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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.

Rule Change: Rehearing Required to Preserve Challenge to Sufficiency of Trial Court Findings

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Seal of the Florida Supreme CourtThe Florida Supreme Court Friday amended Florida Rule of Civil Procedure 1.530 and Florida Family Law Rules of Civil Procedure 12.530 to expressly require that “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule,” effective immediately upon the issuance of the order on August 25, 2022. See In Re: Amendments to Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530 (Aug. 25, 2022) [official court link]. [Author’s note: There have since been further amendments — check out our follow-up here]. While this is a change to the civil rules, it has a direct and real effect on whether a successful appeal is possible, so it is important for anyone who is considering an appeal to think carefully and act quickly to ensure this appellate issue is preserved by filing a motion for rehearing pursuant to Rule 1.530 or 12.530 within 15 days of rendition of a final judgment. And this means that if you have any interest in appeal, it is urgent that you speak with an appellate lawyer well before that 15 day deadline to ensure that you don’t inadvertently waive the issue on appeal.

The Supreme Court was no doubt intending to resolve a split among the District Courts of Appeal regarding whether a motion for rehearing is required in such circumstances. In 2019, the Second District Court of Appeal in Engle v. Engle, 277 So.3d 697 (Fla. 2d DCA 2019) [official court link] held that such a motion for rehearing was not required to preserve an appellate challenge to the adequacy of statutorily required findings of fact, and thus the failure to comply with a statute’s requirement of factual findings “is reversible error regardless of whether a motion for rehearing is filed.” Id. at 699, citing Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018) (en banc) [official court link]. In Engle, which was a family law case and thus applied Rule 12.530, the court stated that while it would be preferable to allow the trial court the option to fix its mistake prior to appeal, “if a litigant fails to do so for whatever reason, he or she should not be foreclosed from having the error corrected.” The Second District explained that, especially in family law proceedings, “to impose such a procedural constraint on a family law litigant elevates judicial convenience over equity.” Id. at 703. The court described the rehearing motion requirement as a “judicially created…trap” for family law litigants, partiuclarly those acting pro se, and instead placed the burden squarely on trial courts to follow the law in the first instance or be subjected to reversal.

Indeed, both the Second in Engle and the Fourth District in Fox urged the Famly Law Rules Committee to review and address this issue to make this clearer.

The Florida Supreme Court’s amendment is made “on its own motion” and does not come directly from a Family Law Rules Committee proposal. The Court will be accepting comments on the rule through November 8, 2022. So be on the lookout for a potential further change to the process. But for now, make sure you are on top of these important preservation issues.

Here’s the Full Text of the Changes, with additions indicated by underlining:
RULE 1.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS
(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues.
To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.

On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.
(b) – (g) [NO CHANGE]
Committee Notes
[NO CHANGE]
Court Commentary
1984 Amendment. [NO CHANGE]
2022 Amendments.
The amendment to subdivision (a) does not address or affect, by negative implication, any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review

FLORIDA FAMILY LAW RULES OF PROCEDURE
RULE 12.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS
(a) Jury and Non-Jury Actions. A new trial or rehearing may be granted to all or any of the parties and on all or a part of the issues.
To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.

On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.
(b) – (h) [NO CHANGE]

Court Commentary
2022 Amendments. The amendment to subdivision (a) does not address or affect, by negative implication, any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review.

Please note: There have been further amendments since we posted this. Be sure to check out our latest post on the amendments to Rule 1.530 and 12.530 here.

Dead End by Dineen Pashoukos Wasylik All Rights Reserved

Is it Appealable? July 2018 edition

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A street sign that displaying "dead end"

Is it appealable, or a dead end? Several district court decisions from this month answer that question in different ways.

Appealable or not?  The courts decide…

The immediate reaction to an adverse ruling is often “I want to appeal that!” But not all orders are immediately appealable, as several cases this month have shown. And sometimes, an order is immediately appealable even if the case continues for other reasons, and you can waive your rights to appeal if you don’t act immediately. The district courts of appeal have issued a number of decisions this month regarding appellate jurisdiction to review a trial court’s order, which usually comes down to the question “Is this a final order?” Below we’ve summarized just a few of the cases discussing finality and appealability the courts issued in July, grouping them by type of order. As always, if you have any questions regarding the finality or appealability of an order, contact us and we’d be glad to talk about your situation with you!

Orders on fees.

FCCI Commercial Insurance Co. v. Empire Indemnity Insurance Co., 2D17-1749 (Fla. 2d DCA July 13, 2018)[.pdf]

FCCI intervened in a pending case against its insureds after the trial court disqualified the attorney FCCI had retained on its insureds’ behalf and awarded attorneys’ fees to Empire based on that attorney’s misconduct. When FCCI appeared, the trial court imposed the award of those fees upon FCCI based on its finding that FCCI had directed the disqualified attorneys’ actions.  FCCI appealed that order.

On appeal, Empire argued the appellate court did not have jurisdiction over the appeal, presumably because there were proceedings still pending in the trial court.  The court disagreed, holding “Not only is the order awarding Empire attorney’s fees an executable judgment against FCCI concluding a portion of the litigation ancillary to Empire’s ongoing litigation against [FCCI’s insureds and other defendants], . . . but FCCI’s limited intervention solely for the purpose of addressing fees demonstrates that the conclusion of the attorney fees proceeding ended judicial labor as to FCCI,” citing Florida Rule of Appellate Procedure 9.110(k)(review of partial final judgments) and a number of cases.

Yampol v. Turnberry Isle South Condominium Association, Inc., 3D17-2752 (Fla. 3d DCA July 5, 2018)[.pdf]

After dismissing a case in the trial court, both parties (Yampol and Turnberry) moved for attorney’s fees.  The trial court entered an order that denied Turnberry’s fees and granted Yampol entitlement to fees.  Upon a motion for reconsideration, the trial court changed its mind, granting Turnberry entitlement to fees and denying Yampol’s motion.  Yampol appealed.

Turnberry moved to dismiss the appeal, arguing that the order was not yet final because it found only entitlement, and not amount, as to its award of fees.  The appellate court determined “[t]he issue before us in this appeal is whether an order that grants one party’s entitlement to fees and denies the other party’s entitlement to fees ins an appealable final order.”

Ultimately, the court ruled the order was appealable because an “order denying a party’s claim for entitlement to attorney’s fees . . . is an appealable final order,” even if an order granting attorney’s fees as to entitlement but not to amount is not appealable.  The trial court ended all litigation as to Yampol’s fees in its second order so the order was final and appealable as to Yampol. This is a great example of how the same order can be final and appealable for one party but not another.

Orders to show cause.

Torres v. Lefler, 2D17-2741 (Fla. 2d DCA July 13, 2018)[.pdf]

The trial court ordered Mr. Torres to show cause within ten days why he should not be sanctioned for repeatedly filing frivolous lawsuits, failing which, sanctions would be imposed.  Mr. Torres filed a notice of appeal before the ten days was up.  The appellate court dismissed the appeal from that order, holding that the trial court merely reserved jurisdiction to impose sanctions and thus the order was not final or appealable.

Amended temporary orders while an appeal is pending.

Duryea v. Bono, 2D17-4314, 2D17-4422 (consolidated) (Fla. 2d DCA July 13, 2018)[.pdf]

In this family law appeal, the trial court rendered a Temporary Order for Timesharing on October 27, 2017.  Duryea filed a notice of appeal.  Then the trial court rendered an Amendment to the Temporary Order for Timesharing on November 2, 2017, substantively modifying the October 27, 2017, order.  Duryea filed another notice of appeal.

The appellate court affirmed the October 27, 2017, order.  However, it held that the November 2, 2017, order was a nullity because it was entered while the appeal from the prior order was pending and was substantive in nature.  Consequently, the court remanded with directions to vacate the November 2, 2017 order.

Orders granting partial summary judgment incorporating injunctive relief.

Woodfield Community Association, Inc. v. Ortiz, 2D18-341 (Fla. 2d DCA July 13, 2018)[.pdf]

The Ortizes sued their homeowner’s association.  In count 1, they sought a declaration that parking restrictions were void and unenforceable.  They moved for partial summary judgment, which the trial court granted.  The court declared prior fines void and enjoined the homeowner’s association from imposing further fines.  The association appealed.

The appellate court recognized that “Generally, orders that merely grant partial summary judgment, such as the one before us, are considered nonfinal, nonappealable orders.”  “However, Florida Rule of Appellate Procedure 9.130(a)(3)(B) provides us jurisdiction to review the portion of the order enjoining the association from enforcing the recorded declaration.”  The appellate court dismissed all other portions of the association’s appeal that did “not pertain to injunctive relief,” without prejudice to raising those issues in a later final appeal.

Timeliness of Notice of Appeal.

Elmouki v. Department of Transportation, 1D18-0715 (Fla. 1st DCA July 9, 2018)[.pdf]

The Commercial Motor Vehicle Review Board issued a letter rejecting Elmouki’s challenge to a citation he received while operating a commercial motor vehicle.  The letter was dated January 18, 2018, but included a timestamp showing it was filed with the clerk of the Department of Transportation on January 17, 2018.  Elmouki filed his notice of appeal on Monday, February 19.

The appellate court held that the 30-day time period for Elmouki to file his notice of appeal ran from the date the letter was rendered, which was the date it was filed with the Department.  Consequently, the time for Elmouki to file his notice of appeal expired on Friday, February 16, and Elmouki’s February 19 notice was untimely.

The appellate court dismissed the appeal without prejudice to Elmouki petitioning the Review Board to vacate and reissue the letter so that he could appeal.

In rem vs. personal jurisdiction.

Patel v. Wilmington Savings Bank, FSB, 5D17-1900 (Fla. 5th DCA July 6, 2018)[.pdf]

The trial court denied the Patels’ motion to quash constructive service of process, ruling that it had in rem jurisdiction.  The Patels appealed, presumably pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), which authorizes an appeal from a non-final order that determines the jurisdiction of the person.

However, the trial court did not determine the jurisdiction of the person, it only ruled on jurisdiction in rem, or over the property at issue.  Consequently, the appellate court held that rule 9.130(a)(3)(C)(i) did not provide a non-final appeal from the trial court’s order and thus dismissed the appeal.

Mootness.

Mitchell v. Brogden, 1D16-5849 (Fla. 1st DCA July 16, 2018)[.pdf]

Mitchell appealed a stalking injunction that expired by its own terms while the appeal was pending.  “Nonetheless, [the court held,] we cannot dismiss the appeal as moot because ‘collateral legal consequences flowing from such an injunction outlast the injunction itself.'” (citation omitted).

Preservation by motion for rehearing.

Mahoney v. Mahoney, 1D17-2071 (Fla. 1st DCA July 9, 2018)[.pdf]

Former Husband waived arguments for appeal regarding lack of written findings on trial support and some arguments regarding the cut-off date for the identification of a retirement plan as a marital asset by failing to include those arguments in a trial court motion for rehearing.

Looking for more?

Check out our past blog posts on rendition, timing of your notice of appeal, and post-judgment tolling motions, and check out our Florida Bar Journal article on how trial court motions for rehearing affect preservation on appeal.  Or scroll through the blog for more!