Failure to Preserve Error Costs Plaintiff a New Trial

Preservation of error is an issue that is discussed so frequently by appellate lawyers that it tends to be met with eye rolls by other lawyers. However, we keep talking about preservation of error because it is one of few things that can kill an appeal before it ever gets addressed on the merits. For this reason, appellate lawyers can add value to a trial team by ensuring that errors made at trial are properly preserved for appeal–freeing up trial laywers to focus on evidence, testimony and other substantive matters.

A recent case out of the Fifth District Court of Appeal underscores, yet again, the importance of proper preservation of error. Hang Thu Hguyen d/b/a Millenia Day Spa v. Wigley, No. 5D13-1925, 2014 WL 2968860 (Fla. 5th DCA July 3, 2014). Plaintiff Wigley filed a lawsuit against Millenia seeking damages for injuries sustained during a paraffin wax manicure. During closing argument, Millenia’s counsel made certain statements that Plaintiff’s counsel deemed improper. Plaintiff’s counsel objected that the statements were improper, and those objections were sustained by the trial court. Plaintiff asked for a curative instruction with respect to one of the objectionable statements, and the trial court granted the request.

After the jury returned a Plaintiff’s verdict ascribing 80% of fault to the Plaitniff, Plaintiff filed a motion for new trial based on the improper remarks made by Millenia’s counsel during closing. The trial court granted the motion for new trial, but the Fifth DCA reversed. Why? Because, in objecting to Millenia’s statements, Plaintiff’s counsel never asked for a mistrial.

“When a party objects to instances of attorney misconduct during tial, and the objection is sustained, the party must also timely move for a mistrial in order to preserve the issue for a trial court’s review of a motion for a new trial.” Companioni v. City of Tampa, 51 So. 3d 452 (Fla. 2010).

Because the Fifth DCA found no fundamental error in the defendant’s closing arguments, there was no support in the record for a new trial, and the trial court order granting a new trial was reversed.

Even the most seasoned trial lawyers, in the heat of battle, can and do get hung up on these technicalities in the law. In high stakes litigation especially, best practices would dictate that at least one lawyer be assigned to focus on preservation of error issues during the trial.

Addressing Preservation of Error


One of the more difficult topics to broach with a litigant who is consulting regarding an appeal is the issue of “preservation of error.”  At its core, the appellate process is concerned, not with who was right and who was wrong, but whether the trial court made mistakes.  However, that is not all that is required.  An error that is not brought to the trial court’s attention before the end of the trial, when the trial court had an opportunity to correct this mistake, is not an error the appellate court can or will review.  This technicality is something that frustrates a lot of litigants.  Frequently heard from the litigant:  “But if the trial court made a mistake, why didn’t my trial lawyer object?”  There are a lot of reasons why a trial lawyer may fail to object to (or preserve) an error.  Sometimes, it is inexperience.  Sometimes, there is a tactical reason for not raising the objection.  More frequently, however, it is that, in the heat of trial, a larger issue has the trial lawyer’s attention, and they simply are not focused on what may be an escoteric legal principle or a minor procedural issue.  It’s understandable that, especially in a difficult case, the trial lawyer is focused on winning the trial, and not thinking ahead toward the myriad of possible avenues he or she way wish to explore on appeal.  For that reason, appellate lawyers (this author included) often recommend that trial lawyers bring an experienced appellate practitioner onto the trial team early in the proceedings.  An appellate counsel at trial table can be an invaluable resourse when an appeal of the trial (by either party) is all but certain.  Of course, this recommendation can be met with eyerolls from trial lawyers who recognize that engaging appellate counsel is another expense they have to explain to a cost-sensitive client.  In hindsight, however, even the most cost-senstive clients would have gladly paid the appellate lawyer’s appearance fee at trial if it would have increased their chances of getting a reversal or a new trial before a new jury. 

SCOTUS’s DOMA Decision Illustrates Complexities of Appellate Practice

Image This post was contributed by Hallie Fisher, a third-year law student Duke University School of Law and Summer Associate at LDDK&R.

Last month the Supreme Court issued what can only be deemed a landmark ruling, United States v. Windsor, No. 12-307, 2003 WL 3196928 (U.S., June 26, 2013), which held that Section 3 of the Defense of Marriage Act, commonly referred to as “DOMA,” was unconstitutional.  DOMA was enacted in 1996 to ensure, among other things, that states which restricted marriage to opposite-sex couples would not be required to recognize same-sex marriages lawfully performed in other states.  While much of DOMA remains in effect, the Windsor case resulted in the striking of DOMA’s Section 3, which purported to define marriage only as the union between one man and one woman, and prohibited the federal government from recognizing same-sex marriage for purposes of federal law, as unconstitutional.

The definition of marriage adopted by Section 3 was significant because the federal government confers thousands of benefits upon married couples, including: special treatment under the Tax Code, employment and pension benefits, and even support relating to medical privacy and hospital visitation, to name a few.  DOMA effectively denied lawfully-married same-sex couples these benefits.

As with many pivotal cases on civil and social issues (i.e., Roe v. Wade, Loving v. Virginia, and their progeny), what many articles gloss over is just how these cases get before the U.S. Supreme Court.  The Windsor decision started with one person: Edie Windsor, a widow who had legally married her wife, Thea Spyer, in Canada in 2007. Windsor’s and Spyer’s marriage had been recognized as valid under the principle of comity by the state of New York, where the couple was domiciled.  After Spyer passed away in 2009, Windsor was required to pay over $300,000 in estate tax on her late wife’s estate. A widow from an opposite-sex marriage would not have been required to pay this estate tax because under federal law “any interest in property which passes or has passed from the decedent to his surviving spouse” is excluded from taxation.   26 U.S.C. § 2056(a).

Windsor filed suit against the United States in the U.S. District Court for the Southern District of New York. Windsor prevailed on the merits in the District Court, and the IRS was ordered to refund the tax paid with interest. The decision was appealed to the Second Circuit United States Court of Appeals, which affirmed the District Court’s ruling, holding that Section 3 of DOMA violated the equal protection rights granted by the Fifth Amendment.  Before the appeal was heard by the Second Circuit, the Solicitor General of the United States petitioned the Supreme Court for certiorari, which was ultimately granted, and both parties delivered oral arguments in late March of 2013.

The progression of the Windsor case depicts many of the standard aspects of appellate procedure.  However, one unique aspect of the Windsor case is that the federal government did not defend DOMA’s constitutionality. Generally the Department of Justice is tasked with representing the federal government in matters relating to statutes enacted by Congress, such as DOMA.  Here, though, the Department of Justice, at the insistence of President Obama, refused to defend the Act’s constitutionality.  At the same time, the Internal Revenue Service, an executive agency, was enforcing the provisions of DOMA.  As a result of the government’s refusal to defend DOMA, the Bipartisan Legal Advisory Group (BLAG), subsidized by fundraising efforts of the Republicans of the House of Representatives adopted the defense of DOMA, hired counsel to defend DOMA’s constitutionality, and was granted leave to intervene in the case.

BLAG’s defense of DOMA highlights one of the more challenging aspects of appellate practice.  In cases argued before the Supreme Court, and in appeals at all levels, there are often complex or technical legal questions at issue that may ultimately influence whether the case is affirmed or reversed. For instance, although the main issue in Windsor was DOMA’s constitutionality, another significant issue was whether BLAG even had standing to file an appeal.   It is often the job of appellate counsel to help their clients understand that appeals are not always centered around the main issue at trial, and there can be complex issues raised in an appellate proceeding that may subvert a jury verdict or judge’s ruling even though common sense may dictate another result.

Having an attorney who will be able to understand and argue the facts and complexities of a case competently may not be the only concern, though. During the appellate stages of high stakes cases, especially those involving constitutional and social issues, it is common to have interest groups weighing in on both sides of the issue. In Windsor, literally hundreds of amicus briefs were filed on both sides of the issue, with companies like Google, Starbucks, and Aetna supporting Windsor’s case, and many religious organizations supporting BLAG and the constitutionality of DOMA.  In such high stakes cases, it is important to have appellate counsel who will be able to reconcile the client’s individual needs with the public policy considerations of the outcome of the case.  One should never lose sight of the fact that bringing a case before the Supreme Court, which has the potential to change laws that affect individuals throughout the nation, primarily affects the individual parties to the case.

While Windsor was celebrated as a victory, the victory is small in that the decision left open many important issues, such as adoption rights for gay couples, employer treatment of gay couples under federal laws like ERISA, and even protections in the criminal arena. If individuals are affected by the questions Windsor left open, it is important they contact competent counsel positioned to take on such issues. This is especially important since such cases will not only affect the individual petitioners, but could have important precedential value for others who are similarly situated.

Fifth District Changes Procedure for Obtaining Extension of Time

CalendarBeginning March 1, 2013, a party seeking an extension of time to file an intial, answer, or reply brief and who has obtained the agreement of opposing counsel may file a “notice of extension of time” in lieu of a motion requesting an extension. Such a notice will be accepted for up to 90 days for an intial or answer brief and 60 days for a reply brief. Only the party seeking the extension need sign the notice, and no order will issue upon the Court’s receipt. Any extension beyond 90 days for initial or answer briefs or 60 days for reply briefs must be by motion.  For additional details, including the approved form of the notice, see the Court’s administrative order at

Florida’s Fifth District Court of Appeals Adopts E-Filing

The Fifth District Court of Appeals is in the process of transitioning to the eDCA electronic filing system currently in use by the First District.

Beginning on September 1, the Fifth District will begin offering email service of all acknowledgment letters, orders, opinions, and mandates through its eDCA system.  Registered users will receive electronic notice of these filings, and will be able to retrieve the documents online.  Until October 1, the court will issue both electronic and paper documents.  After that, service of court documents will be exclusively through eDCA.

On September 1, the Court will also begin accepting electronic filings via the eDCA system.  Documents currently required by Administrative Order 5DAO08-0 to be e-mailed to the court may be filed electronically through eDCA, in lieu of e-mailing. An electronically filed document should not be filed on paper. However, if a document is filed on paper, compliance with the existing email requirement is required. After October 1, electronic filing of such documents will be mandatory, and paper filings will no longer be accepted.

Until further notice, the only documents subject to the court’s electronic filing order are:

  • Briefs filed under Rules 9.110, 9.130, 9.140, 9.145, 9.146 and 9.160;
  • Petitions and responses under Rule 9.100.
  • Responses to Orders of the Court.
  • Motions for rehearing or relief under Rules 9.330 and 9.331.
  • Transcripts
  • Appendices

To receive and file documents electronically, you must be registered with the court and must have received a confirmation email that the registration has been accepted.  To register, visit  A eDCA primer is available on the Court’s website at

Must Appellate Courts Really Consider Unfiled Briefs?

While it may seem fundamental to the tenets of justice, the Fourth District Court of Appeal issued a written opinion last month holding that an appellate court’s failure to consider the appellee’s answer brief deprives the appellee of procedural due process.  In Oakland Park MRI, Inc. v. USAA Casualty Insurance Co., Case No 4D11-3521, 37 Fla. L. Weekly D1277a (Fla. 4th DCA May 30, 2012), the Circuit Court of Broward County was asked to review, in its appellate capacity, a county court judgment.  The circuit court’s opinion reversed the judgment indicating that the court reviewed a singular brief in the absence of an answer brief.

Interestingly, the Fourth District did not disclose why the circuit court disregarded the answer brief in the first place.  Was it untimely filed?  Was it improperly indexed?  Or did the circuit court simply ignore it?  The opinion arguably leads the reader to conclude the latter.  However, a review of the circuit court docket reveals that the notice of appeal was filed on March 29, 2010.  After several motions for extension, USAA filed its initial brief on October 18, 2010.  On February 8, 2011, the circuit court entered an order to show cause within 10 days why the court should not decide the appeal without an answer brief.  No response to the order to show cause was filed.  The circuit court waited another five months before rendering an opinion on July 11, 2011.  Four days later, on July 15, 2011, Oakland Park finally filed its answer brief along with an emergency motion to vacate opinion and to permit filing of an answer brief.  The Fourth District quashed the opinion without discussing the merits of the emergency motion to vacate.

Interestingly, Oakland Park, the party that effectively prevailed in the Fourth District, has filed a Motion for Reconsideration, which is pending.    Perhaps because the court refused to consider Oakland Park’s argument that the circuit court departed from the essential requirements of law in reversing the county court judgment.

Stay tuned for updates on this curious case to see whether an appellate court really must consider unfiled or untimely-filed briefs before it can render an opinion.

Update:  Oakland Park’s Motion for Reconsideration was denied, and the court has issued its mandate.

Be Wary of the Vague Forum Selection Clause

ImageAnother practice tip emerges from a May 16, 2012 opinion out of Florida’s Fourth District Court of Appeals.  In Lopez vs. United Capital Fund, LLC, 37 Fla. L. Weekly D1176b (Fla. 4th DCA May 16, 2012), the court affirmed a trial court’s refusal to enforce certain forum selection clauses based upon the conclusion that the clauses at issue were “totally unspecific” and did not “tie the selection of a forum to any mutable and identifiable fact.”  The clauses at issue stated, in relevant part:

Each of the parties hereto agrees that any such claim or cause of action shall be tried by a court trial without a jury in Seller’s county and state of choice. . . Buyer agrees that a legal mediation shall take place in county and state of Seller’s choice before any court trial . . . .

United Capital Fund, LLC, filed suit against multiple defendants in Martin County, its home county.  The defendants, who were “Sellers” under the contract, argued that the forum selection clause was valid and enforceable and sought to move the forum to Hillsborough County, their county of choice.  The trial court refused to enforce the forum selection clause.  The appellate court affirmed.

Acknowledging the judicial preference for forum selection clauses to “eliminate uncertainty as to the nature, location and outlook for the forum in which the parties might find themselves,” as quoted in Manrique v. Fabbri, 493 So. 2d 437, 440 (Fla. 1986), the appellate court found that the clauses at issue were founded in “total uncertainty.”  The court relied primarily on a Georgia Court of Appeals opinion interpreting a similar provision which set the forum in the “state of choice” of one of the parties.  See Central Ohio Graphics v. Alco Capital Resource, Inc., 472 S.E.2d 2 (Ga. Ct. App. 1996).

The Fourth District distinguished indefinite clauses like the one at issue from enforceable “floating forum” selection clauses, which set forum in a specific, but unidentified location.  The latter will “tie the selection of a forum to [a] mutable and identifiable fact” (i.e., the principal place of business, main office, or headquarters of a party).  The former is based upon the whim of the selecting party, which cannot be determined by the other party and is subject to change at any time. Therefore, the court said, there can be no meeting of the minds at the time of contract.

Accordingly, it is incumbant upon practitioners to understand the subtle distinction between a floating forum clause and an indefinite (and unenforceable) forum selection clause.  Where the location cannot be determined on the face of the contract or by the application of easily discernible facts, the clause will not pass muster.

What Do You Mean By “Fifty Miles”?

A recent case out of Florida’s Fifth District Court of Appeal sets forth an important practice tip for memorializing mediated settlement agreements.  In the case of Tucker v. Liebknecht, Case No. 5D11-681, 37 Fla. L. Weekly D1088a (Fla. 5th DCA, May 4, 2012), the parties, who had a child together but were not married, entered into a Mediated Paternity Agreement (“MPA”) that contained a provision concerning relocation.  The provision stated that “If the parent that the child lives with the majority of the time intends to relocate more than 50 miles from the present home, the parent must obtain permission in writing from the non-residential parent or obtain a prior Court Order of Approval.”  The court’s Final Judgment adopted and ratified the MPA.

Fast forward several years, and the mother, with whom the child is living, decides to relocate to a new home, which, by car, is more than 50 driving miles from her current home.  However, the new home is within a 50 radius of the old home.  The trial court used driving miles to determine that the new home exceeded the 50-mile restriction, and temporarily enjoined the mother from relocating.  The mother appealed contending that the trial court should have used a straight-line test, pursuant to which the new home was within the 50-mile restriction.

The Fifth District agreed with the mother, and determined that the unambiguous language of the MPA could not be rewritten.  “We believe that utilizing a method of measurement other than the straight line method would create uncertainly and generate needless debate.  In the absence of any statutory or contractual provision governing the manner of measurement of distances, the general rule is that distance should be measured along the shortest straight line, on a horizontal plane and not along the course of a highway or along the usual traveled way.”

Since the Fifth District has now taken a definitive position on the issue, Florida practitioners are cautioned to consider and be specific in defining how distances should be calculated in mediated agreements.

Why Do You Need an Appellate Lawyer?

Whether you are a party involved in litigation or are a trial lawyer preparing for trial, one question that you may ask yourself is, “Why do I need an appellate lawyer?”   The answer is revealed by the following analogy:  If during brain surgery, you suffered a heart attack, would you question why your brain surgeon is consulting with a cardiologist?  Of course not.  You know your brain surgeon knows everything about the brain.  You’ve entrusted him with your life.  However, a brain surgeon is focused on knowing everything about the brain, and may not have the ability or desire to keep updated on the latest research and developments that arise in cardiology.

The distinction between trial and appellate lawyers is similar to that of doctors practicing in different specialties.  Trial lawyers are experts at building a case from scratch, ferreting out the facts from adverse parties, and presenting evidence in a manner that will persuade the jury or judge.  Trial lawyers think on their feet and quickly adjust their presentation to comport with rulings from the bench as they are made.  Appellate lawyers, on the other hand, have a different focus.  Appellate lawyers view every ruling from the bench as a possible issue for appeal.  They are viewing the trial, not as a presentation of facts, but as a compilation of legal procedures and determinations, and are focused on making sure that, if there is an appealable issue or error that arises before or during trial, the error is properly preserved for appeal.  The appellate lawyer also knows when an error is immediately appealable, or whether a matter must be taken to the appellate court at the conclusion of the case.

Because of their very different practical focus, appellate lawyers employ a different set of skills than the skills employed by trial lawyers.  Successful trial lawyers are adept at keeping juries of non-lawyers engaged and at distilling complex legal concepts into easily-digestible issues.  Appellate lawyers, on the other hand, will spend numerous hours alone in the library (or on the computer) researching the complexities of a particular legal issue, and will then prepare a written brief presenting the entirety of their legal arguments on paper.  Oral argument, when it is granted, is the only opportunity the appellate lawyer has to appear before the tribunal, and then, the lawyer is speaking to learned appellate judges, not juries.  The appellate lawyer has to be prepared to respond to the questions of the panel and discuss, often on a more philosophical level, why the law should be interpreted in a manner that favors his or her client.

Of course, there are many trial lawyers who handle their own appeals, just as there are many doctors who practice general medicine.  However, where the stakes are high, and you want to ensure you have put your best legal foot forward in a particular case, hiring an appellate lawyer as a consultant from the beginning of the case can be cost-effective insurance that all possible errors made at the trial court level can be addressed by the appellate court.