HCBA Lawyer Magazine Vol. 30, No. 1 | Page 22

toreHeArornottoreHeAr?preservingerrorforAppeAL Appellate Practice Section Chairs:­Joe­Eagleton­–­Brannock­&­Humphries­and­Chance­Lyman­–­Buchanan­Ingersoll­&­Rooney whatiftheerrorthathas appearedforthefirst timeinthejudgmentis thetrialcourt’sfailureto 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 makestatutorilyrequired factualfindings? 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 | HCBA LAWYER