries after its creation; and the coachman may have since been cast upon parts unknown. Tipsy coachman, you've come a long way, baby. (23)

Florida Supreme Court Materially Expands Tipsy Coachman Doctrine

Based on the tipsy coachman doctrine, the Florida Supreme Court has since determined that significantly distinct and materially lessened standards only apply to the appellee insofar as the permissible arguments that may be presented on appeal. (24) Unfortunately for the appealing party, the Florida Supreme Court has unfairly, inequitably, under the apparent guise of reason and logic, stacked the proverbial deck against the appellant. (25) Moreover, the expanded doctrine further raised the appellant's bar given the "hoariest principle of appellate review ... that every presumption is in favor of the ruling of the trial court." (26) Notably, even then former Chief Justice Pariente, in dissent, viewed the court's majority as "giving the tipsy coachmen free rein" and concluded, "I find no authority for using the [tipsy coachman] rule to quash or reverse a lower court decision on a theory not argued by the party challenging the ruling in the reviewing court." (27) Astonishingly, the majority applied a reverse, or extremely impaired, tipsy coachman. A year later, the Supreme Court looked back to its seminal decision rendered during the final year of the last century:

In Radio Station WQBA, (28) this [c]ourt held that the tipsy coachman rule does not limit an appellee to only those arguments that were raised in the lower court. In that decision, we stated: If an appellate court, in considering whether to uphold or overturn a lower court's judgment, is not limited to consideration of the reasons given by the trial court but rather must affirm the judgment if it is legally correct regardless of those reasons, it follows that an appellee, in arguing for affirmance of a judgment, is not limited to legal arguments expressly asserted as grounds for the judgment in the court below. It stands to reason that the appellee can present any argument supported by the record even if not expressly asserted in the lower court.... An appellee need not raise and preserve alternative grounds for the lower court's judgment in order to assert them in defense when the appellant attacks the judgment on appeal. (29)

However, the Supreme Court's reasoning is fundamentally flawed. (30) Simply because an appellate court may affirm a trial court's judgment, if legally correct, should not or ever excuse or relieve the appellee from the responsibility to present all its arguments in the trial court. There simply does not appear to be any sound, self-sustaining rationale why the appellee should have been unjustly rewarded, essentially, for failing to raise all its arguments in the trial court, while the appellant is restricted to its arguments raised below. (31) Furthermore, the Supreme Court's expanded doctrine has not served but failed to protect basic, fundamental constitutional rights. (32)

The lack of due process protection, the fundamental unfairness, and the seemingly obvious inequity of the Supreme Court's reasoning is exemplified in a case where the appellee did not argue that a written instrument was ambiguous before the trial court, notwithstanding multiple opportunities to do so. (33) Nevertheless, the trial court, over timely objection, admitted parol evidence concerning the provisions of the instrument. Even though the record demonstrates that the instrument is, indeed, ambiguous, the appellee who failed to argue that the instrument at issue was ambiguous in the trial court, inconceivably, would be permitted to argue ambiguity for the first time on appeal. (34)

Under these or fairly similar circumstances, the appellee should never be permitted to further argue on appeal, inter alia, that the parol evidence was properly admitted in seeking affirmance. (35) However, the Florida Supreme Court's materially expanded tipsy coachman doctrine would permit these newly-raised arguments on appeal under Dade County Sch. Bd. v. Radio Station WQBA, 731 So. 2d 638 (Fla. 1999), as well as Malu v. Security Nat'l Ins. Co., 898 So. 2d 69 (Fla. 2005). Furthermore, in this case, the appellee would not even be charged with improperly asserting inconsistent positions between the trial and appellate courts. (36) The expanded doctrine would further permit the appellate court to affirm based upon its de novo determination (37) that the instrument at issue was ambiguous utilizing, a fortiori, the parol evidence to construe it. Contrary to constitutional due process principles, the Florida appellate court could also affirm the trial court's judgment even if neither party raised the issue below or on appeal. (38)

That an appellate court will affirm the trial court's judgment, if it is right regardless of the reasons, (39) is a far cry from allowing the appellee to have a tactical, unfair, and material advantage by combing the record for arguments that the appellee failed to and should have made in the trial court. (40) Accordingly, it is the intended purpose of this article to inform Florida practitioners, particularly appellate practitioners, of this materially expanded appellate doctrine. Additionally, and with all due respect to the court, the Supreme Court of Florida should recede, at its earliest opportunity, from Radio Station WQBA and Malu as well as all other decisions that may have expanded the tipsy coachman doctrine beyond its foundational roots. As aptly...