Raise Your Standards: A Practitioner's Guide to the Effective Use of Appellate Standards of Review.
Many litigators unknowingly lose ground before they have even filed their notice of appeal. Trial courts are well aware of the lens through which a ruling will be reviewed and their decisions are tailored to comply with the standard of review long before any appeal is taken. An effective practitioner contemplates which standard of review will apply to each legal issue in a case because doing so helps 1) identify whether an issue is worth pursuing; 2) ensure that an issue is preserved for appeal; 3) predict the way a trial court will rule on the issue; and 4) and shed light on how to persuasively frame the issue during each stage of litigation. Without a firm understanding of the standards of review, a litigant will be hard-pressed to succeed on a motion or properly develop the record for success on appeal.
Categories of Trial Court Rulings
Effective use of a standard of review is informed by the rationale behind the occasion that gave rise to the need for the standard. The standards are a judicial construct, designed to efficiently and judiciously identify and correct harmful legal error.
Essentially, all trial court rulings fall into one of three categories: 1) conclusions of law; 2) findings of fact; and 3) discretionary decisions. (2) Because trial court judges preside alone and observe the presentation of evidence, the law presumes that a trial court is in a better suited position to oversee case management, weigh evidence, resolve factual disputes, and make credibility determinations in the cases over which they preside, (3) but their decisions are not binding and do not have precedential effect over other courts or cases.
Conversely, an appellate court's primary tasks are to review the actions of a lower tribunal for "harmful" or "reversible" legal error, interpret the law, establish uniform precedent and ensure uniform application of the law throughout the state, and administer justice. (4) An appellate court does not reweigh evidence, resolve factual disputes, or make credibility determinations because appellate judges do not have the benefit of observing the presentation of evidence at trial. Instead, they review the cold, hard record on appeal, which generally consists of pleadings, court filings, transcripts, and copies of exhibits. (5) Because Florida's appellate judges sit in panels of three or more, (6) the individual power of an appellate court judge is more limited than that of a trial court judge. This limitation reduces the potential for error and allows for appellate court decisions to have binding, precedential effect over lower courts.
The Relationship Between Trial Court Rulings and Appellate Standards of Review
There are only three categories of trial court rulings and just a handful of the most common standards of review that apply in civil proceedings. (7) Each category confers upon the trial court a lesser or higher degree of judgment. The level of deference paid by the appellate court is in direct proportion to the level of judgment conferred upon the trial court. Despite a body of well-settled law on each standard, the applicable standard is not always apparent or clear. (8) There may be many iterations of just one standard. It may be difficult to distinguish between a question of law and a question of fact, or the nature of the trial court ruling may be mixed. As a result, there are times when it is appropriate for the parties to disagree as to the applicable standard, or even one iteration of the standard, and to present persuasive argument to the court as to why one standard or another should apply. (9) To ignore an unfavorable standard will only cause the party to lose the opportunity to persuade the court to apply a more favorable standard, or to provide the court with an analysis of the legal issue through the appropriate lens. (10)
As discussed more fully below, to successfully navigate through murky legal issues in which the standard is unclear, it is critically important that a litigant understand the theory behind each category and standard to effectively identify and apply the correct standard.
The Most Common Appellate Standards of Review in Civil Cases
In civil cases, an appellate issue may be reviewed under one of the following most common appellate standards of review (or any combination thereof): 1) de novo; 2) competent, substantial evidence; 3) abuse of discretion; 4) harmless error; or 5) the Tipsy Coachman doctrine. (11)
Standards of review serve a number of important functions. Aside from their analytical value, they have practical value as well. Florida law requires that practitioners include in their appellate briefs "[a]rgument with regard to each issue, with citation to appropriate authorities, and including the applicable appellate standard of review." (12) The Florida Supreme Court has underscored the importance and function of the standards of review in appellate proceedings:
An appellate court's first obligation when reviewing a lower court's decision is to articulate its standard of review--i.e., its criterion for assessing the validity of the lower court's ruling. This requirement serves two functions: it informs the parties of the extent of the review and, most important, reminds the appellate court of the limitations placed on its own authority by the appellate process.... Application of the wrong standard of review may tilt the appellate playing field and irreparably prejudice a party's rights. (13)
As a result, a litigant increases the chance for success by clearly stating the standard and weaving it through each argument. To do so, a litigant must be able to correctly identify the applicable standard of review.
* Conclusions of Law are Subject to De Novo Review--Conclusions of law are subject to the furthest-reaching standard of review for an appellate court, "de novo" review, which is a Latin expression that means "of new" or "from the beginning," and expands the appellate court's review of the issue as if it was seeing it for the first time. A question of law does not place a trial court in a superior vantage point, as the question does not turn on the evaluation of evidence. (14) An appellate court is equally as capable to render a decision on the question of law.
Most commonly, de novo review applies in cases involving questions of law arising from undisputed facts because the legal issue presented by the evidence is essentially a question of law. (15) A primary example is that Florida's appellate courts review a ruling on a motion to dismiss for failure to state a claim de novo. (16) The ruling is limited to the four corners of the complaint and attachments, if any, and must assume all facts alleged in the complaint are true. (17) By design, this type of motion tests the legal sufficiency of a claim, but does not determine issues of ultimate fact or whether the claim will prevail. A trial court will not grant such a motion in haste because it must determine that it cannot be said that the complaint states a cause of action, (18) and Florida law favors liberal amendment of pleadings, (19) so that controversies may be decided on the merits. (20)
A few other obvious examples of issues to which de novo review applies are appellate issues pertaining to a trial court's interpretation of a contract. (21) This is because the terms of the contract and application of the law remain the same, regardless of the facts or evidence presented. For the same reason, de novo review applies to cases involving statutory interpretation, (22) the grant of a dispositive motion such as motion for judgment as a matter of law or directed verdict, or motion for summary judgment, (23) or governing a punitive damages amendment. (24) In such instances, the focus of the inquiry is whether there was a genuine or disputed issue of fact and whether the trial court applied the correct rule of law, but does not require an actual resolution on the disputed issue of fact, if any. (25) Evidentiary questions that do not require a factual inquiry may also be reviewed under this standard. (26)
De novo review presents a rare opportunity for an appellant to have a second chance at redemption on the precise issue raised below and is the most favorable standard for an appellant seeking reversal. An appellant should frame the ruling on appeal as a mistake of law, which presents the path of least resistance for reversal.
Yet, it strikes fear into the heart of an appellee who seeks an affirmance. An appellee should vigorously defend the trial court's ruling and consider whether a colorable argument to advocate for a more stringent standard of review exists.
* Findings of Fact are Reviewed for Competent, Substantial Evidence --A trial court's findings of fact are cloaked in a presumption of correctness and reviewed for whether they are supported by competent substantial evidence. (27) A ruling will not be disturbed when there is record evidence to permit a rational trier of fact to reach the conclusion that was drawn. Because the assignment of the weight given to the evidence or credibility of the witnesses rests soundly within the province of the finder of fact, an appellate court does not decide whether to accept or reject evidence, as a matter of law. (28)
An appellant will need to show that there is no credible evidence to support the complained-of factual finding, and must convince the court that the findings lack any rational connection to the record or that the weight of the evidence renders a finding wrong. Such circumstances are rare. This lenient standard pays substantial deference to the lower court's ruling. (29)
* Mixed Conclusions of Law and Findings of Fact--Certain legal issues present both a question of law and a question of fact. In such instances, an appellate court will review a ruling that involves a mixed question of law and fact under both de novo review and for competent substantial evidence or an abuse of discretion. (30) The trial court's ruling on a question of law is subject to de novo review. Meanwhile its ruling on a question of fact is reviewed for competent substantial evidence.
Issues pertaining to contract interpretation often involve mixed questions of law and fact. For example, a trial court's ruling on a motion to compel arbitration presents mixed questions of law and fact. (31) The trial court must resolve questions of fact as to whether there is the existence of a valid arbitration agreement, an arbitrable issue, and whether the issue was waived. (32) Yet, the ultimate ruling under this inquiry also necessarily involves the interpretation of a contract, which presents a matter of law. (33) For the same reasons, review of a trial court's ruling as to an award of attorneys' fees and costs is also subject to this mixed standard. (34)
An appellee should either persuade the appellate court that the ruling is subject to a more stringent standard of review, or, alternatively, demonstrate why the trial court's ruling on the matter of law was correct and rebut the existence or absence of evidence asserted by appellant.
* Discretionary Decisions Are Reviewed for an Abuse of Discretion--The abuse of discretion standard is the most deferential standard with respect to the trial court's ruling. "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." (35) This is an incredibly difficult standard to overcome, and the discretionary ruling of the trial judge should be disturbed only when the decision fails to satisfy this test of reasonableness, which provides: "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." (36) Under this standard, a trial court's ruling will be upheld unless the "judicial action is arbitrary, fanciful, or unreasonable ... discretion is abused only where no reasonable person would take the view adopted by the trial court." (37)
Discretionary decisions usually involve decisions regarding procedure, evidence, or equity, and resultantly, the abuse of discretion standard applies largely to procedural matters, rulings on the admissibility of evidence, and matters sounding in equity. Procedural vehicles for relief are reviewed under this standard. For example, when reviewing a trial court's grant of a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. (38) Orders awarding attorneys' fees as a sanction for raising frivolous claims or defenses are reviewed for an abuse of discretion. (39) An appellate court will employ an abuse of discretion standard when it reviews a trial court ruling regarding jury selection (40) or the admissibility of evidence. (41)
Appellate courts look at different circumstances, such as poor decision-making processes, consideration of factors that should not have been considered, or the failure to consider facts that should have been considered, (42) in determining whether a trial court abused its discretion. Discretion by the trial judge to decide a matter in a different manner than an appellate judge is not enough to demonstrate an abuse of discretion. (43)
This standard is the most difficult for an appellant to overcome. An appellant should carefully consider whether to raise issues subject to this standard or advocate for a different standard when appropriate. This standard is the most favorable for an appellee, and an appellee should be sure to highlight this standard.
Judicial Efficiency and Standards to Affirm in the Face of Error
Not all legal error is created equal. Florida's courts recognize that a party is entitled to a fair trial but not a perfect one. (44) As such, an appellate court evaluates on a case-by-case basis whether it should correct or decline to correct an error in the underlying proceedings. (45) Even if it determines that the trial court erred in reaching a conclusion of law, finding of fact, or discretionary decision, if it concludes the error was harmless (46) or the right result was reached, an appellate court may still affirm the trial court's erroneous ruling. The rationale is simple and centers on judicial efficiency: It would be inefficient and impractical to permit reversal in every case in which error can be found. Nearly every case contains error, so the law distinguishes between those errors that are "harmless (47) and those that are harmful or reversible.
* Harmless Error--In Florida, an appellate court may decline to correct legal error and affirm a trial court's erroneous ruling when the error is harmless. Practitioners have often confused this standard because the statutory language and black-letter law articulate two differing iterations for the same test. Florida's legislature has the power to enact statutes, and as such, enacted Florida's harmless error statute. The statutory framework provides that "[n]o judgment shall be set aside or revered, or new trial granted by any court of the state in any cause ... Unless ... after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice." (48)
However, the Florida Supreme Court retains the "inherent authority to determine when an error is harmless and the analysis to be used in making the determination." (49) The court has rejected the "miscarriage of justice" standard, and instead requires "the beneficiary of the error [has the burden] to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." (50) The Florida Supreme Court test prevails in both criminal and civil appeals and is the standard applied to determine whether an error is harmless.
From a practical standpoint, an appellate court will not waste limited judicial time and resources to reverse an erroneous trial court decision that did not contribute to the verdict. Harmless error makes it more difficult for an appellant to obtain a reversal, because it acts as an additional filter. Simply stated, even if an appellant is able to demonstrate error in a trial court ruling the appellant will likely also need to demonstrate that the error was not harmless. In contrast, an appellee will want to emphasize that any error was harmless.
* The Tipsy Coachman Doctrine --The Tipsy Coachman doctrine first appeared in the 1879 opinion of the Georgia Supreme Court in Lee v. Porter, 63 Ga. 345 (1879), which states that if the trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis that would support the judgment in the record. Nearly eight decades later, Florida adopted this doctrine in Carraway v. Armour & Co., 156 So. 2d 494 (1963). The "key to the application of this doctrine of appellate efficiency is that there must have been support for the alternative theory or principle of law in the record before the trial court." (51) Thus, if a trial decision is right for the wrong reason, it may be affirmed on appeal when the theory or legal principle is supported by the record. (52)
Litigators should familiarize themselves with the interplay between the categories of trial court rulings and standards of appellate review. The relationships between each serve as valuable guideposts when evaluating legal issues, preserving an issue for appeal and developing the record, predicting a ruling, or framing an issue on appeal. Effective practitioners are familiar with and contemplate which standard of review will apply to each legal issue to maximize the potential for success.
(1) This article serves as a primer for the everyday litigator on the most common appellate standards of review in civil cases. Practitioners are duty bound to "disclose to a tribunal a legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel." Rule Reg. Fla. Bar 4-3.3. Nothing in this article should be construed to suggest that any practitioner is absolved of that duty. Further, this article does not address the different standards of review that may apply to legal issues in criminal, family law, administrative matters, or the tests applied to writ petitions in original jurisdiction proceedings.
(2) Harvey J. Sepler, Appellate Standards of Review, Florida Appellate Practice CLE 6, [section]6.2 (10th ed. 2017).
(3) Certain technological advances beg the question whether standards of review may one day change as new technological advances provide appellate courts with the ability to see the evidence from the same vantage point as the trial court.
(4) See Bruno v. State, 807 So. 2d 55 (Fla. 2001); City of Coral Gables v. State ex rel. Hassenteufel, 38 So. 2d 467 (Fla. 1948); Pennsylvania Ins. Guar. Ass'n v. Sikes, 590 So. 2d 1051 (Fla. 3d DCA 1991); see also Philip J. Padavano, Florida Appellate Practice [section]7:1 (2017 ed.).
(5) See Jacob v. Henderson, 840 So. 2d 1167 (Fla. 2d DCA 2003); Axelrod v. Dep't of Children and Family Servs., 799 So. 2d 1103 (Fla. 4th DCA 2001); Monroe v. State, 191 So. 3d 395 (Fla. 2016).
(6) The Florida Supreme Court consists of seven justices: five are required for a quorum and four are required for a majority. Fla. Const. art. V, [section]3(a). Each of the five district courts of appeal consist of at least three judges and at least three judges are required to consider each case. Fla. Const. art. V, [section]4(a).
(7) There are numerous standards of review, as well as iterations of each of those standards. However, this article acts as a primer and discusses only those that are the most common to provide a foundational understanding of the relationship between trial court rulings and appellate standards of review.
(8) The U.S. Supreme Court has recognized the "vexatious nature" of distinguishing between a question of fact and question of law. See, e.g., Pullman-Standard v. Swint, 456 U.S. 273, 288 (1982); Baumgartner v. United States, 322 U.S. 665, 671 (1944).
(9) See Parts & Elec. Motors, Inc. v. Sterling Elec., Inc., 866 F.2d 228, 233 (7th Cir. 1988); Sierra Fria Corp. v. Donald J. Evans, P.C., 127 F.3d 175, 181 (1st Cir. 1997); Tolbert v. Page, 182 F.3d 677, 682 (9th Cir. 1999).
(10) Michael R. Fontham, et al., Persuasive Written and Oral Advocacy 274 (2002). "Hiding the standard is a prescription for defeat, because the court will surely find and apply it."
(11) This article does not address fundamental error, which is an exception to the preservation requirement is rarely found in civil proceedings.
(12) Practitioners should be mindful that Fla. R. App. P. 9.210(b)(5) expressly requires inclusion of the standard of review in appellate briefs.
(13) North Fla. Women's Health & Counseling Servs., Inc. v. State, 866 So. 2d 612, 626 (Fla. 2003); see also Fla. R. App. P. 9.120(b) (5).
(14) Florida Dept. of Revenue v. New Sea Escape Cruises, Ltd., 894 So. 2d 954, 957 (Fla. 2005); Florida Power & Light Co. v. Hayes, 122 So. 3d 408, 411 (Fla. 4th DCA 2013).
(15) Town of Palm Beach v. Palm Beach Cnty., 460 So. 2d 879 (Fla. 1984); Bradley v. Waldrop, 611 So. 2d 31 (Fla. 1st DCA 1992).
(16) Bell v. Indian River Mem'l Hosp., 778 So. 2d 1030, 1032 (Fla. 4th DCA 2001).
(17) United Auto Ins. Co. v. Law Offices of Michael I. Libman, 46 So. 3d 1101, 1003 (Fla. 3d DCA 2010).
(18) Fla. R. Civ. P. 1.061 ("Orders granting or denying dismissal for forum non conveniens are subject to ... an abuse-of-discretion standard."); see also Kinney System, Inc. v. Continental Ins. Co., 674 So. 2d 86 (Fla. 1996).
(19) Rulings on the amendment of pleadings are subject to an abuse of discretion standard. See Carib Ocean Shipping, Inc. v. Armas, 54 So. 2d 234 (Fla. 3d DCA 2003).
(20) See Fla. R. Civ. P. 1.190.
(21) Hayes, 122 So. 3d 408, 411 (Fla. 4th DCA 2013); Reilly v. Reilly, 94 So. 3d 693, 697 (Fla. 4th DCA 2012).
(22) New Sea Escape Cruises, Ltd., 894 So. 2d at 957.
(23) Bell, 778 So. 2d at 1032.
(24) Varnedore v. Copeland, 210 So. 3d 741, 748 (Fla. 5th DCA 2017) (citing In Estate of Despain v. Avante Group, Inc., 900 So. 2d 637, 642-44 (Fla. 5th DCA 2005)).
(25) Sepler, Appellate Standards of Review [section]6.4 (citing Moore v. Morris, 475 So. 2d 666 (Fla. 1985)).
(26) Id. (citing Burkey v. State, 922 So. 2d 1033, 1035 (Fla. 4th DCA 2006)).
(27) Sarasota Citizens for Responsible Gov't v. City of Sarasota, 48 So. 3d 755 (Fla. 2010); Liner v. Workers Temporary Staffing, Inc., 990 So. 2d 473 (Fla. 2008).
(28) Evans v. Thornton, 898 So. 2d 151 (Fla. 4th DCA 2005); Southwin, Inc. v. Verde, 806 So. 2d 586 (Fla. 3d DCA 2002).
(29) State Trust Realty, 207 So. 3d 923 (Fla. 4th DCA 2016); City of Cocoa v. Leffler, 803 So. 2d 869 (Fla. 5th DCA 2002).
(30) Berlin v. Pecora, 968 So. 2d 47, 50 (Fla. 4th DCA 2007) (quoting Jockey Club, Inc. v. Stern, 408 So. 2d 854, 855 (Fla. 3d DCA 1982)).
(31) Kendall Imports, LLC v. Diaz, 215 So. 3d 95, 98-99 (Fla. 3d DCA 2017), reh'g den. (Mar. 30, 2017), review den., No. SC17-792, 2017 WL 4161247 (Fla. Sept. 20, 2017).
(34) Webber for Keitel v. DAgostino, No. 4D17-3007, 2018 WL 3301892, at *1 (Fla. 4th DCA 2018) (citing Klinow v. Island Court at Boca W. Prop. Owners' Ass'n, Inc., 64 So. 3d 177, 180 (Fla. 4th DCA 2011)).
(35) Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980).
(37) Trease v. State, 768 So. 2d 1050, 1053 n.2 (Fla. 2000).
(38) Brown v. Estate of Stuckey, 749 So. 2d 490, 497-98 (Fla. 1999).
(39) Jean-Pierre v. Glaberman, 192 So. 2d 613, 613 (Fla. 4th DCA 2016) (quoting Lago v. Kame By Design, LLC, 120 So. 3d 73, 74 (Fla. 4th DCA 2013)).
(40) Schofield v. Carnival Cruise Lines, Inc., 461 So. 2d 152 (Fla. 3d DCA 1984); and Barrios v. Locastro, 166 So. 3d 863 (Fla. 4th DCA 2015), review den., 182 So. 3d 633 (Fla. 2015).
(41) See Knight v. State, 15 So. 3d 936, 938 (Fla. 3d DCA 2009). A ruling on the admissibility of evidence is distinguishable from application of the evidence code--an alleged error in applying the rules of evidence or on whether certain evidence constitutes hearsay will be reviewed de novo because both are questions of law. Likewise, a decision to certify a class is subject to this standard because a determination of whether certification is appropriate typically involves multifactorial analysis that requires certain discretionary calls by the trial court. See Sosa v. Safeway Premium Finance Co., 73 So. 3d 91 (Fla. 2011) (certification does not involve the merits of the cause of action); Adiel v. Electronic Financial Systems, Inc., 513 So. 2d 1347 (Fla. 3d DCA 1987); Morgan v. Coats, 33 So. 3d 59 (Fla. 2d DCA 2010).
(42) Steven Alan Childress & Martha S. Davis, 1 Federal Standards of Review, note 27, [section]4.01(3) at 4, 12-15 (4th ed. 2010).
(44) U.S. v. Lutwak, 344 U.S. 604, 619 (1953); see generally Brunell v. State, 456 So. 2d 1324, 1324 (Fla. 4th DCA 1984); Vedder v. State, 313 So. 2d 49, 50 (Fla. 3d DCA 1975); Farnell v. State, 214 So. 2d 753, 759 (Fla. 2d DCA 1968).
(45) Special v. West Boca Medical Center, 160 So. 3d 1251, 1257 (Fla. 2014). "The test acts in a manner so as to conserve judicial resources while protecting the integrity of the process."
(46) See Id. at 1256-57; State v. Diguilio, 491 So. 2d 1129 (Fla. 1986).
(47) Special, 160 So. 3d at 1251, 1256-57.
(48) Fla. Stat. [section]59.041 (emphasis added).
(49) Goodwin v. State, 751 So. 2d 537, 546 (Fla. 1999).
(50) Special, 160 So. 3d at 1256 ("[T]his test is consistent with the harmless error rule codified in section 59.041 because it "focus[es] on the effect of the error on the trier-of-fact," "strikes the proper balance between the parties," and "strikes the appropriate balance between the need for finality and the integrity of the judicial process."); see, e.g., Diguilio, 491 So. 2d at 1135.
(51) Robertson v. State, 829 So. 2d 901, 906-907 (Fla. 2002).
(52) James A. Herb & Jay L. Kauffman, Tales of the Tipsy Coachman: Being Right for the Wrong Reason--The Tipsy Coachman is Alive and Well and Living in Florida, 81 Fla. Bar J. 36 (Dec. 2007).
RACHEL A. CANFIELD is a judicial law clerk for Judge Thomas Logue of the Third District Court of Appeal. She has practiced in Miami and served as a judicial law clerk for Justice James E.C. Perry and judicial intern for Justice Jorge Labarga of the Florida Supreme Court.
Peter Abraham, a student at St. Thomas University School of Law, assisted with writing this article.
This column is submitted on behalf of the Appellate Practice Section, Sarah Lahlou-Amine, chair, and Thomas Seider, editor.
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|Title Annotation:||Appellate Practice|
|Publication:||Florida Bar Journal|
|Date:||Nov 1, 2018|
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