Arguments Not Presented in the Initial Brief are Waived
“The purpose of an appellate brief is to present arguments in support of the points on appeal.” Duest v. Dugger, 555 So. 2d 849, 852 (Fla. 1990). “It is a rather fundamental principle of appellate practice and procedure that matters not argued in the briefs may not be raised for the first time [later in the appeal].” Expert Inspections, LLC v. United Prop. & Cas. Ins. Co., 333 So. 3d 200, 205 (Fla. 4th DCA 2022) (quoting Ayer v. Bush, 775 So. 2d 368, 370 (Fla. 4th DCA 2000)).
In other words, “an argument may not be raised for the first time in a reply brief.” Caldwell v. Fla. Dep’t of Elder Affs., 121 So. 3d 1062, 1064 n.2 (Fla. 1st DCA 2013) (emphasis added). On a related note, “[a] party may not go outside the record in making appellate arguments.” Krock v. Rozinsky, 78 So. 3d 38, 42 (Fla. 4th DCA 2012). See, e.g., Doctors Assocs., Inc. v. Thomas, 898 So. 2d 159, 162 (Fla. 4th DCA 2005) (“An appellate court may not consider matters outside the record.”).
There is one very limited exception to this rule. “Appellate courts may not address an issue not raised in the briefs unless the issue amounts to fundamental error.” Randall v. Griffin, 204 So. 3d 965, 967 (Fla. 5th DCA 2016). However, “[a]ppellate courts should limit their application of fundamental error except in cases that equate to a denial of due process.” Id.
Moreover, off-hand references to an argument in the initial brief is not enough. The argument must be sufficiently presented for the appellate court to review it. For example, “a sentence does not an argument make.” Acad. for Positive Learning, Inc. v. Sch. Bd., 359 So. 3d 767, 776 (Fla. 4th DCA 2023) (May, J., dissenting). Similarly, “perfunctory statements are insufficient to present an argument for appellate review.” Caldwell, 121 So. 3d at 1064.
See also, Shere v. State, 742 So. 2d 215, 217 n.6 (Fla. 1999) (recognizing that an issue raised in a brief without argument is insufficiently presented for review); Coolen v. State, 696 So. 2d 738, 742 n.2 (Fla. 1997) (finding that raising an argument in a footnote without fully briefing the issue constituted waiver of that argument); Duest, 555 So. 2d at 852 (“Merely making reference to arguments below without further elucidation does not suffice to preserve issues, and these claims are deemed to have been waived.”); Hammond v. State, 34 So. 3d 58, 59 (Fla. 4th DCA 2010) (“Claims for which an appellant has not presented an argument, or for which he provides only conclusory argument, are insufficiently presented for review and are waived.”).