This article explains fundamental error as applied in Florida appeals. To preserve an error for review appeal, a party must make a specific contemporaneous objection. Failing to do so can have disastrous consequences. Before delving into an explanation of fundamental error, an overview about preserving issues for appeal is in order.
Preserving Errors for Appeal and the Ability to Appeal Unpreserved Errors
In Florida, to preserve an error for review and possible correction on appeal, a party must make a specific and contemporaneous objection to the perceived error. See Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (“[I]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.”). A specific contemporaneous objection means that the objection must be made immediately after, or very shortly after, the error occurs and it must specifically address the perceived error.
The purpose for this principle is that many appeals can be avoided by requiring parties to give the trial court an opportunity to correct the error. When a trial court does something wrong, it is usually due to simple oversight, not to screw over the other party. It is very possible that if immediately brought to the trial judge’s attention, the error can be easily corrected. If the error is corrected, than a potential appeal has been avoided.
Therefore, requiring a specific and contemporaneous objection prevents unnecessary appeals, which could have been avoided had the party given the trial court the opportunity to correct the error. See F.B. v. State, 852 So. 2d 226, 229 (Fla. 2003). It also prevents a party from strategically allowing errors to go unchallenged by objection and then later trying to use that error to a client’s tactical advantage. Id.
Consequently, a party that fails to preserve an error for appeal, by making a specific contemporaneous objection, will be prevented from raising the error as a basis for appeal. In other words, the appellate court will not even consider the issue if it was not “preserved for appeal.” However, there is an exception. Under Florida law, the sole exception is if the error, which was not objected to, is deemed “fundamental error.” See F.B., 852 So. 2d at 229.
Fundamental Error in Florida Appeals
The Florida Supreme Court has stated that “in order to be of such fundamental nature as to justify a reversal in the absence of timely objection, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” F.B., 852 So. 2d at 229 (quoting Brown v. State, 124 So. 2d 481, 484 (Fla. 1960) (holding that alleged error “did not permeate or saturate the trial with such basic invalidity as to lead to a reversal regardless of a timely objection”)).
Under this analysis, an error is deemed fundamental “when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” F.B., 852 So. 2d at 229 (quoting J.B. v. State, 705 So. 2d 1376, 1378 (Fla. 1998)). In addition, the Florida Supreme Court has stated that “[t]he doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Id. (quoting Smith v. State, 521 So. 2d 106, 108 (Fla. 1988)).
In general, under Florida law the fundamental error doctrine is the same in both criminal and civil cases. However, it seems to be much harder in civil cases to convince a court that an error, which was not objected to, is fundamental and reversible error. Understandably, courts are more inclined to find fundamental error in criminal cases—where an individual’s liberty is at stake—than they are in civil cases.
For example, an improper jury instruction in a criminal case may be fundamental error. See Reed v. State, 837 So. 2d 366, 368–69 (Fla. 2002) (concluding that failure to use correct definition of malice in jury instruction was fundamental error when malice was a disputed issue at trial).
However, in the absence of a contemporaneous objection, the same error in a civil case may not be fundamental error. See Feliciano v. School Bd. of Palm Beach Cnty., 776 So. 2d 306, 308 (Fla. 4th DCA 2000) (citing Rule 1.470(b) to hold that the failure to object to an incorrect jury instruction at the charge conference does not rise to the level of fundamental error).
To be Fundamental the Error must be “Harmful”
To be fundamental, the error must also be harmful. However, not all errors committed by a trial court are harmful. “By its very nature, fundamental error has to be considered harmful.” Reed, 837 So. 2d at 369–70. “If the error was not harmful, it would not meet our requirement for being fundamental.” Id. In other words, if the error is not harmful, it cannot meet the requirement of being fundamental and, therefore, it cannot be corrected if it was not preserved for appeal by a contemporaneous objection.
For example, when a jury instruction contained an error that was not material to what the jury must consider to convict the defendant of the crime charged, the error was not deemed to be fundamental. See Reed, 837 So. 2d at 369–70. For an error to meet this narrow standard of fundamentality, it must be error that prejudiced the defendant. Id. Thus, if a party fails to object, whether the error will be deemed fundamental will depend on the overall nature of error and its ultimate impact on the outcome of the case or the prejudice to the party.
Types of Error that will be Deemed Fundamental Error
Probably the best examples of claims that can be raised on appeal, despite the failure to make a contemporaneous objection, are jurisdictional issues. See Fundamental Error, 2 Fla. Prac., Appellate Practice § 27:3 (2017 ed.). The jurisdiction of the trial court is a fundamental matter that is permitted to be raised for the first time on appeal even if both parties fail to raise the issue in the trial court. Id. For example, if a trial court acts in excess of its jurisdiction, the resulting error is one that necessarily affects the foundation of the case. Id.
Errors related to subject-matter jurisdiction may also be recognized as fundamental error. See 84 Lumber Co. v. Cooper, 656 So. 2d 1297 (Fla. 2d DCA 1994). Similarly, errors in due process, such as the entry of a judgment without proper notice, may be considered by the courts to be fundamental error. See Florio v. State ex. rel., Epperson, 119 So. 2d 305 (Fla. 2d DCA 1960).
Whether the fundamental error exception will be applied to a constitutional issue is not always clear. See 2 Fla. Prac., Appellate Practice § 27:3. An error may be constitutional but still might not rise to the level of fundamental error requiring a reversal in the absence of a timely objection. Id. For example, the Florida Supreme Court has held that an improper comment on the failure of an accused to testify in a criminal case is a constitutional error, but it is not fundamental error, so if the defendant did not object the error will not serve as grounds for a reversal. See State v. DiGuilio, 491 So. 2d 1129 (Fla. 1986).
However, other constitutional issues are regularly classified as fundamental error. See 2 Fla. Prac., Appellate Practice § 27:3. For example, a double-jeopardy defense may serve as a basis for the reversal of a criminal conviction notwithstanding the defendant’s failure to file a motion to dismiss in the trial court. Id. Similarly, a violation of due process of law or a conviction for a nonexistent offense will not be affirmed merely because it was not preserved for review on appeal. Id.
Additionally, when fundamental error is apparent on the face of the judgment itself, the courts will recognize and correct that error. See, e.g., Parker v. Dekle, 35 So. 4 (Fla. 1903) (finding fundamental error when trial court allowed the clerk of the court to determine damages when damages should have been decided by a jury). The error must be an error of law, not of fact, however. Id. Thus, when a jurisdictional or other fundamental error is apparent on the face of the record itself, that error may be considered by the appellate court, even if it was not objected to in the trial court or even raised on appeal. Id.
One area in which fundamental error may be found in a civil case is when a court grants a party relief that is not authorized by law, does not exist as a cause of action, or is not otherwise available as a remedy to the plaintiff. See I.A. v. H.H., 710 So. 2d 162, 165 (Fla. 2d DCA 1998).
For example, an award of a nonmarital asset as part of the equitable distribution in a divorce proceeding. See Coleman Co. v. Cargill Int’l Corp., 731 So. 2d 2, 4 (Fla. 3d DCA 1998). Another example would be granting a remedy on an oral contract when the uncontroverted evidence showed it violated the statute of frauds. See Belmont v. Belmont, 761 So. 2d 406 (Fla. 2d DCA 2000).
Occasionally, courts will use the fundamental error doctrine to correct mistakes or omissions at trial when an objection would not have been possible. For example, the entry of a judgment on unliquidated damages following a default judgment has been held to be fundamental error when the defaulting party had no notice of the trial on damages. See Security Bank, N.A. v. Bell South Adver. & Publ’g Corp., 679 So. 2d 795 (Fla. 3d DCA 1996).
Another example is where the complaint did not seek the type of damages the court ultimately awarded. See Hooters of Am., Inc. v. Carolina Wings, Inc., 655 So. 2d 1231 (Fla. 1st DCA 1995). Similarly, courts have reviewed judgments on appeal that were entered against a nonparty. See Norville v. Bell South Adver. & Publ’g Corp., 664 So. 2d 16 (Fla. 3d DCA 1995); Wright v. Scott, 658 So. 2d 1215 (Fla. 1st DCA 1995).
Beyond this, it would be difficult to try to categorize the types of error that will be deemed fundamental in civil cases. As one court stated, “[a]lthough fundamental error is extraordinarily difficult to define, the doctrine functions to preserve the public’s confidence in the judicial system.” Hagan v. Sun Bank of Mid-Florida, N.A., 666 So. 2d 580, 584 (Fla. 2d DCA 1996). “Relief is granted for a fundamental error not because the party has preserved a right to relief from a harmful error, but because the public’s confidence in our system of justice would be seriously weakened if the courts failed to give relief as a matter of grace for certain, very limited and serious mistakes.” Id.