Appeals

Why bring a court reporter to an evidentiary hearing?
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Terms in this set (49)
Why bring a court reporter to an evidentiary hearing?
To memorialize for appeal--Appellant has burden to provide record to demonstrate error by trial court. Applegate (Fla 1979); Kanter (Fla 4th 2003).
Without a transcript, is it possible that a trial court decision in an evidentiary hearing will be reversed?
Possible, but chances are slim; the ruling will be reversed only if error is apparent on the face of the judgment. Ivanovich (Fla 2nd 2016).
W was granted temporary injunction against H. Parties reached settlement on visitation during pending dissolution, w dismissal of injunction as part of settlement. Stalking incident occurred. W filed motion for injunction. Court denied, saying injunction had been resolved as part of settlement. Does this constitute error the face of the judgment even without a transcript of injunction hearing?
Yes. Lack of transcript was not fault of appellant. The appellant was not offered a chance to offer testimony because injunction was denied without evidence being heard about the stalking incident that occurred after the settlement. This is denial of due process and a reversible error. Parrish (Fla 3rd 1980).
H filed motion. Hearing was held. H lost and wants to appeal. Court reporter, however, lost stenographic notes. Parties failed to agree to a stipulated statement of the proceedings. What happens next?
Final judgment being appealed is vacated and cause remanded for new hearing on the merits. Vernell (Fla 5th 1980). Same outcome if court reporter died and transcript unavailable. Jackson (Fla 3rd 2016).
Fla. R. of Appellate Procedure R.9.200(b)(4) allows parties to prepare a Statement of the Evidence and provide it to the trial court for approval for the appellate court's use in an appeal where a court reporter was not present. Why is this rule of little practical use?
--getting agreed-upon statement is unlikely bc no incentive on prevailing party unlikely to agree- Rivera (Fla 4th 2004).
--trial court cannot be expected to remember what occurred at trial well enough to approve statement-id.
--trial judge unlikely to approve a unilateral statement by non-prevailing party, much less able to add details. Kriebel (Fla 4th 2017).
--appellate court likely to just affirm order under review if statement not sufficiently detailed. Bei (Fla 2nd 1985).
H tried to offer evidence of the value of a townhouse at trial through testimony of realtor. W objected bc realtor was not expert. Only testimony was from husband, who simply submitted a value in financial affidavit. W's affidavit valued townhouse at substantially lower value. Trial court assigned H's value in final judgment. Was competent, substantial evidence, as required, submitted to support this valuation?
Competent, substantial evidence is required. An owner of property is generally qualified to testify about the value of his own property. Beaty (Fla 2nd 1995). But the record in this case does not contain competent, substantial evidence adequate to choose H's valuation over W's, so finding on value is reversed and evidentiary hearing on remand ordered.
If a non-owner spouse of real property testifies at trial as to the value of the property, and the court accepts that valuation as competent, substantial evidence as to value, is this reversible error on appeal?
Non-owner spouses of real property are not qualified to testify as to value. Noone (Fla. 5th 1988).
W offers an unsworn statement as evidence. The trial court relies on this statement in making a factual determination. Can this be successfully challenged on appeal?
Yes. Trial judges may not rely upon unsworn statements as the basis for making factual determinations, and the appellate court cannot consider them upon review of the record. Leon Shaffer Golnick Advertising (Fla 4th 1982).
W appeals an order by the trial court, contending that the court miscalculated the amount she should receive when an account was divided. The only evidence presented to the trial court concerning the account were unsworn pleadings and attachments at a non-evidentiary hearing on discovery issues and the arguments of H's counsel. Was there competent, substantial evidence for theatrical court's decision?
Argument of counsel and unsworn pleadings from another case are not evidence sufficient for factual findings. Ramunno v. Terranova (Fla 4th 2007). Unsworn statements of attorneys at non-evidentiary hearings on discovery issues are not sufficient evidence for order. Brown v. School Bd of PBC (Fla 4th 2003).
What are common errors in introducing exhibits and depositions into evidence (in relation to creating an adequate record for a possible appeal)?
--failing to introduce documents and get them admitted into evidence at trial. Matson (Fla. 1st 1989).
--failing to identify and mark each exhibit and refer to it by letter/number in eliciting testimony so as to be entirely clear as to what is being discussed.
--failing to introduce and get admitted financial affidavits at trial. Reading from an affidavit is insufficient and does not constitute evidence. Jones (Fla. 5th 1996).
FH appeals an order denying his motion for contempt and for immediate change of primary residence the ground that the motion failed to comply with Fla. Family Law R. of Proc. 12.110. This rule requires an initial pleading subsequent the final judgment designated a supplemental complaint or petition. Earlier, the FW had agreed to try the custody matter before a general magistrate, who found on the merits for FH. FW only raised the procedural deficiency in exceptions filed after the adverse magistrate's decision. Did FW waive her right to insist on compliance with Rule 12.110 by FH?FW waived her right to file exceptions because she did not challenge the form of the motion before the magistrate. The concerns that animate 12.110--ensuring there is adequate notice that an important issue will be considered--were not at issue here because the motion at issue was really more of a continuation of the earlier petition so the FW had adequate notice.May the appellate court consider documents that have not been introduced and admitted into evidence at trial?No. Matson v. Wilco Office Supply (1st DCA 1989).At trial, Appellee's counsel did not introduce the financial affidavits filed by the parties into evidence. The record of the hearing on temporary attorney's fees contains argument of counsel, an unsworn verbal statement by appellant, and an exchange of views between the court and counsel. After discussing the case with counsel, the court stated: Let's give them a couple of thousand dollars to get the fight back in the ballpark here, then we can go at it. Is there sufficient evidence to uphold the court's decision?No, that is not competent evidence. Appellee's failure to make any evidentiary showing in support of her petition for temporary attorney's fees requires us to reverse and remand this case for further proceedings. Ladoff v. Ladoff (4th DCA 1986).What does the trial court need to know in order for an objection to preserve an issue for review?The relief requested and the specific legal grounds for the objection. Hodges v. State (Fla. 2004); Pope v. Pope (Fla. 4th 2010). This gives the court notice that an error was committed and the opportunity to correct the error.Counsel says, "Objection -- form." Is this adequate to preserve an issue for review?No. One must identify what is wrong with the form--compound, lack of predicate, speculative, etc.Which of these is not a good tip for making an objection properly? a. do not have people point to things/people without describing what or who is being discussed b. Allow witnesses to refer to people as "him" or "her" without clarifying who it is for the record because interrupting to clarify might confuse the witness c. do not ask witnesses to demonstrate things without describing the demonstration for the recordb. is incorrect. always ask witnesses to clarify the person being referred to when pronouns are used so that the record is clear.If a legal issue is not presented to the trial court, are there any circumstances under which the appellate court will address an issue?Yes, but only if there is fundamental error. Freiha v. Freiha (1st 2016).The trial court, in the final judgment of dissolution of marriage, ordered that the former wife would have majority timesharing of the parties' minor child. The final judgment did not specify when the former husband would have a right to timesharing. Rather, the trial court ordered the former husband would "have timesharing at all reasonable times and places as the parties may agree. Thus far, there have been no 'issues or problems' with timesharing and the parties have structured periods that are consistent with the Husband's work obligations. This shall continue." The FH did not object or file a timely motion for rehearing for lack of a timesharing agreement. May the appellate court consider this issue?Yes, this is fundamental error. Section 61.13(2)(b), Florida Statutes (2012), explicitly requires the parenting plan approved by a trial court "must, at a minimum, describe in adequate detail ․ the time-sharing schedule arrangements that specify the time that the minor child will spend with each parent." Issues that are not preserved may still be reviewed for fundamental error. " 'Fundamental error, which can be considered on appeal without objection in the lower court, is error which goes to the foundation of the case or goes to the merits of the cause of action.' " Saka v. Saka (Fla. 3d DCA 2002).The trial court wrote an extensive order explaining his reasons for only allowing supervised visitation, and those reasons were supported by competent, substantial evidence. The former wife, however, did not alert the trial court that she wanted the court to address the steps she could take to reestablish unsupervised visitation, either by filing a motion for rehearing or through any other means. This court has consistently held that absent fundamental error, we will not address legal issues not presented to the trial court. Was this fundamental error?This case is distinguishable from Freiha. Freiha involved a total failure to address the focal issue of the litigation. In this case, the trial court spent extensive time reviewing the issue of visitation. The court also ruled based on its extensive experience with the former wife, which was outlined in the order. Thus, there does not appear to be a total failure to make a decision concerning a critical issue; rather, the issue is more of a disagreement with the way in which the trial court ruled on the visitation issue. As such, there was no fundamental error in this case.What is the purpose of a proffer?The purpose of a proffer is to include the proposed evidence in the record to enable the appellate court to determine whether the trial court's exclusion of the evidence was correct. Fehringer v. State (4th 2008).When may a proffer be made?The proffer should be made before the close of evidence. You may attempt to make the proffer post-trial.Is a trial court's refusal to permit a proffer of testimony reversible error?Yes, generally. Fehringer v. State (4th 2008).FH contests final order of dissolution, arguing that insufficient findings of fact were made on a decision to grant FW attorney's fees. FH filed an appeal. Is this correct?No. FH must file a motion for rehearing or other post-judgment motion that allows trial court to address possible error, the issue is not preserved for appeal. There is no GENERAL rule that the lack of statutorily required findings constitutes fundamental error. Esaw v. Esaw (2nd 2007).Is it possible, even if not generally required, for an appellate court to reverse a trial court decision and have it remanded to make required factual findings even if the appellant fails to file a transcript?Yes, 4th DCA seems to be more likely to reverse a trial court decision as error when required factual findings have not been made. This is not the general rule, but is possible. Badgley v. Sanchez (4th 2015).When is an order rendered, and why does it matter?An order is "rendered" when "a signed, written order is filed with the clerk of the lower tribunal." Fla. R. App. P. 9.020(h). It matters because most appellate deadlines run from the time of rendition in the lower court. But note that sometimes, an order is not rendered until a timely and authorized motion directed to that order has been disposed of.What are the consequences of filing a notice of appeal before a judgment is rendered?The appellate court may dismiss the appeal under Fla. R. App. P. 9.110(l).FW files a motion for rehearing in trial court after a final judgment has been rendered. FW then files a notice of appeal before the motion has been ruled on. What happens?Under Fla. R. App. 9.020(h)--well, here you need to tell me, Kate. The materials say the motion is deemed abandoned by the appellate court. The rules seem to say that the appeal is held in abeyance until the motion is ruled on. I don't get it. But the materials refer to a couple of different decisions, including Preudhomme v. Bailey (4th 2016).If a motion for rehearing is filed but is not timely, does that delay rendition of a final order?No.When is an order final for purposes of an appeal?When it "constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected."Court issues a final order of dissolution and determines that a party is entitled to an award of attorney's fees and costs, but reserves jurisdiction to determine costs and attorney's fees. Is the judgment final?No. Weimer v. Weimer (4th 1996). Contrast this with case in which the court reserved jurisdiction to determine fees/costs separately.Court issues a final order of dissolution without determining that a party is entitled to an award of attorney's fees and costs, and reserves jurisdiction to later determine costs and attorney's fees. Is the judgment final?Yes. The subsequent order awarding fees or costs is a separate, appealable order. Contrast this with case in which the court does make a determination that fees/costs are awarded but reserves only the issue of the amount for later determination.FW files a motion for rehearing of a non-final order that is normally appealable. The motion is not ruled on before the 30-day deadline for filing an appeal. FW did not file a notice of appeal until 38 days. Does the appeal survive, or will it be dismissed as untimely.The appeal will be dismissed as untimely by the appellate court.An order is issued that requires the disclosure of documents regarding psychological information. The order also requires psychological evaluations. This order is a non-final order not appealable under Fla. R. App. P. 9.130. Is there any procedure to seek review of such an order?Yes, a petition for a writ of certiorari may be filed. The petitioner must demonstrate that the challenged order constitutes a departure from the essential requirements of law resulting in material injury for the remainder of the case that cannot be corrected on appeal.What is an appeal?An appeal is a proceeding by right, whereby a party may compel the district court of appeal to review an order of the trial court.What are considered final orders in family law matters?Final judgments of dissolution, alimony, child support, custody, modification, attorney's fees (only if entitlement and amount or if denying fees altogether). A final order is an order that determines the rights of a party with finality or an order that disposes of an independent issue.What is the deadline and process for initiating an appeal?Within 30 days of rendition of the order being appealed, the appellant must serve a notice of appeal with the prescribed filing fee and a conformed copy of the order or orders designated in the notice. Fla. R. App. P. 9.110(b) and (d). The notice of appeal must be served in the lower court, not the appellate court.What tolls the rendition time?The filing of an authorized motion in a timely manner in the trial court. Authorized motions are governed by Fam. L. rules and must be served no later than 15 days of the entry of the judgment.Will unauthorized or untimely motions toll rendition?No.Can the rules setting a deadline and a place for commencing an appeal be waived?No, these are jurisdictional issues that cannot be waived for any reason.How does one file a cross appeal?The appellee may file a cross-appeal by serving a notice of cross-appeal within ten days of service of the appellant's timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later, accompanied by the appropriate filing fees.The time for filing a notice of appeal is jurisdictional and may not be waived. Is the time for filing notice of cross-appeal jurisdictional, too?No. The time for filing a notice of cross-appeal is not jurisdictional and may be extended at the discretion of the reviewing court.What is the schedule for filing briefs in an appeal?Initial brief -- served within 70 days of filing of notice of appeal Answer brief and initial brief on cross appeal -- w/in 20 days of service of initial brief. initial brief on cross appeal is served with that answer brief. Reply brief and answer to initial brief on cross appeal -- w/in 20 days of service of answer brief. Cross reply brief -- if applicable, the cross reply brief shall be served w/in 20 days of answer brief to cross appeal.What are the non-final orders that may be appealed?There are a lot so check the rule, but the ones specific to family law matters include (a) the right to immediate monetary relief, (b) the rights or obligations of a party regarding child custody or time-sharing under a parenting plan, and (c) that a marital agreement is invalid in its entirety.Is a stay automatic pending review of a final or non-final order by the appellate court?It is not automatic except in specific circumstances. A motion must be filed in trial court usually. The trial court has continuing jurisdiction to grant or modify or deny the motion. The factors are whether the moving party is likely to succeed on the merits and likelihood of harm if the stay is not granted.Father failed to return children to mother after summer vacation, required in parenting plan. Father tried to manipulate the children's custody preferences. Mother filed for a stay of an order modifying custody. Will she prevail?In Perez v. Perez, court granted a stay because the mother was likely to succeed on the merits and likelihood of harm was high. Stay maintained status quo during appellate proceedings.May a party file a motion to review the denial of a stay?Yes. The appellate court review the trial court's decision under the abuse of discretion standard.When is a stay automatic?If the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, without filing a motion, by posting a bond equal to the principal amount of the judgment plus twice the statutory rate of interest.The purpose of conditioning a stay pending review on posting a bond is to ensure the payment to the judgment creditor of the full amount of the order on appeal, including interest, in the event the appeal is unsuccessful.Appellant filed notice of appeal and then initial brief. In the brief, the appellant concludes by requesting oral argument. Alternately, appellant and appellee file all briefs. Fourteen days after the last brief was due to be served, appellant makes a written request for oral argument. In which case, if either, is the request for oral argument sufficient?Neither case. The request must be made in a separate document served on the appellate court and must be made within ten days after the last brief is due to be served.What is deadline for filing a motion for clarification, certification, issuance of a written opinion, or rehearing?Within 15 days of an order or within such other time set by the court.