Tuesday, July 8, 2014

Appellate Practice: When Is It Too Late For The Tipsy Coachman?

By Michael R. Bray

In general, claims not raised in the trial court will not be considered on appeal. See Dade County School Board v. Radio Station WQBA, 731 So. 2d 638, 644 (Fla. 1999). However, there are exceptions to this rule, one of which is known as the “tipsy coachman” doctrine. The tipsy coachman doctrine provides that when a trial court reaches the right result for the wrong reasons, that result will be upheld if there is any basis in the record to support it. Id. at 644-645. 

Although the tipsy coachman doctrine is well established, courts are not in agreement on the deadline for invoking it. In some cases, courts have applied the tipsy coachman doctrine based on issues raised as late as on motion for rehearing, see, e.g., Jaworski v. State, 804 So. 2d 415 (Fla. 4th DCA 2001), while in other cases, issues raised for the first time at oral argument were held to be too late.
See, e.g., Powell v. State, 120 So. 3d. 577 (Fla. 1st DCA 2013); E.K. v. Dep’t of Children & Fam. Servs., 948 So. 2d 54 (Fla. 3d DCA 2007).

For example, in Jaworski v. State, when the appellee asserted a new ground for affirmance in a motion for rehearing, the Fourth District granted rehearing and affirmed the trial court’s decision based on that newly raised issue. Jawowski, at 419. The court explained that “[a]s an appellate court … we are obligated to entertain any basis to affirm the judgment under review, even one the appellee has failed to argue. … In other words, an affirmance is required if any theory, whether argued or not, would sustain the judgment.” Id. 

In contrast, the First District in Powell v. State refused to apply the tipsy coachman doctrine after briefing had ended. Powell, at 593. In Powell, the appellee argued in its motion for rehearing that the court was required under the tipsy coachman doctrine to consider an issue that the appellee had raised for the first time at oral argument. Id. at 590. The court rejected that argument, reasoning that such a rule would unfairly limit appellants’ ability to respond to the newly raised issues, requiring appellants to use their last few minutes of oral argument to attempt to respond to those issues, rather than the issues that were actually briefed. Id. at 591. The court also noted that application of the tipsy coachman doctrine so late in an appeal would incentivize appellees to ambush appellants at oral argument with previously unraised issues. Id.

The diverging opinions as to the proper timing of appellees’ tipsy coachman arguments create a pitfall for attorneys. Practitioners should be aware of this uncertainty in the law and plan accordingly to ensure their arguments are heard. As the First District stated in Powell, “the tipsy coachman doctrine ‘does not rescue parties from their own inattention to important legal detail.’” Id. at 593, quoting E.K., 948 So. 2d at 57.