Continued from page 18
court did not further describe the standard it applied when it held, “Our
record does not allow us to conclude that the result would be the same even
without the error.” 7 In the second opinion, the court found error but held
it had to affirm because the absence of a transcript “frustrate[d] our ability
to … evaluate the entire case as required for a harmless error analysis.” 8
The dearth of Second DCA opinions addressing Special suggests the
new standard has had little impact to date. Statistics support this hypothesis,
with the reversal rate of civil appeals remaining relatively unchanged
despite Special being decided in November 2014: 9
Year
Total
2013
2014
2015
2016
2017 11
777
744
824
880
335
Affirmed
615
576 10
646
686
267
Reversed or
reversed in part
162
168
178
194
68
% of total
reversed
20.8%
22.6%
21.6%
22.0%
20.3%
All evidence to the contrary, I still believe that, in time, Special will turn out
to be tremendously significant in the Second DCA. Appellees should still
thoroughly consider whether they can meet their burden under Special
before they raise a harmless error argument on appeal. And appellants
should respond to a harmless error argument with Special’s burden-shifting
language. It is anyone’s guess as to what case will ultimately require the court
to fully scrutinize the Special harmless error standard in a written opinion.
In re Commitment of DeBolt, 19 So. 3d 335, 337 (Fla. 2d DCA 2009) (en banc)
(quoting Damico v. Lundberg, 379 So. 2d 964, 965 (Fla. 2d DCA 1979)).
2 Special v. West Boca Med. Ctr., 160 So. 3d 1251, 1265 (Fla. 2014).
3 See, e.g., Ezequiel Lugo, Harmless Erro r Redefined, Vol. 25, No. 4 HCBA
Lawyer, 22 (March-April 2015).
4 T.B. v. R.B., 186 So. 3d 544, 552 n.2 (Fla. 2d DCA 2015).
5 Ring Power Corp. v. Condado-Perez, 2017 WL 1289981, at *5 (Fla. 2d DCA
Apr. 7, 2017).
6 Philip Morris USA Inc. v. Boatright, 2017 WL 1356285, at *5 (Fla. 2d DCA
Apr. 12, 2017).
7 Winnier v. Winnier, 163 So. 3d 1279, 1280 (Fla. 2d DCA 2015).
8 Jericka v. Jericka, 198 So. 3d 661, 662-663 (Fla. 2d DCA 2015). This case
demonstrates the interesting relationship between the differing burdens of
appellants and appellees on appeal.
9 Thanks to Mary Beth Kuenzel, Clerk of the Second District Court of Appeal,
for providing this information. For this analysis, “civil appeals” are defined as all non-
criminal and non-juvenile appeals; original proceedings are excluded. The manner of
disposition includes written opinions, citation opinions, and per curiam affirmances;
appeals that were dismissed, transferred, or disposed of by order are excluded.
10 One case was “affirmed as modified.” It is included as an affirmance here.
11 Year-to-date as of May 15, 2017.
1
Author: Jared M. Krukar - DPW Legal
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