STEVEN E. QUINNELL, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF JAMES FREDERICK ZINK, DECEASED, APPELLANT,
v.
KATHY PLATT, AS PERSONAL REPRESENTATIVE OF THE ESTATE OF BRIAN CHARLES FALCON, DECEASED, APPELLEE
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Appellant challenged a trial court's conclusion that he failed to accept a settlement offer before it was revoked in a wrongful death dispute. The appellate court affirmed, finding that appellant's legal argument was not preserved in the trial court and did not constitute fundamental error.
The trial court did not err because appellant failed to preserve the legal argument for appeal by not presenting it to the trial court, and the alleged error did not constitute fundamental error. Therefore, both the settlement decision and the cost judgment were affirmed.
[1] An issue must be presented to the lower court, and the specific legal argument to be argued on appeal must be part of that presentation, to be preserved for appellate rev…
[2] An objection must be sufficiently specific to apprise the trial judge of the error and preserve the issue for intelligent review on appeal.
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Join FLexlaw to unlock all legal intelligence“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation”
Establishes the preservation requirement for appellate review of legal arguments
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Join FLexlaw to unlock all legal intelligenceAppellant (as personal representative of the estate of James Frederick Zink) received a settlement offer from appellee (as personal representative of …
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In case number 1D08-4888, appellant contends that the trial court erred as a matter of law in concluding that, based on the undisputed material facts, appellant (through its insurer) failed to accept appel-lee’s settlement offer before appellee revoked that offer. In case number 1D09-0788, appellant contends that, if we reverse in case number 1D08^4888, we must also reverse the cost judgment entered in favor of appellee.
Having carefully reviewed the record, we conclude that the legal argument made by appellant in case number 1D08-4888 was not made in the trial court and, therefore, was not preserved. See, e.g., Tillman v. State, 471 So.2d 32, 35 (Fla.1985) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation”); Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005) (same); Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (same). See generally Castor v. State, 365 So.2d 701, 703 (Fla.1978) (“To meet the objectives of any contemporaneous objection rule, an objection must be sufficiently specific both to apprise the trial judge of the putative error and to preserve the issue for intelligent review on appeal”). Because the alleged error was not preserved and it does not constitute fundamental error, see, e.g., State v. Johnson, 616 So.2d 1, 3 (Fla.1993) (“for an error to be so fundamental that it can be raised for the first time on appeal, the error must be basic to the judicial decision under review and equivalent to a denial of due process”), appellant has failed to carry his burden of demonstrating that harmful error occurred in ease number 1D08-4888. See, e.g., In re Lieber’s Estate, 103 So.2d 192, 196 (Fla.1958) (“On appeal it is the burden of the appellant to show error, ... and he must make it appear from the record”). Accordingly, we affirm as to case number 1D08^1888. Because the outcome of case number 1D09-0788 is dependent on that in case number 1D08-4888, we affirm as to that ease as well.
AFFIRMED.
WOLF, WEBSTER, and LEWIS, JJ., concur.
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LaCOSTE v. LaCOSTE, 58 So. 3d 404 (Fla. 1st DCA 2011)…r further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.’ ” Quinnell v. Platt, 23 So. 3d 746, 747 (Fla. 1st DCA 2009) (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla.1985)). It is clear from the record the former wife did not argue, either at trial or in a motion for rehearing,2 that her interest in the land is a non-marital asset. Conseq…
Authorities Cited
- Castor v. State, 365 So. 2d 701 (Fla. 1978)
- Tillman v. State, 471 So. 2d 32 (Fla. 1985)
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Harrell v. State, 894 So. 2d 935 (Fla. 2005)
- Sunset Harbour Condo. Ass'n v. Robbins, 914 So. 2d 925 (Fla. 2005)
- In re Est. OF Max Lieber, 103 So. 2d 192 (Fla. 1958)