Abuse of discretion: misunderstanding the deference accorded trial court rulings.

• Jurisdiction: United States
• Date: 01 June 2005
• Author: Whitmore, Laura

A century ago, the Florida Supreme Court, following Illinois law, announced that it would reverse certain issues only if the appellant demonstrated that the trial court had committed a "gross abuse of discretion." Yet, on other issues, the court remained willing to exercise its power to reverse trial courts based on a mere abuse of discretion. Over time, it became clear that the legal community needed a workable definition of "abuse of discretion" to help apply these rules. This need was heightened by the creation of the district courts of appeal in 1957, when suddenly three more appellate courts were working with their own concepts of abuse of discretion.

In 1980, the Florida Supreme Court finally created that definition in Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). Unfortunately, the court did not reject, or even discuss, gross abuse of discretion or any other heightened form of abuse. However, the Supreme Court has never thereafter discussed or relied on the concept of a gross abuse of discretion.

The definition of abuse of discretion in Canakaris established the "no reasonable person" standard. After Canakaris, a more deferential standard of review, such as gross abuse of discretion, was unworkable because the legitimacy of trial court rulings could never be supported by a standard lower than the "no reasonable person" standard.

The case law in the last 20 years demonstrates the inability of good judges to apply the gross abuse of discretion standard in a post-Canakaris world. The courts have attempted various one- and two-tiered approaches to the standard, none of which is entirely satisfactory. Currently, the district courts of appeal seem to have the option of applying either a gross abuse of discretion or an abuse of discretion standard when reviewing a trial court's discretionary rulings, a situation which creates the appearance of inconsistency and unfairness.

In order to rectify this situation, Florida should once again follow the lead of Illinois and reject all standards of review that are more deferential than "abuse of discretion." Florida should embrace a single abuse of discretion standard, recognizing that this standard of review is tempered by the nature of the issue on appeal. Some issues involve public policies or established case law that effectively narrow the trial court's options and reduce the appellate court's deference to that trial court's decision. Other issues involve matters that are very difficult to second-guess on review or have no outcome that is preferred by policy or case law. In these cases, abuse of discretion results in great deference to the trial court. Thus, it is the underlying policies associated with the specific legal issues, and not the verbiage of the standard of review, that apportions power over the finality of judgments between trial courts and appellate courts. The district courts should certify the application of the "gross abuse of discretion" standard in this post-Canakaris world to the Florida Supreme Court in hopes that it will provide the needed guidance.

Historical Development of Gross Abuse of Discretion Standard in Florida

The term "gross abuse" made one of its first appearances in Russ v. Gilbert, 19 Fla. 54 (Fla. 1882). In support of its application of a gross abuse of discretion standard when reviewing an order refusing to open a default, the Russ court cited a series of Illinois cases, including Greenleaf v. Roe, 17 Ill. 474 (Ill. 1856), which employed a gross abuse standard. (1)

The next major step in the evolution of the gross abuse standard occurred in Benedict v. W.T. Hadlow Co., 42 So. 239 (Fla. 1906), and Coggin v. Barfield, 8 So. 2d 9 (Fla. 1942). Relying on Russ, both cases applied the gross abuse standard when reviewing the denial of a motion to set aside a default judgment. Benedict and Coggin are important because they are relied on by North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962), in which the Supreme Court held that a showing of gross abuse of discretion is necessary on appeal to justify reversal of the trial court's ruling on a motion to vacate a default judgment. North Shore appears to be the main source of confusion as to the applicable standard and has created debate not only among the districts, but also within them, because some courts have chosen to find a dual standard in North Shore. The courts in favor of this dual standard note that North Shore involved an order of the trial court granting a motion to vacate a default, rather than one refusing to do so.

Interpreting North Shore, the Second District Court of Appeal adopted a two-pronged standard regarding review of the granting or denial of a motion to vacate a default. In Marshall Davis, Inc. v. Incapco, Inc., 552 So. 2d 206 (Fla. 2d DCA 1990), default judgment was entered against the defendant and the circuit court denied the defendant's motion to set aside the default. The Second District found an abuse of discretion and reversed the circuit court's refusal to set aside the default, stating, "Although a party must establish a gross abuse of the trial court's discretion to justify an appellate court's reversal of a ruling on a motion to set aside a default, a lesser showing is required to reverse a denial of a motion to set aside a default than to reverse a granting of such motion." (2) Although this language appears to create varying degrees of gross abuse, it has been interpreted as creating a standard in which abuse of discretion is used when reversing a denial of a motion to set aside default, while gross abuse of discretion is used to reverse the granting of such a motion.

The Fourth District Court of Appeal has both explicitly adopted and rejected the dual standard found in the Second District. In 1999, the Fourth District decided George v. Radcliffe, 753 So. 2d 573 (Fla. 4th DCA 1999), in which the issue was the denial of a motion to vacate a default. In George, the court, citing North Shore, affirmed based on a finding of no gross abuse of discretion. (3) However, on motion for rehearing, the court took a closer look at the standard of review and decided that the correct standard was abuse of discretion (not gross abuse). The court declined a rehearing because the application of the abuse standard would not have changed the case's outcome. (4)

In deciding the motion for rehearing, the Fourth District suggested that a dual standard derived from North Shore would be incorrect because North Shore relied on Benedict, in which the trial court had denied a motion to vacate and the standard of review applied was gross abuse. (5) The court conceded that the correct standard that should have been employed in its review was abuse and not gross abuse. This was based on the court's determination that a greater showing is needed for reversing an order granting motion to vacate, not because of North Shore, but rather to comply with Florida's liberal policy in favor of vacating defaults so that controversies can be decided on the merits. (6)

In Ray v. Thomson-Kernaghan & Co., 761 So. 2d 1197 (Fla. 4th DCA 2000), the Fourth District was again presented with an appeal of a denial of a motion to vacate a default. In its per curiam opinion, the court affirmed, finding no abuse of discretion. However, in a separate concurring opinion, Judge Farmer opined on the differences between gross abuse and abuse. Judge Farmer claimed that the dual standard established in the Second District Court of Appeal arose from a misreading of North Shore. (7) Judge Farmer also noted that he disagreed with the two-tiered standard of review applied in George. (8) Judge Farmer argued that North Shore was based not on the nature of the trial court's decision, but on motions to vacate as a whole, regardless of their outcome. (9) Because he distinguished abuse of discretion from gross abuse of discretion by arguing that the policy of liberality applies to trial court judges and not to appellate courts, and that appellate courts must review based on the standard of gross abuse of discretion, Judge Farmer ultimately concluded: "We should not disturb a trial judge's decision, whether it be to...