Don't waive your appeal: a guide to preserving trial error.

• Author: Tan, Shannon
• Position: APPELLATE PRACTICE

Any attorney dreads receiving an adverse opinion from the appellate court with the phrase, "This issue was waived below." Losing is disappointing, but even more so when the appellate court did not address the merits of the otherwise compelling argument on appeal. Familiarizing yourself with the various ways of preserving error is crucial to avoiding waiving your argument on appeal. This article provides a brief overview of methods of preserving trial error--at each stage of a trial proceeding--for appellate review.

Motions in Limine

F.S. [section] 90.104(1)(b), as amended in 2003, provides that "[i]f the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." The party must secure a ruling from the trial court in order to preserve the issue for review. (1) The order granting the motion in limine or the transcript of the hearing on the motion must clearly indicate what specific evidence is being excluded. As the Second District held in Source Track, LLC v. Ariba, Inc., 958 So. 2d 523, 526 (Fla. 2d DCA 2007), "absent a transcript of the hearing on the motion in limine, we must affirm a ruling that is not fundamentally erroneous on its face."

If the trial court makes a tentative ruling or defers ruling on the motion in limine, the non-prevailing party must either proffer the excluded evidence (2) or contemporaneously object to the admitted evidence at trial (3) in order to preserve the claimed evidentiary error for appellate review. During trial, if a party violates a definitive ruling on a motion in limine, the opposing party is still required to make a contemporaneous objection. If the objection is sustained, the party must then move for a mistrial to preserve the error for appeal. (4)

Jury Selection Issues

For an appellate court to consider whether the trial court erred in refusing to strike a potential juror for cause, the following three steps must be taken: 1) Exhaust all remaining peremptory challenges; 2) request additional peremptory challenges that are denied; and 3) identify specific jurors whom the party would have excused if possible, but who ultimately served on the panel. (5) The specific basis for challenging the juror in question must be raised during voir dire; if not, it is not preserved for appeal. (6)

The preservation of a challenge to a prospective juror also requires a party to make more than one objection. "When a trial court denies or grants a peremptory challenge, the objecting party must renew and reserve the objection before the jury is sworn." (7) If the party fails to renew the objection prior to the jury being sworn, an appellate court will generally presume that the objecting party has abandoned its prior objection and is satisfied with the selected jury. (8) Renewal of an objection, however, may be unnecessary if the initial objection is made close to the end of jury selection and several minutes prior to the jury being sworn. (9)

The Contemporaneous Objection Rule

Proper preservation of error during a trial generally requires three steps. First, the party must make a timely, contemporaneous objection at the time of the alleged error. (10) Second, the party must state a legal ground for that objection. Third, for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection below. (11) "While no magic words are required to make a proper objection, the concern articulated in the objection must be sufficiently specific to inform the court of the perceived error." (12)

Motions for Directed Verdict

Prior to the 2010 amendment to Fla. R. Civ. P. 1.480(b), a defendant was required to move for a directed verdict at the close of the plaintiff's case, then to renew the motion again at the close of all the evidence. (13) A defendant who failed to renew his or her motion for directed verdict at the close of all of the evidence was precluded from challenging the sufficiency of the evidence presented at trial on appeal. (14) Following the 2010 amendment, however, it is no longer necessary to renew a motion for directed verdict at the close of all of the evidence to preserve the issue for appeal. (15)

Nonetheless, a defendant is still required to file a post-verdict motion for judgment in accordance with the prior motion for directed verdict to preserve the issue for appellate review. (16) The motion for judgment in accordance with the motion for directed verdict must be served within 10 days after the verdict (or if a verdict is not returned, after discharge of the jury). (17) The failure to serve the motion within this 10-day period constitutes a waiver. (18) The appellate court will recognize an exception when "the insufficiency of the evidence constitutes plain error apparent on the face of the record which if not noticed will result in a manifest miscarriage of justice." (19) If a party mislabels the motion for directed verdict as a motion for new trial, an appellate court will look to the substance of the motion, not the label, in determining whether the issue is preserved. (20)

A co-defendant must object to a trial court's decision to grant a directed verdict in favor of the other defendant in order to preserve the right to challenge that directed verdict on appeal. (21) This is because a co-defendant must object or join in the objection of the other defendant to preserve the issue for...