An appeal is an opportunity for the appellate court to review an order or judgment of a lower tribunal and correct reversible errors. “But an appellate court will not consider an issue unless it was presented to the lower court. Furthermore, in 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.” Steinhorst v. State, 412 So. 2d 332, 338 (Fla. 1982) (citations omitted). For issues involving exclusion of evidence, there must be a proffer of the evidence that would have been presented. Finney v. State, 660 So. 2d 674, 684 (Fla. 1995).
The requirement of raising an issue, argument or objection in the lower tribunal before it can be raised on appeal, “is 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 an opportunity to correct it at an early stage of the proceedings;” and it will also “preserve the issue for intelligent review on appeal.” Castor v. State, 365 So. 2d 701, 703 (Fla. 1978).
The fundamental error doctrine is an exception to the rule that issues cannot be raised for the first time on appeal. See Castor v. State, 365 So. 2d 701, 703 (Fla. 1978). “‘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.” Sanford v. Rubin, 237 So. 2d 134, 137 (Fla. 1970).
In criminal law, fundamental error is “error that reaches 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,” or “error so prejudicial as to vitiate the entire trial.” Rutherford v. Moore, 774 So. 2d 637, 646 (Fla. 2000) (citations and internal quotes omitted). For example, an omission in jury instructions is fundamental error only if the omission is pertinent or material to what the jury must actually consider in order to convict. If there was no dispute over a certain element of the crime, the omission of an instruction on that element is not fundamental error. Griffin v. State, 160 So. 3d 63, 66 (Fla. 2015) (citation omitted).
In civil law, fundamental error occurs when the error will go “to the heart of a trial and vitiate its fairness.” Grau v. Branham, 761 So. 2d 375, 378 (Fla. 4th DCA 2000). In both criminal and civil law, a denial of due process rights is fundamental error. Slotnick v. Slotnick, 891 So. 2d 1086, 1089 (Fla. 4th DCA 2004). In fact, courts have said that “fundamental error must be equivalent to a denial of due process.” O’Brien v. Florida Birth-Related Neurological Injury Compensation Ass’n, 710 So. 2d 51, 53 (Fla. 4th DCA 1998).
One example of fundamental error is a violation of the due process right to be heard, testify and call witnesses. Pettry v. Pettry, 706 So. 2d 107, 108 (Fla. 5th DCA 1998). In Slotnick, it was fundamental error when a trial court summarily disposed of issues after informal discussion with the attorneys, without allowing the parties to present evidence or cross-examine witnesses. Similarly, in Weiser v. Weiser, 132 So. 3d 309, 311 (Fla. 4th DCA 2014), a court committed fundamental error when it denied some motions with prejudice solely because the allotted time for the hearing had run out; the court failed to provide a meaningful opportunity to be heard. For several other examples of errors that have been deemed fundamental, see O’Brien, 710 So. 2d 51.
As noted in O’Brien, the courts’ application of the fundamental error doctrine is limited. It is especially rare as a basis for a new trial due to improper closing arguments in civil trials: “Before a complaining party may receive a new trial based on an unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Murphy v. International Robotic Systems, Inc., 766 So. 2d 1010, 1031 (Fla. 2000).
Trial lawyers should gear all of their activity in the lower court toward a possible appeal, as one party or the other will most likely appeal. An experienced appellate lawyer may sometimes convince an appellate court, on a case-by-case basis, that a given unpreserved error was fundamental. But the Florida Supreme Court has said an appellate court “should exercise its discretion under the doctrine of fundamental error very guardedly.” Sanford, 237 So. 2d at 137. Thus, it is important to try to make every argument, raise every issue, and object to every error that might possibly need to be raised later in an appeal. Robin Bresky