Judging your appeal: a practitioner's perspective.

• Author: Reiter, Jack R.

One of the challenges facing a practitioner is judging the merits of an appellate proceeding to determine the likelihood of success or the possibility of failure. There is no mechanical formula for discerning whether a case will be won or lost on appeal. Nonetheless, certain objective factors can be routinely applied to help illuminate the relative merit of an appellate position. (1)

When examining the chances of success or failure in an appellate proceeding, one method of analysis begins by factoring the very nature of the order entered, which defines the scope of inquiry and intersects with the standard of review. Analyzing an appeal from these perspectives can guide a practitioner as to the inherent strengths or weaknesses of a position and provide insight into whether the appeal will succeed or fail.

Standards of Review

Generally, when appealing either a final order or a nonfinal order reviewable under Fla. R. App. P. 9.130 in a civil matter, there are three different standards of review that can be applied in varying gradations. These standards are de novo, abuse of discretion, and competent substantial evidence. Each standard applies in different circumstances and presents a different framework for assessing a lower tribunal's order. When evaluating the merits of an appeal, examining the standards of review presents a logical first step in weighing the chances of success or failure and plays a critical role in the analysis.

* De Novo--The de novo standard presents an appellant with the best chance of success by providing a proverbial second bite at the apple. When an appellate court applies the de novo standard, it literally examines an issue anew. This enables the appellate court to review the order and record in their entireties to determine whether the trial court's conclusion is contrary to law or otherwise erroneous. Furthermore, under this standard, the appellant does not face either heightened deference to the trial court or a presumption of correctness insulating the trial court's order. (2)

On the other hand, the de novo standard presents greater concern to an appellee because it eliminates deference to the trial court's conclusion. Therefore, an appellee who is asking the appellate court to affirm a decision evaluated under the de novo standard must demonstrate that the trial court reached the correct legal decision and cannot fall back on alternative arguments asserting that the presumption of correctness or deference to the trial judge require affirmance.

Trial court decisions that are deemed to be purely questions of law are subject to de novo review. (3) Examples of decisions reviewed de novo include those that interpret unambiguous contract language; (4) interpret language in insurance policies; (5) involve statutory interpretation; (6) examine whether legal issues are intertwined for purposes of a fees award; (7) determine whether a party has advanced sufficient facts to support a punitive damages claim; (8) or review an order granting a motion to dismiss. (9)

* Abuse of Discretion--Unlike decisions that are subject to the de novo standard, decisions that are deemed to be within the trial court's discretion present a much more significant appellate hurdle. As the Florida Supreme Court has explained, the abuse of discretion standard requires the appellate court to evaluate whether the trial court's decision is arbitrary, fanciful, or unreasonable. "If 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." (10) A trial judge's discretionary decision is clothed with a presumption of correctness. (11) Therefore, challenging a discretionary decision presents a lofty challenge. As an appellant, if you are facing the abuse of discretion standard, this should be heavily factored into the analysis of whether you have a meaningful chance of success. On the other hand, the appellee benefits greatly from this standard. The trial judge's discretionary ruling will be deemed correct, giving the appellee's position an edge on appeal.

Discretionary decisions generally involve matters that relate specifically to the conduct of trial, such as admitting or excluding evidence. (12) Other examples of discretionary decisions include orders denying a motion to vacate default (13) or to vacate a judgment under Fla. R. Civ. P. 1.540; (14) the application of a multiplier in an award of attorneys' fees; (15) rulings on objections to closing argument; (16) awards of permanent, periodic alimony and other decisions in the dissolution of marriage context; (17) findings regarding class certification; (18) and orders imposing sanctions for bad faith litigation. (19)

The abuse of discretion standard is rooted in the principle that the trial judge is better situated to examine certain factors and the overall impact upon a proceeding. For example, after a trial judge has overseen an entire trial, it will be within his or her discretion to decide whether the admission of certain evidence or an improper comment warrants a mistrial (20) and, at least in the absence of certain legal issues, whether to give proposed jury instructions. (21)

Substantial Competent Evidence

A perhaps even greater appellate burden is challenging a decision based upon factual findings. A factual decision, including one that forms the foundation for an...