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

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 grant or deny relief, unless there is an abuse of discretion and it is marked and extreme." (10)

Perhaps when there was hope that the Fourth District was on the verge of clarifying which standard of review to apply regarding motions to vacate a default, the decision in Lloyd's Underwriter's at London v. Ruby, Inc., 801 So. 2d 138 (Fla. 4th DCA 2001), revived the perplexing dual standard. In Lloyd's, the court again acknowledged that a greater standard, requiring a finding of gross abuse of discretion, was needed when reviewing an order granting a motion to set aside a default, while the lesser abuse of discretion standard was required when reviewing a denial of a motion to set aside a default.

There seems to be less debate in the Third, First, and Fifth districts. Contrary to the Second and Fourth districts, the Third District seems to have consistently applied only the gross abuse of discretion standard when reviewing an order on a motion to set aside default, regardless of whether the order was granted or denied. (11) The same consistency can be found in both the First and Fifth districts, most likely due to a strict adherence to North Shore. (12)

Canakaris v. Canakaris: A Definition is Born

In 1980, the Florida Supreme Court decided Canakaris v. Canakaris, which should be read to clarify, once and for all, what Justice Anstead has considered case law in a "hopeless state of confusion." (13) In Canakaris, the Supreme Court stated:

In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the "reasonableness" test to determine whether the trial judge abused his discretion. 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. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. (14)

Since Canakaris, the Florida Supreme Court has consistently applied the abuse of discretion standard based on the reasonableness test to appellate review cases of various natures. (15)

Unlike the Florida Supreme Court, the district courts of appeal appear to have interpreted Canakaris as affording the option to impose either the abuse or gross abuse standard. For example, both the Third and Fourth district courts of appeal have applied the gross abuse standard for review of venue issues. (16) Yet, throughout the districts, the abuse of discretion standard has been applied to a variety of cases ranging from motions granting a continuance to orders to pay attorneys' fees to review of a denial of a motion to bifurcate issues. (17)

Struggling to Make Sense of It All

The struggle to make sense of the complicated case law regarding the abuse or gross abuse standard is not a new one. In fact, it goes back at least two decades. In 1981, Justice

Anstead noted:

In the first instance trial courts are advised that they should follow a policy of liberality in exercising their discretion to vacate default judgments. On the other hand appellate courts are advised that they must find a gross abuse of discretion by the trial court before disturbing its ruling on a motion to vacate. Both of these principles are set out in the case of North Shore Hospital, Inc. v. Barber, 143 So. 2d 849 (Fla. 1962), the case most frequently cited in subsequent appellate opinions on this subject. Most appellate courts are naturally reluctant to announce that a trial court has "grossly" abused its discretion even though it may be clear that the trial court did not apply a policy of "liberality" in considering the motion to vacate. Hence, there is a great deal of straining apparent in appellate opinions holding that the trial court erred in refusing to set aside a default. (18)

More recently, courts have shown a greater frustration with the distinction. In Emmer v. Brucato, 813 So. 2d 264, 265 n.1 (Fla. 5th DCA 2002), the Fifth District stated,

We use the gross abuse of discretion standard because that is the standard the Florida Supreme Court adopted in North Shore Hospital Inc. v. Barber, 143 So. 2d 849 (Fla. 1962). It is, however, unclear to us the difference between 'gross abuse of discretion' and 'abuse of discretion,' although some courts have recognized, though not defined, a difference.

The court went on to state:

In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980), the supreme court defined abuse of discretion.... [I]if an abuse of discretion is an action by the trial court that no reasonable judge would take, what then is a "gross" abuse of discretion? Is it an action that only an extremely unreasonable judge would take? We suspect that the one and only standard is abuse of discretion, and that the supreme court's use of the word "gross" was merely surplusage.

A recent Second District case articulated the confusion regarding the difference between gross abuse and abuse when the court stated, "The troublesome nature of our review here is the admittedly high 'gross abuse of discretion' standard.... However, we have no definition of what a 'gross' abuse of discretion includes or how it differs from an abuse of discretion. We can only assume that it is more egregious than a typical abuse of discretion." (19)

The most in-depth attempt to probe the confusion of the abuse and gross abuse standards appears to be found in Ray, (20) briefly discussed above. Judge Farmer, concurring specially, began his analysis by stating humorously: "The issue in this appeal is that old friend of the appellate courts in Florida--whether a trial judge grossly abused discretion in vacating or refusing to vacate a default." (21) Judge Farmer disagreed that there should be any form of "greater circumspection" for any motion to vacate default cases, and therefore he explicitly disagreed with the two-tiered standard applied by the Second District Court of Appeal and by his own court in George. (22) Judge Farmer believed that the liberality principle and the gross abuse standard could be reconciled without adopting multiple standards of review. He concluded:

The liberality principle is directed to trial judges as a rule guiding their discretion, not to appellate judges as a standard of review. It directs the trial judge to grant the relief when the circumstances do not point clearly in one direction and the issue is in doubt. After the trial judge makes the decision, however, and the issue is raised on appeal, a court of appeal is directed not to apply the liberality principle itself (for the trial judge has already done that or failed to do so) but instead to review the decision granting or denying the relief from the standpoint of gross abuse of discretion. (23)

Other States' Approaches to Clarification

In 1999, the Supreme Court of Colorado noted that a survey of Colorado case law revealed that the abuse of discretion standard had been stated several different ways in the context of reviewing a trial court's discretionary ruling. (24) In acknowledging that the use of "such modifiers results in confusion," the court held a single standard of review existed and stated:

The use of these modifiers creates the appearance of inconsistency and unfairness. This is particularly true here, where the specially concurring judge voted to affirm the convictions because she found no gross abuse of discretion, yet she also found that the trial court's ruling was "precipitously close to requiring reversal." [citation omitted] This raises the unfortunate implication that this judge might have reached a different result by applying an unmodified abuse of discretion standard. Therefore, we hold that the phrases "abuse of discretion," and "clear abuse of discretion," and "gross abuse of discretion" contained in our prior case law all have the same meaning. (25)

In a similar attempt to clarify its case law, the Pennsylvania Supreme Court held that there is no distinction between a gross abuse of discretion and an abuse of discretion. (26) The court stated,

Whether the standard is articulated as an "abuse of discretion" or as a "gross abuse of discretion," the test remains the same: whether the trial court's conclusions are unreasonable as shown by the evidence of record. Thus, we deem the use of the verbiage "gross" to be mere surplusage and we will henceforth articulate the standard as an "abuse of discretion." (27)

Perhaps the most important jurisdiction to examine would be Illinois, given that Florida seems to have relied on Illinois' use of a gross abuse of discretion standard in Greenleaf to justify applying a gross abuse of discretion to Florida cases. Interestingly, Illinois cases prior to Greenleaf do not apply a gross abuse of discretion standard, while most later Illinois cases applying the gross abuse standard can be traced back to Greenleaf. (28)

In Dunlap v. Gregory, 14 Ill. App. 601 (Ill. App. 1884), the Illinois appellate court made a significant clarification regarding the standard of review in Illinois. The court stated that despite the fact that stronger qualifying terms were used in cases such as Greenleaf, the settled rule in Illinois was that motions to set aide defaults were reviewed for an abuse of discretion. The court reaffirmed that the only standard of review was that of abuse of discretion, regardless of what adjectives were applied in front of the term "abuse" for emphasis.

If this language is taken at face value, then there never was a gross abuse of discretion standard in Illinois. This holding may have important implications for the application of a gross abuse of discretion standard in Florida. As mentioned previously, Russ relied on Greenleaf for its use of a gross abuse standard. Also, the two cases relied on by North Shore for its application of the gross abuse of discretion standard, Coggin and Benedict, both relied on Russ as well. If there never was a gross abuse of discretion standard in Illinois, then the establishment of the gross abuse of discretion standard in Florida based on the Illinois precedent may be flawed.

Elimination of Gross Abuse Standard

A review of the history of the abuse and gross abuse of discretion case law demonstrates just how convoluted this topic has become since its inception. The district courts have not been able to establish a workable test to explain when the use of one standard should be applied over the other. Therefore, some district courts have chosen to interpret the law as creating a two-tiered standard, applying gross abuse in certain circumstances and abuse of discretion in others, while other courts have followed a stricter adherence to one standard or the other. As a result, there is confusion within the district courts as to the applicable standard of review.

The lack of consensus as to which standard to apply and the existence of a dual standard in some courts create the appearance of inconsistency and unfairness. (29) Certain legal issues, such as setting aside defaults, involve public policies that favor or encourage one judicial ruling over another. In such cases, gross abuse of discretion should not be used to review one outcome and abuse of discretion another. The truth is that it is likely easier to abuse discretion by a ruling that is contrary to the outcome favored by the public policies. This may well be all that the Florida Supreme Court and the Second District intended to explain in North Shore, Garcia, and Marshall Davis.

Despite its use of gross abuse in North Shore, the Florida Supreme Court explained definitively the meaning of the abuse of discretion standard in Canakaris and since that date has applied only an abuse of discretion standard of review. As a result of the Canakaris "no reasonable person" definition, it is now difficult or impossible to provide a useful definition of "gross abuse of discretion."

The district courts should recognize Canakaris as clarifying that the standard of review is abuse of discretion and the term "gross" in North Shore was mere surplusage. The establishment of abuse of discretion as the standard of review will help eliminate the appearance of any inconsistency and unfairness that might exist as a result of the application of a dual standard. Explicit acceptance of the abuse of discretion standard as the only proper standard of review in discretionary rulings of trial courts will also better comport with public policies that favor or encourage one judicial ruling over another and ease the frustrations of appellate judges who currently have the burden of trying to decipher and apply the correct standard of review. Furthermore, if the abuse of discretion standard is applied consistently to similar situations, both practitioners and judges will have a better understanding of its underlying meaning.

(1) Russ, 19 Fla. 54 at *3 (Fla. 1882), citing Greenleaf v. Roe, 17 Ill. 474 (Ill. 1856).

(2) Marshall Davis, 558 So. 2d at 207208 (Fla. 2d D.C.A. 1990).

(3) George, 753 So. 2d at 574, citing North Shore, 143 So. 2d 849.

(4) Id. at 575.

(5) Id.

(6) Id.

(7) Ray, 761 So. 2d at 1201 (Farmer, J., concurring specially).

(8) Id.

(9) Id. at 1202.

(10) Id. at 1204.

(11) See, e.g., Cricket Club, Inc., v. Basso, 384 So. 2d 908 (Fla. 3d D.C.A. 1980); B.C. Builders Supply Co. v. Maldonado, 405 So. 2d 1345 (Fla. 3d D.C.A. 1981); B.R. Fries & Assocs., Inc. v. Meagher, 448 So. 2d 1211 (Fla. 3d D.C.A. 1984); Vassell v. Boatwright, 849 So. 2d 462 (Fla. 3d D.C.A. 2003).

(12) See, e.g., Badertscher v. Resort Interiors, 505 So. 2d 4 (Fla. 3d D.C.A. 1986); Tire Kingdom, Inc. v. Bowman, 480 So. 2d 221 (Fla. 5th D.C.A. 1985); Emmer v. Brucato, 813 So. 2d 264 (Fla. 5th D.C.A. 2002).

(13) See County Nat'l Bank of N. Miami Beach v. Sheridan, Inc., 403 So. 2d 502 (Fla. 4th D.C.A. 1981).

(14) See Canakaris, 382 So. 2d at 1203.

(15) See, e.g., Ford Motor Co. v. Kikis, 401 So. 2d 1341 (Fla. 1981); Baptist Mem'l Hosp., Inc. v. Bell, 384 So. 2d 145 (Fla. 1980); Mercer v. Raine, 443 So. 2d 944 (Fla. 1983); Booker v. State, 514 So. 2d 1079 (Fla. 1987).

(16) See Levy v. Hawk's Cay, Inc., 505 So. 2d 24 (Fla. 3d D.C.A. 1987); Hickman v. Sacino, 566 So. 2d 903 (Fla. 4th D.C.A. 1990).

(17) See Higgins v. Johnson, 422 So. 2d 16 (Fla. 2d D.C.A. 1982); Bryan v. Bryan, 442 So. 2d 362 (Fla. 1st D.C.A. 1983); Hardee Mfg. Co. v. Josey, 535 So. 2d 655 (Fla. 3d D.C.A. 1988).

(18) See County Nat'l Bank, 503 So. 2d 502.

(19) Allstate Floridian Ins. Co. v. Ronco Inventions, LLC, 890 So. 2d 300, 302 (Fla. 2d D.C.A. 2004).

(20) See Ray, 761 So. 2d 1197.

(21) Id. at 1199 (Farmer, J., concurring specially).

(22) Id. at 1202.

(23) Id,

(24) CariUo v. People, 974 P.2d 478, 485 (Colo. 1999).

(25) Id.

(26) Moore v. Moore, 634 A.2d 163, 168 (Pa. 1993).

(27) Id. at n.4.

(28) See, e.g., Rich v. Hathaway, 18 Ill. 549 (Ill. 1857); Hitchcock v. Herzer, 90 Ill. 543 (Ill. 1878); Mutual Ins. Co. v. Carnahan, 122 Ill. App. 540 (Ill. App. 1905); Eggleston v. Royal Trust Co. 68 N.E. 709 (Ill. 1903).

(29) See, e.g., Carillo, 974 P. 2d 478, 475.

Laura Whitmore is a staff attorney for Judge Chris Altenbernd of Florida's Second District Court of Appeal. Ms. Whitmore received a B.A. in 2001 from Trinity University in San Antonio, Texas, and a J.D. degree in 2004 from Indiana University School of Law.

This column is submitted on behalf of the Appellate Practice Section, John G. Crabtree, chair, and Jacqueline E. Shapiro, editor.
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Title Annotation:Florida
Author:Whitmore, Laura
Publication:Florida Bar Journal
Date:Jun 1, 2005
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