Appeals 101: What is an Appeal?

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What exactly is an appeal, and how is it different from a trial court action? The most important answer I can give you is what an appeal is not: it is not simply a “do over” where the appellate court gets to re-weigh the evidence and substitute its judgment for that of the trial judge.

Instead, an appeals court is a reviewing court, and it can only review for “preserved error.” There are two components to “preserved error.”

What is Preserved Error?

First, there has to be error of some kind. This is generally either a misinterpretation of the law, or a misapplication of the law to the facts, or rarely an “abuse of discretion” in interpreting the facts (like finding the facts sufficient when they clearly are not, and no reasonable judge should have found them to be sufficient). In addition, some “calls” that a trial court makes, even if we think it was the wrong call, are reviewed for discretion, and the appellate court can’t overturn it even if the appellate judges think “I would have done it differently if I were the trial judge.”

Second, it needs to be preserved. That is, there needs to be a proper objection made and ruled on, or the argument that you want to make on appeal has to have been made to the trial court, and that has to be reflected on the docket so that the appeals court can see exactly what was put in front of the trial court. In civil cases in Florida state courts, the parties need to hire a court reporter for hearings themselves and then pay for a transcript of the hearing in order to show the appellate court what happened at a hearing. Without a transcript, it is often impossible to make the required showings to win on appeal because you can’t show that your arguments and objections were preserved. (In Federal Court and in Florida criminal cases, proceedings are recorded and transcripts can be ordered at a later date without the parties’ needing to order a reporter).

Why you need a court reporter

Because of this preservation requirement, it often impossible to appeal if you have not taken all of the steps necessary to ensure that there is a complete record for the appellate court. It breaks my heart when I see cases that have real issues that simply were not preserved, and therefore make an appeal impossible to win. The most important thing you can do is make sure there is a court reporter at any hearing where important issues will come up — especially for summary judgment or for trial, but also for any other issue you think can affect the outcome of the case. Yes, there is a cost to this: Most court reporters charge an “appearance fee” for attending a hearing or trial. You do not need to order the actual transcript unless you need it for an appeal to assist with an argument before the trial court, but there is no transcript to be ordered if there is not a court reporter there. Zoom hearings are generally not recorded and you cannot assume there will be court reporter or recording just because the hearing was conducted by Zoom. This is why one of the first questions we ask when we assess an appeal is “was there a court reporter at the hearing”?

Standards of Review Matter

When we assess a case for possible appeal, we always start with very important question: What is the standard of review? I already talked about them above, though not in these terms. A standard of review is the lens through which the appellate court will review the trial court’s work. There are three main standards of review: Abuse of Discretion, De Novo, and sufficiency of the evidence.

Abuse of Discretion. If the trial court made what the law considers a discretionary call, then the appellate court will apply the “abuse of discretion” standard. And this means that the appeals court is looking for big problems, not just areas where the appellate judges might have made a different judgment call. This standard of review applies to most factual issues, as well as many rulings where the rules of procedure give the trial judge discretion to manage its docket. The abuse of discretion standard means that the trial court’s ruling has to be so wrong that no reasonable person would have come to the conclusion that the trial judge did. Appeals courts are very clear that it is not their job to second guess the trial court’s judgment calls, and that the trial court judge is the one who is “in it,” viewing live testimony and making split second judgment calls. Those judgments will not be disturbed on appeal unless they rise to the level of error, even if the appeals judges might have done things differently. If reasonable minds can differ, then the appellate court will defer to the trial court’s judgment.

De Novo. “De novo” is Latin for over again, or anew. As a standard of review, it means that the appeals court will look at the issue anew, and not give any deference to the trial court. This kind of review applies mostly to interpretation of statutes or contracts or the meaning of the law.

Sufficiency of the Evidence. When an appellate court is reviewing how the trial court applied the facts, is sometimes looking just to see if there is sufficient evidence in the record to support the trial court’s application of the law to the facts. The appellate court may be looking to see, for example, whether there is evidence to support every prong of a legal test.

Sometimes, more than one standard of review can apply in the same case — there may be several issues, with different standards of review, in the same case.

Assessing Your Appeal

We hope this article has been helpful to you as part of our continuing Appeals 101 series [link]. But remember, this article is for information only, and cannot really replace legal advice specific to your situation.
If you plan to handle your appeal by yourself, we recommend you consult the Florida Bar Appellate Practice Section’s Pro Se Handbook [link] for additional information. If you would like our professional analysis of your possible appeal, please contact us quickly, as there are significant deadlines in appeals that must be met or your appeal may be waived. You can request a review of your appeal by filling out our intake form here [link]. Based on the intake form, we will be able to quote you a fee for conducting an appeal assessment. Our appeal assessments look at these preservation issues as well as the underlying legal and factual issues to determine whether we believe we can make a winnable argument on appeal.

Supreme Court Again Amends Preservation Requirements of Rehearing Rule

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The Florida Supreme Court has once again amended the language of Florida Rule of Civil Procedure 1.530 and Florida Family Law Rules of Procedure 12.530 — this time, to state that “to preserve for appeal a challenge to the failure of the trial court to make required findings of fact, a party must raise that issue in a motion for rehearing under this rule.” See In re Amendments to Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.630, No. SC2022-0756 (April 27, 2023) [.pdf] (bolding indicates new language).

This language regarding “required findings of fact” replaces language stating that the motion is required “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment.” (emphasis added). The Court explains that “This change makes both rules applicable to all orders, not just final judgments, and makes clear that the rules apply only when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court’s order.” Id. at 2.

The statement that it makes the rules “applicable to all orders” is somewhat unfortunate wording, in that it could be read to infer that a 1.530 motion is requried after every order if findings of fact are at issue. But a Rule 1.530 or 12.530 motion is still a motion directed only to jury verdicts and judgments, according to the unchanged portion of the rule. This means that if there is an interlocutory order that is missing findings of fact, even if you raise the issue in an interlocutory motion for reconsideration, that may not be sufficient to preserve the issue for appeal. Rather, the rule should be read to mean that a post-verdict or post-judgment motion for Rehearing must address insufficient findings of fact, whether those findings are found in the final judgment itself or in an interlocutlory order, in order to preserve the issue for appeal.

This unfortunate wording also opens the door for possible waiver of the right to appeal altogether. What if the order that does not have a proper finding of fact is non-final but still directly appealable pursuant to Rule 9.130? This change and the Supreme Court’s implementing “all orders” language could be read to state that you must file a motion for rehearing in order to preserve a challenge to the findings in that non-final order. Yet, a Rule 1.530/12.530 only acts to toll the time for appeal if it is “authorized and timely.” And there is a plethora of case law that states that a motion for reconsideration directed at a non-final order does not toll the time for appeal. For example, as the Fifth District has explained:

A motion for reconsideration does not toll the time to file an appeal from a non-final order. See Caufield v. Cantele, 837 So.2d 371, 376, n. 3 (Fla. 2002). The reason, of course, is that motions addressed to non-final orders are not “authorized” within the meaning of Rule 9.020(h), Florida Rules of Appellate Procedure, and thus do not postpone rendition.

Agere Sys. Inc. v. All Am. Crating, Inc., 931 So. 2d 244, 244 (Fla. 5th DCA 2006).

Given the mixed messages here, I recommend two courses of action:

(1) Make sure any post-judgment or post-verdict motion for rehearing addresses all required factual findings you may want to challenge on appeal, not just those missing from a final order or judgment.
(2) If the order you wish to appeal is an appealable non-final order — which is fairly common in post-dissolution family court cases, in particular — you should both file a motion for rehearing within 15 days of the entry of the to-be-challenged order, and file a timely notice of appeal within 30 days of entry of the order. Do not assume that the motion for rehearing will toll the time for appeal. You can then ask the appellate court to relinquish jurisdiction to the trial court to rule on the rehearing motion. This will ensure that you don’t lose jurisdiction for the appeal while awaiting the trial court’s reconsideration decision.

By focusing on the failure to make findings rather than the sufficiency of the findings, a fair reading of the change in language is that it actually narrows the rehearing requirements to situations where a court has made no findings at all. Still, with preservation at stake, until the contours of the new rule are expounded by appellate court decisions, it is best practice to bring any issues with the sufficiency of findings in a ruling to the trial court’s attention on reconsideration or rehearing. And because those motions need to be brought quickly, we recommend contacting appellate counsel as soon as you know you have an order you may want to appeal. To contact us, just call 813-778-5161 or use this form to request a consultation.

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Weird, Wild Stuff: Nine Proposed Appellate Rule Changes You May Want to Weigh In On

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The Appellate Court Rules Committee published its Notice of its proposed rule amendments in this month’s The Florida Bar News.  They are proposing a number of changes to no less than 32 different appellate rules.  You can read all of them here.

Here’s what we think about some of these proposals…

We had gut reactions to a few of these, and thought we’d share some of the more interesting ones with you.

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If you have any comments on these proposed rule amendments, get them in before August 1, 2019!

  • Amending rule 9.045 to require all appellate documents to be filed in “Arial 14-point or Bookman Old Style 14-point font.”
    • Bookman?  Where did Bookman come from?  Our stuck-in-our-ways reaction is “what’s wrong with Times New Roman?”  Well, a quick Google search shows that many consider Bookman a superior font.  But those same searches name a number of fonts that are an improvement upon Times New Roman (like Garamond, this author’s personal fave outside of the courts).  And also, other studies suggest there’s a difference in readability between serif and non-serif fonts.  So why keep both a serif and a non-serif font rather than just mandate the use of the single best font?
    • We’re curious to see what the ACRC was looking at when they settled on Bookman–and that will be a super-nerdy conversation that we won’t bore you with here, but feel free to give us a call if you’re curious!
  • Amending rule 9.145 to eliminate the requirement that transcripts in juvenile delinquency cases use only a child’s initials, to avoid confusion.
    • Will transcripts in the record be filed under seal, or redacted in some way, to maintain protection for the child?  Is there a corresponding amendment to Florida Rule of Judicial Administration 2.420 (minimizing the filing of sensitive information) to ensure this privacy?
  • Amending rule 9.170 to clarify that orders denying entitlement to attorneys’ fees and costs are appealable in probate and guardianship cases.
    • Before, the rule suggested only orders awarding fees were appealable.  This is obviously an important clarification if you practice these types of appeals.
  • Amending rule 9.225 to allow argument in a notice of supplemental authority.
    • Whoa.  We see this being used as a tool for parties to effectively file supplemental briefs.  We can also see this being abused for that purpose unless the rule is also amended to limit what can be filed as supplemental authority.  Many judges have personally indicated they do not like notices of supplemental authority that identify old cases, but the rule does not say that explicitly.  A party could potentially go find any relevant case and use it to rectify errors or omissions in its briefs.  Perhaps the new amendment should be accompanied by an amendment limiting notices of supplemental authority to authorities that are created after the date of the last brief of the party that files it.
  • Amending rule 9.300 to do away with the required separate request to toll time in the Florida Supreme Court.
    • Good riddance.  This requirement had no useful purpose.  It only served to increase attorney labor (and thus client costs), reduce judicial economy, and serve as a procedural trap for the unwary.
  • Creates Rule 9.332, providing a procedure for en banc proceedings in circuit court.
    • I’ve not ever had a matter that required such proceedings, but this amendment having been brought to our attention, it seems a really good idea.  We cannot see how the current rule 9.331 could ever be properly applied in a circuit court.  Our thoughts are with the unfortunate souls that have had to figure out how to use rule 9.331 in the circuit court to-date.
  • Amending rule 9.370 to create word limitations (instead of page limitations) on briefs.
    • This follows the federal practice.  We will take word limits over page limits in a heartbeat.
  • Amending rule 9.440 to create limited appearances for appellate proceedings.
    • This may be in response to the Fifth District’s Administrative Order AO5D15-01, Re: Continuances of Oral Argument.  Therein, the Fifth District effectively states that every attorney that appears on a brief, and every attorney in the firm of an attorney that appears on a brief, can be held responsible to appear for oral argument.  If you haven’t read that order and you ever appear on cases in the Fifth District, well, just go read the order.
  • Amending Rule 9.800 to further permit citation to online resources and to eliminate required citation to Florida Law Weekly.
    • Honestly, most Florida appellate courts have been more than forgiving about missing FLW citations for many years now–a logical shift and perhaps tacit recognition that there’s no longer a reason for an FLW cite.  Judicial opinions can be accessed online from any number of free sources, and FLW is (a) a cost-based service (b) not available to everyone, and (c) not the most elegant of interfaces to use (online or in print).  This is a worthwhile amendment that reflects the changing times.

More amendments?  YES!

These proposed amendments follow the extensive amendments that went into effect on January 1, 2019, which we’ve covered extensively.  See, e.g., Almost Every Florida Appellate Rule Changes on New Years’ Day 2019; Now You Can Appeal Two More Types of Nonfinal Orders.  If you haven’t checked those amendments out, make sure you do!

What do you think?  Let us know, and let the ACRC know!

So what do you think of these proposed amendments?  Agree/Disagree?  Are there any others you would want us to address?  Let us know.  And even more importantly, send any comments to Thomas D. Hall, Incoming Chair of the Appellate Court Rules Committee, at thall@bishopmills.com, and to Bar attorney liaison, Hether Telfer, at htelfer@floridabar.org.