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Unforced Errors: Don't Leave a Ground of the Court's Ruling Unchallenged

We have previously explained the importance of appealing every aspect of a trial court's order granted on multiple, independent grounds. The Eleventh Circuit recently reminded us of that, but also that in opposing motions at the trial court level, attorneys must address all of the grounds relied on for the court's earlier ruling.

Federal Deposit Insurance Corp. v. Loudermilk, 930 F.3d 1280 (11th Cir. 2019), is remarkable in several respects and worth a read by every appellate practitioner. But of particular importance is its reason for its affirmance of the district court's evidentiary ruling.

The defendants, directors of a bank under receivership, intended to offer evidence at trial that the Great Recession was an intervening cause that absolved them of liability. The FDIC moved in limine to exclude the evidence on two grounds: first, because it was irrelevant; and second, because the court had already ruled that the defendants could not present such evidence after the defendants withdrew their intervening-cause affirmative defense.

The district court granted the motion in limine on both grounds, explaining in its order that in opposing the motion, the directors had not challenged the earlier evidentiary ruling. Instead, they contested the relevance arguments only.

The Eleventh Circuit affirmed. Although the defendants explained to the appellate court why they withdrew the intervening-cause affirmative defense, they never explained why they failed to challenge the district court's earlier evidentiary ruling when opposing the motion in limine, or why that ruling was error. Because the district court was simply enforcing its earlier unchallenged ruling, the Eleventh Circuit explained, "we cannot say that it abused its discretion."

Practice Tips

The circumstances in Loudermilk were "a little unusual," but the lesson remains for a broad range of trial rulings. As a general rule, to obtain a reversal of a ruling on appeal, all of the grounds announced for the ruling must be demonstrated to be error. Indeed, in some jurisdictions, that would be the case under the "right-for-any-reason" rule even if the alternative ground was not expressly stated by the trial court as a basis for its ruling.

Even at the trial court level, attorneys should consider and address all of the grounds raised by the other side in motions and other filings, including those based on earlier rulings. If the other side relies on an earlier ruling to support a position made later in litigation, and that earlier ruling was incorrectly made, do not fail to challenge it and explain why it, too, is error.

©2011-2020 Carlton Fields, P.A. National Law Review, Volume IX, Number 255


About this Author

Sylvia H. Walbolt Civil Appeals Lawyer Carlton Fields Law Firm

Sylvia Walbolt handles civil appeals in both federal and state courts, in all areas of the law, including torts, product liability, business disputes, construction law, securities laws, class actions, constitutional, insurance, antitrust, eminent domain, and employment law.

Sylvia, a former president of the American Academy of Appellate Lawyers, presented the oral argument in an appeal resulting in the reversal of a $1.1 billion judgment and co-authored the brief in another appeal resulting in the reversal of a $1.58 billion judgment. She has presented oral arguments before all...

Nicholas A. Brown, Carlton Fields, Trial lawyer

Nick Brown’s practice focuses on appeals and trial support in state and federal courts. He also serves as the reporter for the Florida Supreme Court Committee on Standard Jury Instructions in Civil Cases, which allows him to keep abreast of hot issues working through Florida’s appellate and trial courts.

At the appellate level, Nick handles all aspects of appeals, from early case assessments and evaluations of appellate issues, to motions practice and briefing, to presenting oral argument. He also consults on strategic matters to assist other attorneys both inside and outside Carlton Fields in selecting and refining issues that will best resonate with the appellate court, including conducting mock court sessions.

At the trial level, Nick develops and presents dispositive motions, prepares jury instructions, handles charge conferences, and provides legal support for the purpose of preserving claims of error. He is a regular contributor to the firm’s I Object! blog, which focuses on preservation of error at trial.

Nick’s areas of concentration include complex commercial and tort litigation, insurance coverage disputes, real property litigation, and consumer finance, all at both the trial and appellate level. He is an active member in the firm’s data privacy and cybersecurity task force as well as its e-discovery task force. Nick is also dedicated to providing pro bono legal services to ensure access to the justice system.