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July 30, 2012

Ten Important Issues for Appeal


This summary discusses ten important issues regarding appellate practice.

1. Motion for Rehearing/Reconsideration and Non-final Orders

A motion for rehearing or reconsideration that is directed toward a non-final order does not toll the time for filing a notice of appeal. Though litigants often use rehearing and reconsideration interchangeability, re-hearings tend to be directed toward final orders, whereas reconsiderations tend to be directed toward non-final orders. Therefore a motion directed toward a non-final order does not toll the time for filing.

2. Jury Selection

In order to preserve any objection to the jury or a specific juror, the objecting party must object to the jury at trial, as finally composed. This will preserve the objection for appeal and show that the objectionable juror really sat on the jury.

3. Admission and Exclusion of Evidence

Another problem that can be easily avoided involves the admission and exclusion of evidence. If a motion in limine is denied, the evidence will often be offered at trial. The moving party must still make a contemporaneous objection to preserve the issue for appeal.

If the trial judge has excluded evidence that is important, general references to the evidence will not be sufficient. To preserve the error for appeal, the party attempting to introduce the evidence must make an offer of proof, and proffer any documentary evidence. This will preserve the evidence for appeal.

4. Objections

To preserve an objection for appeal, the objecting party must make their objection specific and timely. If the objecting party would like the ruling reviewed, they must note the specific legal grounds for the objection when it is made. The appellate court will only review the decision if the legal grounds are stated and the trial court has made a ruling.

5. Directed Verdict

To challenge the sufficiency of evidence to go to the jury, a motion for directed verdict must be made at the end of the plaintiff's case and then renewed at the conclusion of evidence. As with other motions, when the motion is made the movant must establish grounds for a directed verdict. If a party fails to move for a directed verdict they waive their right to do so later.

6. Mistrial

A party must move promptly for a mistrial. The court has the power to wait to give its ruling on a motion for mistrial until after the jury comes back with a verdict. The moving party can also request that the trial judge wait to give its ruling until after the verdict. This allows the court to not waste resources on a new trial if the correct verdict is reached in the trial.

If a motion for mistrial is made after the jury has been dismissed, it would be considered a motion for retrial. Appellate courts prefer a motion for mistrial during the trial. This is because advocates sometimes use the motion for a retrial as a fallback strategy if the initial trial did not go their way.

7. Misconduct of Counsel

To preserve for appeal an objection for misconduct of counsel, the objection must be made at the time of the conduct and the objection must be sustained. The objecting party must then move for either a mistrial or a curative instruction. This will preserve the objection for appeal and allow for an easier standard of revision.

If an objection is raised but no curative instruction is requested, the issue is subject to the trial court's fundamental error analysis. Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1027 (Fla. 2000). The reason the fundamental error analysis should be avoided is because it is a very difficult four part test.

First the objecting party must prove that opposing counsel's comments is improper. Next, the objecting party must establish that the comment is so prejudicial that it will gravely impair fair consideration. Third, the improper comment must be incurable through a timely curative instruction. Finally, it must be established that the improper comment is so damaging that the public's interest in the system of justice requires a new trial. The fundamental error analysis can be avoided by a timely request for a mistrial or curative instruction.

8. Jury Instruction

To preserve for appeal an error made during the jury instructions, the objection must be made in a timely fashion. If there is an error involving the jury instructions then the objection must be made before the jury retires for deliberation.

A major problem is the preservation of a specific jury instruction that should have been given. To preserve for the record the trial court's refusal to give a specific instruction, the instruction must be submitted in writing. It must then be brought to the trial court's attention. Merely filing of a requested instruction will not suffice for preservation.

9. Jury Verdict

To preserve for appeal any error created by the receipt of an inconsistent verdict, an objection must be made before the jury is discharged. Inadequate verdicts are challenged by motions for new trial.

Another important consideration is the two-issue rule. The two-issue rule provides: Where there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced. Zimmer Inc. v. Birnhaum, 758 So. 2d 714, 715 (Fla. 4th D.C.A. 1998). The two-issue rule only applies when there are at least two issues resulting in only one basis for damage.

This economical rule can be avoided by simply requesting a special or interrogatory verdict form. This will reveal the justification for a specific verdict, and allow an appealing attorney to determine if the verdict was the result of the alleged error.

10. Motion for New Trial

A motion for a new trial requires an entered order to challenge the sufficiency of evidence or the excessiveness of a verdict. If the motion only alleges a lack in sufficiency of evidence, a review of an excessive verdict will not be preserved.


Jennings L. Hurt III
Managing Partner
Rissman, Barrett, Hurt,
Donahue & McLain, P.A.
201 E. Pine St.
15th Floor
P.O. Box 4940
Orlando, Florida 32802 - 4940
Off: 407 - 839 - 0120
Fax: 407 - 841 - 9726
Cell: 407 - 760 - 9000
Email: bucky.hurt@rissman.com


*This is a summary of an article that appeared in the July/August 2012 issue of The Florida Bar Journal.