iSSue-arguMentdiStinctioninthefederalandfloridacourtS
Appellate Practice Section Chairs : DavidCostello – FLOfficeoftheAttorneyGeneral & DimitriPeteves – Creed & Gowdy , P . A .
Say your client is sued for breach of contract . At trial , you dispute only whether there was a contract , nothing else . You lose before the trial court . On appeal , you realize there was another ( actually winning ) issue : there was never a breach , even if a contract existed . Can you raise that ground on appeal ? That all-too-common question implicates the murky world of issues versus arguments .
In the federal system , courts focus on the issues the parties raised below , not specific arguments . “ When an issue or claim is properly before the court , the court is not limited to the particular legal theories advanced by the parties . . . . ” U . S . Nat ’ l Bank of Or . v . Indep . Ins . Agents of Am ., 508 U . S . 439 , 446 ( 1993 ). Those courts justify this distinction by pointing to their constitutional duty to “ say what the law is .” Marbury v . Madison , 5 U . S . ( 1 Cranch ) 137 , 177 ( 1803 ). Their role is “ to get it right ,” and not simply to adopt the better argument “ lock , stock , and barrel .” United States v . Undetermined Quantities of All Articles of Finished and In- Process Foods , 936 F . 3d 1341 , 1350 ( 11th Cir . 2019 ). But while federal courts will strive to apply the correct
version of law through a thicket of arguments , it will generally not raise new issues . So , if a defendant argues that a plaintiff ’ s claim is time barred under a statute of limitations , but fails to cite the correct limitations period , the court can apply the correct statute of limitations ; not so if the defendant fails to raise a limitations issue at all . See MSPA Claims 1 , LLC v . Tower Hill Prime Ins ., 43 F . 4th 1259 , 1264 n . 1 ( 11th Cir . 2022 ).
In Florida , the waters are muddied . While the courts do not expressly adopt the issue-argument distinction , they have not rejected it . Yet some language suggests that Florida courts do not recognize this distinction . The District Courts of Appeal often say that litigants must preserve a claim by making “ the specific legal argument or ground to be argued ” below . I . R . v . State , 2024 WL 2789316 ( Fla . 6th DCA May 31 , 2024 ). But Florida courts seemingly conflate issues and arguments , sometimes starting a paragraph by talking about an “ argument not made or developed
Practitionersshould beawareoftheissueargumentdistinction . whiletrialcounselin floridacourtshould endeavortopreserve theargumentsexpected tobemadeonappeal , appellatecounselcan alwaysraisetheissueargumentdistinction .
below ” and ending up calling the same thing an “ issue ” by the end of the paragraph . See , e . g ., Powell v . State , 120 So . 3d 577 , 591 ( 1st DCA 2013 ). This type of analysis resembles the federal courts ’ loose use of the term “ jurisdiction ,” which was later corrected . See Wilkins v . United States , 598 U . S . 152 , 159 ( 2023 ). Thus , the issue-argument distinction remains an open question for Florida courts .
Practitioners should be aware of the issue-argument distinction . While trial counsel in Florida court should endeavor to preserve the arguments expected to be made on appeal , appellate counsel can always raise the issue-argument distinction . They can state that the refined argument in their briefs is encompassed within the issues raised below . n
Author : Robert Schenck - Florida Office of the Attorney General
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