Chapter 9 Standards of Review on Appeal

• Library: Handling Appeals in Arkansas (2022 Ed.)

CHAPTER 9 STANDARDS OF REVIEW ON APPEAL

Chief Judge Brandon J. Harrison and Martha Tucker Ayres

A. Introduction

1. De novo Review

2. Clearly Erroneous

3. Substantial Evidence

4. Abuse of Discretion

B. Standards of Appellate Court Review

1. Administrative Agency Decisions

2. District Court Decisions

3. Circuit Court Decisions

(a) Questions of law

(b) Findings of fact - bench trials

(c) Class action certification

(d) Default judgments

(e) Dismissals

(f) Discovery

(g) Summary judgments

(h) Evidence

(i) Jury instructions

(j) Directed verdict or dismissal

(k) Judgment notwithstanding the verdict

(l) Motions for new trial

(m) Juror misconduct

(n) Remittitur

(o) Domestic relations

(p) Probate

(q) Attorney fees

(r) Stays

(s) Extraordinary writs

(t) Arbitration award

4. Appellate Court Decisions

(a) Supreme Court review of the Court of Appeals

(b) Petitions for rehearing

A. Introduction

By rule appellants and cross-appellants must succinctly state the standard of review "at the beginning of the discussion of the issue" on appeal. ASCR 4-2(a)(7). That's the dry-as-dust rule upfront. But wait! On this appellate-law point you must "seek simplicity and distrust it."

Standards of review determine the degree of deference (if any) the appellate court will give the circuit court's or administrative agency's decisions in the case being appealed. For trial attorneys, the standards should mold legal and fact-based arguments before a court or agency because the applicable standard of review "will one day be the lens through which [the] client's day in court will be examined." R. Christopher Lawson, Seeing the Appellate Horizon: Civil Trial Strategy and Standards of Review in the Eighth Circuit, 4 J. APP. PRAC. & PROCESS 561, 562 (2002). For appellate lawyers, the standard of review is "the blueprint for success on appeal, and the tool that shapes every winning argument." Id.

So carefully consider the standards of review. Ignore them at your client's potential peril. And be sure to state and apply the appropriate standard for each issue on appeal. Wal-Mart Stores, Inc. v. P.O. Mkt., Inc., 347 Ark. 651, 664, 66 S.W.3d 620, 628-29 (2002).

In some cases, lawyers offer competing standards on a particular issue. E.g., Advocat v. Sauer, 353 Ark. 29, 42-43, 111 S.W.3d 346, 353 (2003). The appellate court itself may view the dispute differently than counsel and choose a standard the parties don't press. Morgan v. Chandler, 367 Ark. 430, 433, 241 S.W.3d 224, 226 (2006). The point is not to treat Rule 4-2(a)(7)'s requirement mechanically, or you'll miss a chance to advocate well. And make sure the record on appeal includes all the information you will need to fully prosecute or defend the appeal, whatever standard could reasonably be applied.

Many metaphors exist concerning the standards of review. But whether a standard is termed a filter, lens, astrolabe, compass, or the next-generation GPS, the point is this: you must write your brief knowing how an appellate court will orient itself towards your case, and what mindset the court will use to guide it to decision. Familiarizing yourself with the applicable standard of review—by studying some opinions where the Arkansas Supreme Court and Court of Appeals have applied it—is all you need to serve your client well regarding this base part of the appeal process. A deliberation with the Oracle at Delphi is not required.

I give up. Now I realize fully what Mark Twain meant when he said, "The more you explain it, the more I don't understand it."

Justice Robert H. Jackson
SEC v. Chenery Corp., 332 U.S. 194, 214 (1947).

It's helpful to think of a sliding scale of deference when discussing the four primary standards of review. On this continuum, the de novo standard defers least to the forum that decided the issue being appealed. At the other extreme is the abuse-of-discretion standard, the most deferential of the four. The remaining two standards, substantial evidence and clearly erroneous, fall between the extremes.

Some standards of review don't offer the same degree of deference in every context, meaning there is a sliding scale within a specific standard. This is particularly so regarding abuse-of-discretion issues (discussed below). But variations also occur on questions of law. For example, statutory interpretation questions, like other law-based issues, are usually reviewed de novo. Holt v. McCastlain, 357 Ark. 455, 461, 182 S.W.3d 112, 116 (2004).

1. De novo Review

You know—or soon will—that in state court an appeal from a district court to a circuit court gets you a "trial de novo" in the circuit court. Ark. Const. amend. 80, § 7(A). BLACK'S defines the term "trial de novo" as "[a] new trial on the entire case—that is, on both questions of fact and issues of law—conducted as if there had been no trial in the first instance." BLACK'S LAW DICTIONARY 1544 (8th ed. 2004). This is Arkansas's view. E.g., Harrell v. City of Conway, 296 Ark. 247, 248, 753 S.W.2d 542, 543 (1988) (a trial de novo proceeds "as though there had been no trial in the lower court").

But a trial de novo is not the same as de novo review. The Court of Appeals has explained that "[w]hile our appellate review is de novo, it is conducted on a record already made ... . It is not a trial de novo, such as appeals from [district court] to circuit court, where cases appealed are tried anew." Paslay v. Ark. Dep't of Human Servs., 75 Ark. App. 19, 21, 53 S.W.3d 67, 68 (2001).

When review is de novo, the appellate court decides independently the issue on appeal based on the record developed in the trial court. But it will not usually defer to the trial court's ruling. Nationwide Ins. Enter. v. Ibanez, 368 Ark. 432, 435, 246 S.W.3d 883, 886 (2007); Murphy v. City of W. Memphis, 352 Ark. 315, 320-21, 101 S.W.3d 221, 225 (2003); Wyatt v. Giles, 95 Ark. App. 204, 205, 235 S.W.3d 552, 554 (2006). We've mentioned before that appellate courts review questions of law de novo, though they may occasionally defer to the circuit court's interpretation of a statute or an administrative agency. Also, cases that would have been heard in the former chancery and probate courts before Amendment 80's passage are now reviewed de novo on questions of law and of fact. Hollandsworth v. Knyzewski, 353 Ark. 470, 475, 109 S.W.3d 653, 656-57 (2003) (the holding was modified on other grounds by Cooper v. Kalkwarf, 2017 Ark. 331, 532 S.W.3d 58); Remington v. Roberson, 81 Ark. App. 36, 39, 98 S.W.3d 44, 46 (2003). But such opinions make plain that fact-findings will not be reversed unless they are clearly erroneous.

2. Clearly Erroneous

The standard of review for fact-finding during bench trials is in Rule 52(a) of the Arkansas Rules of Civil Procedure. A factual finding is a "simple straightforward statement of what happened." Teston v. Ark. State Bd. of Chiropractor Exam'rs, 361 Ark. 300, 309, 206 S.W.3d 796, 802 (2005) (internal citation and quotation omitted). The rule states: "Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of the witnesses." ARCP 52(a).

Rule 52(a)'s parenthetical phrase, which is not in the corresponding federal rule, reflects the standard chancellors used before the Arkansas Rules of Civil Procedure were adopted. E.g., Gibson v. Heiman, 261 Ark. 236, 240, 547 S.W.2d 111, 114 (1977). Arkansas's courts often slight it when applying ARCP 52(a). Our courts have instead been using the United States Supreme Court's formulation in United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948). There, the Supreme Court wrote this: "A finding is 'clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been committed." For an Arkansas case that applied this standard, see Thompson v. Bank of Am., 356 Ark. 576, 580, 157 S.W.3d 174, 176 (2004).

The clearly-erroneous standard differs from the standard used in jury cases. In jury cases, the standard is whether substantial evidence supports the verdict. But the appellate-review standard of a court's fact-findings during a bench trial is whether they are clearly erroneous. Ark. Dep't of Human Servs. v. Spears, 311 Ark. 96, 100, 841 S.W.2d 624, 625 (1992). But see Taylor v. Richardson, 266 Ark. 447, 449-50, 585 S.W.2d 934, 935 (1979) (applying substantial-evidence standard in a bench trial before the effective date of ARCP 52).

Though Arkansas cases are not explicit on the point, the clearly-erroneous standard arguably allows tougher appellate scrutiny when reviewing a bench trial, as compared to a jury verdict. Oil Screw Noah's Ark v. Bentley & Felton Corp., 322 F.2d 3, 5 (5th Cir. 1963); Steven Alan Childress, Standards of Review Primer: Federal Civil Appeals, 229 F.R.D. 267, 272 (2005) ("Judge-made findings should be somewhat more readily reversed than jury findings[.]"). Thus, an appellate court should only reverse a trial court's fact-findings if substantial evidence is lacking; Duty v. U.S. Dep't of Interior, 735 F.2d 1012, 1015 (6th Cir. 1984); or if the reviewing court "is left with the impression that the [findings are] not the truth and right of the case." W.R.B. Corp. v. Geer, 313 F.2d 750, 753 (5th Cir. 1963).

The clearly-erroneous standard, however, "does not entitle a reviewing court to reverse the finding of the trier of fact simply because it is convinced that it would have decided the case differently." Anderson v. Bessemer City, 470 U.S. 564, 573 (1985). "If the [trial] court's account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though ... it would have weighed the evidence differently." Amadeo v. Zant, 486 U.S. 214, 223 (1988) (quoting Anderson, 470 U.S. at 573-74). "[W]here there are...