to reHeAr or not to reHeAr? preserving error for AppeAL
Appellate Practice Section
Chairs:JoeEagleton–Brannock&HumphriesandChanceLyman–BuchananIngersoll&Rooney
what if the error that has
appeared for the first
time in the judgment is
the trial court’s failure to
A
cardinal rule of
appellate practice is that
errors must be brought
to the trial court’s
attention by contemporaneous
objection. 1 But what happens when
an error appears for the first time
in the judgment? Some courts have
held that a litigant must “object”
by filing a motion for rehearing,
which satisfies the contemporaneous
objection policy rationale of giving
the trial court an opportunity to
correct the error before presenting
that error to the appellate court as
a basis for reversal. 2
This leads to another question,
though: What if the error that has
appeared for the first time in the
judgment is the trial court’s failure
to make statutorily required factual
findings? Such errors are generally
per se reversible, 3 so a litigant
might assume that no motion for
rehearing is required. But the
answer actually depends on where
the litigant lives. 4
In a line of cases dating back
two decades, Florida’s First, Third,
and Fifth District Courts of Appeal
have held that a motion for
rehearing is required to preserve
the trial court’s failure to make
statutorily required factual findings
for appellate review. 5 Last year, the
Fourth District, sitting en banc, split
make statutorily required
factual findings?
from its sister districts, holding in
a family law case that the failure to
make factual findings is reversible
error “regardless of whether a
motion for rehearing is filed.” 6
Until July, the Second District’s
position on this issue was unclear.
But in a July 3 opinion authored by
Judge Sleet, the Second District
finally weighed in, agreeing with
the Fourth District — and
certifying conflict with the First,
Third, and Fifth Districts — that
“the trial court’s failure to make
specific factual findings that are
required by statute” is “reversible
error regardless of whether the
error was first raised in the trial
court by means of a motion for
rehearing.” 7
The Second District reasoned
that the legislature “expressly
assigned the task of making factual
findings to the trial court” and “did
not include a provision requiring a
motion for rehearing to preserve a
challenge to a lack of statutory
findings.” 8 Thus, because “[s]uch a
preservation requirement is not
supported by statute or rule of
procedure,” the Second District
declined to impose it. 9 Stay tuned
to see if the Florida Supreme Court
decides to settle this dispute. n
1
See, e.g., City of Orlando v.
Birmingham, 539 So. 2d 1133, 1134-35
(Fla. 1989).
2 See N.H. Indem. Co. v. Gray, 177
So. 3d 56, 59 (Fla. 1st DCA 2015).
3 See, e.g., Velez v. Montalvo-Velez,
253 So. 3d 117, 118 (Fla. 2d DCA
2018); Jordan v. Jordan, 199 So. 3d 343,
345 (Fla. 4th DCA 2016).
4 For a comprehensive overview of
this subject, see Dan Bushell’s excellent
article in a recent issue of the Florida
Bar Journal. Daniel A. Bushell, When is
a Motion for Rehearing Necessary to
Preserve for Review a Trial Court’s Error
in Failing to Make Factual 93(3) Fla. B.J.
46 (May/June 2019).
5 See Owens v. Owens, 973 So. 2d
1169, 1170 (Fla. 1st DCA 2007);
Mathieu v. Mathieu, 877 So. 2d 740,
741 (Fla. 5th DCA 2004); Broadfoot v.
Broadfoot, 791 So. 2d 584, 585 (Fla. 3d
DCA 2001).
6 Fox v. Fox, 262 So. 3d 789, 791
(Fla. 4th DCA 2018).
7 Engle v. Engle, No. 2D17-620, 2019
WL 2844186, at *6 (Fla. 2d DCA July
3, 2019).
8 Id. at *1, 5.
9 Id.
Author: Joe Eagleton – Brannock &
Humphries
Get Involved! sIGn up on Your MeMber profIle at hIllsbar.coM.
20
SEPT - OCT 2019
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HCBA LAWYER