Monday, November 2, 2015


By: Alexander L. Brockmeyer, Esquire

Boyle, Gentile & Leonard, P.A.


            Preservation of error is a concept litigators know all too well. Generally, to raise an error on appeal a litigant must object at trial when the alleged error occurs. F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003) (citing J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)). “The contemporaneous objection requirement originated in the English legal system as a mechanism for preserving error for appellate review, and the requirement was carried forward and generally adopted in America. Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1016 (Fla. 2000) (citations omitted). The Florida Supreme Court explained the rationale of the objection requirement as being:

“…based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him [or her] an opportunity to correct it at an early stage of the proceedings. Delay and an unnecessary use of the appellate process result from a failure to cure early that which must be cured eventually.” Id. (quoting Castor v. State, 365 So. 2d 701, 703 (Fla. 1978)).


            However, how does a litigant preserve an alleged error of defect that appears for the first time in a judgment? File a motion for rehearing. Generally, a litigant need not file a motion for rehearing if he or she is “displeased with a trial court’s decision on a matter because it found the opposing argument more persuasive….” Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 324 (Fla. 1st DCA 2011). However, Florida’s appellate courts require a litigant to file a motion for rehearing in order to preserve an error appearing for the first time in the judgment itself, an error that occurred at trial, or a judgment entered after a jury trial. Id.; New Hampshire Indem Co. v. Gray, 2015 WL 5845240, *2 (Fla. 1st DCA 2015); Lake Sarasota, Inc. v. Pan. Am. Sur. Co., 140 So. 2d 139, 142 (Fla. 2d DCA 1962).

Therefore, the next time you receive a final judgment ask yourself, should I file for rehearing? If the final judgment contains something you are seeing for the first time, the answer is most likely yes. Failure to do so may result in the appellate court refusing to consider an otherwise meritorious argument based on preservation issues.

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