You have filed your notice of appeal and you are working diligently on your Initial Brief. As you are reviewing the record, you see the possibility for a great issue to raise on appeal. But wait, it was not raised below. May you raise it on appeal? Generally, in a civil case in Florida, the appellate court will not consider an issue that has been raised for the first time on appeal. See Miami v. Cosgrove, 516 So. 2d 1125 (Fla 3rd DCA 1987); Manning v. Tunnell, 943 So. 2d 1018 (Fla. 1st DCA 2006).
But what if it is fundamental error? Yes, it is well established that fundamental error may be raised for the first time on appeal. See Talbot v. Rosenbaum, 142 So. 3d 965 (Fla. 4th DCA 2014). Fundamental error, however, applies in a limited set of circumstances and is only to correct those errors, which go “to the foundation of the case, or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So. 2d 134 (Fla. 1970).
For example, the denial of due process is fundamental error. See Weiser v. Weiser, 132 So. 3d 309 (Fla. 4th DCA 2014). For instance, the lack of subject matter jurisdiction is fundamental error. See Stel-Den of America, Inc. v. Roof Structures, Inc., 438 So. 2d 882 (Fla. 4th DCA 1983); S v. S, 831 So. 2d 709 (Fla. 3d DCA 2002).
What if it is not fundamental error, but rather lack of sufficient evidence to support the judgment? It depends. If the “action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised” for the first time on appeal. See Florida Rules of Civil Procedure 1.530(e). For instance, in Smith v. Smith, 2017 Fla. App. Lexis 12477 (Fla. 4th DCA 2017), the Former Husband had not argued below that there was insufficient evidence to support the attorney fee award. The Former Husband rather raised this issue for the first time on appeal and the Fourth District Court of Appeal held that he could raise this issue on appeal pursuant to Florida Rules of Civil Procedure 1.530(e). Id. The Fourth District than reversed the fee award because there was no competent, substantial evidence for part of the fee award and remanded for additional findings or an additional hearing, if necessary. Id. Fla. R. Civ. P. 1.530(e), however, does not apply to actions tried by a jury.