by Robin Bresky, Esq., and Randall Burks, Esq.
*This article will be published in the Winter 2016 issue of The Advocate of the South Palm Beach County Bar Association.
When appellate lawyers contemplate pursuing or defending against an appeal, one of the first considerations is the standard of review, which determines the criteria the appellate court will use to evaluate the order and the level of deference given to the lower tribunal’s rulings. There is an inverse relationship between the level of deference and the likelihood of reversal on appeal. If the order is reviewed with a high degree of deference, it can be difficult to show that the order should be reversed. This article addresses the most common standards of review in civil appeals.
For Conclusions of Law.– Appellants want the appellate court to reverse the lower tribunal’s order or judgment. Their favorite standard of review is “de novo,” where the appellate court is on the same footing as the lower tribunal as to pure matters of law. Some common examples of issues reviewed de novo include summary judgment, dismissal of a complaint, and the interpretation of a statute or contract. A court’s application of the law to the facts also presents an issue of law reviewed de novo. See Connor v. State, 803 So. 2d 598, 608 (Fla. 2001). Legal issues are reviewed anew without deference to the trial court’s conclusions even though the conclusions are presumed to be correct.
For Discretionary Rulings.– The appellate court gives a high degree of deference to a lower tribunal’s rulings based on the judge’s discretion. Common examples include rulings on procedural, evidentiary, and equitable issues. The appellate court usually will not find an abuse of discretion if reasonable people could differ as to the propriety of the action taken by the trial court. Canakaris v. Canakaris, 382 So. 2d 1197, 1202-1203 (Fla. 1980). See also Cargile-Schrage v. Schrage, 908 So. 2d 528, 529 (Fla. 4th DCA 2005) (“Based on this record, we cannot say that no judge in his right mind would have [made that ruling].”). Thus, there is a lower likelihood of obtaining reversal of discretionary rulings than issues of law.
For Findings of Fact.– Appellate courts defer to the lower tribunal’s findings of fact when they are based on competent, substantial evidence. Thorpe v. Myers, 67 So. 3d 338, 343 (Fla. 2d DCA 2011). The evidence that the finder of fact relies upon to sustain the ultimate finding must be relevant and material enough that a reasonable mind would accept it as adequate to support the conclusion reached. De Groot v. Sheffield, 95 So. 2d 912, 916 (Fla. 1957). Reversal is appropriate when the evidence presented does not support the lower tribunal’s findings; and the appellate court is “not required to disregard record evidence that disproves the lower court’s findings or that reveals its ruling to be an abuse of discretion.” Thorpe, So. 3d at 341-42 (citation and internal quotes omitted).
“A finding which rests on conclusions drawn from undisputed evidence, rather than on conflicts in the testimony, does not carry with it the same conclusiveness as a finding resting on probative disputed facts, but is rather in the nature of a legal conclusion.” Holland v. Gross, 89 So. 2d 255, 258 (Fla. 1956). Because the trial court is in a unique position to evaluate and weigh the testimony and evidence based upon its observation of the bearing and the demeanor and credibility of the witnesses, when the trial court has “reconcile[d] the conflicting evidence[,] … the appellate court is not authorized to reverse unless [the] findings are clearly erroneous.” Federated Dep’t Stores, Inc. v. Planes, 305 So. 2d 248, 248-249 (Fla. 3d DCA 1974). A factual finding is not clearly erroneous unless the appellate court is left with a definite and firm conviction that the trial court has made a mistake. Seminole Tribe of Fla. v. Department of Children & Families, 959 So. 2d 761, 765 (Fla. 4th DCA 2007) (citation omitted).
Mixed Standards of Review
Some issues will involve a mixed standard of review because some of the trial court’s rulings involve a mixed question of law and fact or equity and discretion. For example, the appellate court employs a mixed standard of review for evalution of relocation determinations in family law. It “reviews relocation determinations for abuse of discretion; however, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo,” while “[u]ltimately, the concern in a relocation determination is whether the relocation is in the best interests of the child.” Vaelizadeh v. Hossaini, 174 So. 3d 579, 582 (Fla. 4th DCA 2015) (internal quotes and citations omitted).
As another example, a mixed standard of review involving a combination of all of the three common standards applies to a trial court’s decision concerning whether or not cohabitation has been established for purposes of terminating alimony. “Review of the trial court’s factual findings is limited to determining whether they are supported by competent, substantial evidence. [citation] However, our review of the trial court’s construction of the term ‘cohabitation’ and its legal conclusions regarding whether cohabitation has been established is de novo. [citations] Upon a determination that cohabitation has been established, our review of the trial court’s decision to reduce or to terminate alimony is for abuse of discretion.” Atkinson v. Atkinson, 157 So. 3d 473, 478 (Fla. 2d DCA 2015).
Various other mixed standards of review apply in certain cases, such as the mixed standard of review for a court’s final ruling of dependency, which is “a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record,” C.A. v. Dep’t of Children & Families, 958 So. 2d 554, 557 (Fla. 4th DCA 2007); and the mixed standard of review in an appeal of a judgment adopting a magistrate’s report and recommendation in a civil suit is: “The trial court’s legal conclusion[s are] reviewed de novo, but its findings of fact are presumed correct and can be reversed only if not supported by competent substantial evidence.” Pages v. Seliman-Tapia, 134 So. 3d 536, 538 (Fla. 3d DCA 2014). See also Seminole Tribe of Fla., supra, 959 So. 2d at 765 (using a hybrid standard of review based on a description found in an Alaska case).
The Second District recently warned: “A ‘mixed’ standard of review is not an invitation for lawyers and judges to engage in mixed-up logic. It is usually employed when the function the trial court is performing requires that court to apply a rule of law to a set of facts that are not undisputed. The trial court’s decision occurs essentially at the logical intersection between a finding of the facts and a decision as to the legal outcome of the issue that is dependent upon those facts.” Jarrard v. Jarrard, 157 So. 3d 332, 337 (Fla. 2d DCA 2015) (footnote omitted).
Which Standard Applies?
Appellate briefs must include “argument with regard to each issue, with citation to appropriate authorities, and including the applicable appellate standard of review.” Fla. R. App. P. Rule 9.210(b)(5). One of the three common standards of review will usually apply to most appellate issues, although some issues may involve a specialized standard of review. See, e.g. Kingsley v. Kingsley, 623 So. 2d 780, 787 (Fla. 5th Dist. 1993) (“because the standard of proof [of child abandonment and neglect] below was clear and convincing evidence, this court may not overturn the trial court’s findings unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing.”).
Legal research will reveal which standard of review applies to a given issue, although appellate lawyers sometimes argue extensively over which standard of review should apply. “[T]he correct standard of review is typically determined by the ‘nature of the adjudication’ or the function that the trial court is performing at the time of the alleged error. It is rarely determined by the topic or area of law in which the decision making occurs.” Jarrard, 157 So. 3d at 337 (citation omitted).
Appellants should remember that the favorable de novo standard may sometimes apply in an area where the deferential “abuse of discretion” standard is normally deemed to apply. For instance, the general rule is that “orders on attorney’s fees [are reviewed] for an abuse of discretion.” Glantz & Glantz, P.A. v. Chinchilla, 17 So. 3d 711, 713 (Fla. 4th DCA 2009). There is an exception, however, for review of attorney’s fees orders that are based on interpretation of a statute or contract. To the extent the award or the denial of a motion for fees was based on an erroneous interpretation of the statute or contract, the standard of review is de novo, which applies to a court’s determination as to whether a party is entitled to attorney’s fees under a legal provision. Iannuzzelli v. Lovett, 981 So. 2d 557, 559 (Fla. 3d DCA 2008); Winn-Dixie Stores, Inc. v. Reddick, 954 So. 2d 723, 731 (Fla. 1st DCA 2007). In that situation, the “abuse of discretion” standard does not apply because the trial court made a legal ruling rather than exercise discretion when it based an award or denial of attorney’s fees on its reading of a statute. Under this de novo standard, it may be easier to obtain a reversal because no deference is given to the legal conclusions of the lower court. See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003).
The rules require informing the appellate court of the standard of review. It is also important to determine the standard of review when evaluating whether to take an appeal and how to craft the argument once the appeal is under way. Additionally, trial lawyers should think about the standard of review that will apply in an eventual appeal when drafting dispositive trial court motions, and it can be helpful to state the standard of review in the motion or response. Determining the applicable standard will often require legal research, but it is important to get it right because the standard of review defines the parameters for the appellate court’s analysis and affects the level of deference given to the lower tribunal’s decision and the likelihood of obtaining a reversal.