Appellate standards of review.

• Author: Sepler, Harvey J.
• Position: Florida

Soon, all appellate briefs filed in Florida may have to contain a discussion of relevant standards of review. This practice is already required of briefs filed in the 11th Circuit Court of Appeals, see 11th Cir. R. 28-2 (I) (iii), Fed. R. App. P. 28, and state procedural rules may soon require them. See proposed change to Fla. R. App. P. 9.210 (b)(5).

This article explores the various standards of review applicable to state appeals, with specific attention given to some of the more commonly faced issues arising in civil and criminal appellate practice. For more extensive discussion, readers are encouraged to consult, e.g., Padavano, Florida Appellate Practice (2d ed. 1997), and Childress and Davis, Federal Standards of Review (2d ed. 1991).

Nearly all trial level decisions can be classified into one of three categories: decisions of fact, decisions of law, and discretionary decisions. The selection of an appropriate standard of review centers on the type of decision made.

Decisions of Fact

Because trial courts are generally in a better position to assess the characteristics of testimony or other evidence they admit, appellate courts defer to the trial court to resolve factual questions. Shaw v. Shaw, 334 So. 2d 1 (Fla. 1976). This is the case, for example, when assessing witness credibility or assigning weight to the evidence and occurs in the jury trial, nonjury trial, evidentiary, and administrative hearing contexts. See, e.g., Gulf Coast Co-op, Inc. v. Clark, 674 So. 2d 120 (Fla. 1966) (administrative); White v. State, 446 So. 2d 1031 (Fla. 1984) (jury); Clegg v. Chipola Aviation, Inc., 458 So. 2d 1186 (Fla. 1st DCA 1984) (nonjury); State v. Garcia, 431 So. 2d 651 (Fla. 3d DCA 1983) (motion to suppress evidentiary hearing).

If the evidence presented below is undisputed, and the factual finding is merely an inference drawn from it, the standard of review is whether the record shows competent substantial evidence to support the order or judgment. See SEDS, Inc. v. Hartford Fire Ins. Co., 724 So. 2d 1258 (Fla. 4th DCA 1999); The Florida Bar v. Siegel, 511 So. 2d 995 (Fla. 1987). On the other hand, if the evidence is disputed, appellate courts use the less restrictive clearly erroneous standard of review. As the Supreme Court explained:

A finding of fact by the trial court in a nonjury case will not be set aside on review unless there is no substantial evidence to sustain it, unless it is clearly against the weight of the evidence, or unless it was induced by an erroneous view of the law. A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion. 3 Am Jur. 471. When the appellate court is convinced that an express or inferential finding of the trial court is without support of any substantial evidence, is clearly against the weight of the evidence or that the trial court has misapplied the law to the established facts, the decision is "clearly erroneous" and the appellate court will reverse because the trial court has "failed to give legal effect to the evidence" in its entirety.

Holland v. Gross, 89 So. 2d 255, 258-59 (Fla. 1956).

Thus, because jury verdicts and nonjury findings unquestionably rest on factual determinations, appellate courts look to see whether the record contains competent substantial evidence to support the decision. See Helman v. Seaboard Coast Line R.R. Co., 349 So. 2d 1187 (Fla. 1977) (jury); Abreau v. Amaro, 534 So. 2d 771 (Fla. 3d DCA 1988) (nonjury); State v. Garcia, 431 So. 2d 651 (Fla. 3d DCA 1983) (evidentiary hearing); Gershanik v. Dept. of Prof'l Regulation, Bd. of Med. Examiners, 438 So. 2d 302 (Fla. 3d DCA 1984) (administrative). But see Gen. Tele. Co. of Florida v. Florida Pub. Serv. Comm., 446 So. 2d 1063 (Fla. 1984) (arbitrary and capricious standard used when reviewing administrative rule-making authority); see generally Florida Appellate Practice [sections] 9.6 at 156.

Finally, it should be noted that Florida's competent substantial evidence test is consistent with the clearly erroneous test under federal law. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273 (1982); Rule 52(a), Fed. R. Civ. P.

Decisions of Law

Where the decision rests either on a pure matter of law or on documentary evidence that can be evaluated equally well by the appellate and trial courts, the standard of review is de novo. De novo review, or "free review," see Federal Standards of Review [sections] 2.14 Vol. I at 276, means simply that "although the trial court is presumed to be correct, the appellate court is free to decide the legal issue differently without paying deference to the trial court's review of the law." Padavano, Standards of Review in Criminal Cases at 5 (unpublished manuscript of address to Florida Public Defender Association Seminar (February 17, 1999)).

The principle here is that, in matters of law, the trial court is not in a superior position to evaluate questions and the appellate court may reach its own conclusion independent of the decision of a lower court. For example, because issues of statutory construction and interpretation of a written instrument can be equally determined by either level of court, the de novo standard is appropriate for such review. See, e.g., Racetrac Petroleum, Inc. v. Delco Oil, Inc, 721 So. 2d 376 (Fla. 5th DCA 1998) (statutory construction); Angell v. Don Jones Ins. Agency, Inc., 620 So. 2d 1012 (Fla. 2d DCA 1993) (interpretation of employment contract).

Similarly, where the trial court dismisses a complaint or directs judgment as a matter of law (e.g., summary judgment or directed verdict), the appellate court applies the de novo standard of review. See, e.g., Menendez v. The Palms West Condominium Ass'n, Inc., 736 So. 2d 58 (Fla. 1st DCA 1999) (summary judgment); Rittman v. All State Ins. Co., 727 So. 2d 391 (Fla. 1st DCA 1999) (dismissing complaint for failure to state a cause of action); Plotch v. Gregory, 463 So. 2d 432 (Fla. 4th DCA 1985).

In the summary judgment and directed verdict contexts, the test is whether there are factual questions whose resolution would permit a reasonable jury to decide in a different way than that directed by the court. See Moore v. Morris, 475 So. 2d 666 (Fla. 1985). In both contexts, appellate review is actually a twostep process: 1) whether a genuine issue (or, in the case of the directed verdict, a disputed issue) of material fact exists; and 2) whether the trial court applied the correct rule of law. See Florida Appellate Practice [sections] 9.4 at 148-49.

Finally, it should be noted that Florida's use of de novo review is consistent with that of federal law. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938 (1995).

Discretionary Decisions

The third category of decision concerns those exercised in the trial court's discretion; here, appellate courts will not reverse absent an abuse of discretion. See Mercer v. Raine, 443 So. 2d 944 (Fla. 1983).

The test for whether discretion has been abused is one of reasonableness--that is "[i]f reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion." Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). Said another way, discretion has been abused where the decision is "arbitrary, fanciful or unreasonable." Delno v. Market Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942), cited approvingly in Canakaris, 382 So. 2d at 1203.

The substantive areas traditionally left to trial court discretion include injunctive relief and matters of family law.

Wide discretion rests in the trial court in granting, denying, or modifying injunctions. An appellate court will not interfere with the exercise of this discretion unless some abuse thereof is clearly made to appear, or unless the trial court's ruling is clearly improper. A presumption exists as to the correctness of the ruling of the trial court, and the burden is on the appellant to make error appear.

Duvallon v. Duvallon, 409 So. 2d 1162, 1163 (Fla. 3d DCA 1982).

However, a distinction should be drawn between injunctive orders resting on purely legal grounds (de novo standard of review) and those resting on factual grounds (abuse of discretion standard of review). Compare Operation Rescue, et al. v. Women's Health Ctr., Inc., 626 So. 2d 664 (Fla. 1993), with Zeskind v. Jockey Club Condominium Apartments, Unit No. II, Inc., 468 So. 2d 1021 (Fla. 3d DCA), review denied, 479 So. 2d 119 (Fla. 1985) (reviewing fact-based injunctions according to competent substantial evidence test).

Recognizing the need for discretion in the family law area, the Supreme Court explained:

Our trial judges are granted this discretionary power because it is impossible to establish strict rules of law for every conceivable situation which could arise in the course of a domestic relations proceeding. The trial judge can ordinarily best determine what is appropriate and just because only he can personally observe the participants and events of the trial.

Canakaris, 382 So. 2d at 1202.

As such, the abuse of discretion standard has been used to review cases involving the dissolution of marriage and child custody, Canakaris, the award of alimony, Kuvin v. Kuvin, 442 So. 2d 203 (1983), and the distribution of marital property. Troncini v. Troncini, 466 So. 2d 203 (Fla. 1983).

Here, too, a distinction must be drawn between orders based purely on application of the law (de novo standard of review) and those based on an equitable resolution of the facts of the particular case (abuse of discretion standard of review). See Walter v. Walter, 464 So. 2d 538, 539 (Fla. 1985). An example of the former type of order is discussed in Grapin v. Grapin, 450 So. 2d 853 (Fla. 1984), wherein a trial court order expanding support...