Standards of Review in Appellate Courts (continued – Section D)
D. REVIEW OF DISCRETIONARY DECISIONS
1. Decisions on matters that are within the discretion of the trial judge will not be reversed by an appellate court unless the appellant has shown an “abuse of discretion.” See Mercer v. Raine, 443 So.2d 944 (Fla. 1983).
2. “Abuse of discretion” is judged by the use of a general standard of reasonableness. In the leading decision Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980), the Florida Supreme Court stated the test as follows:
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 trail 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.
3. Examples of trial decisions that have been characterized as “discretionary” include the following:
a. Equitable Matters
(1) Issuance of Injunction. See Hatfield v. AutoNation, Inc., 939 So.2d 155 (Fla. 4th DCA 2006).
If the injunction rests on findings of fact, however, it will be reviewed by the competent substantial evidence test. See Zeskind v. Jockey Club Condominium Apartments, Unit No. II, Inc., 468 So.2d 1021 (Fla. 3d DCA 1985).
NOTE: In Litwinczuk v. Palm Beach Cardiovascular Clinic, L.C., 939 So.2d 268 (Fla. 4th DCA 2006), the Fourth District ruled that an injunction is within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion. But to the extent such order rests on purely legal matters, an order imposing an injunction is subject to de novo review on appeal.
This same standard of review applies to motions dissolving injunctions.
(2) Family Law Decisions. Byers v. Byers, 910 So.2d 336 (Fla. 4th DCA 2005) (award of permanent or rehabilitative alimony); Oxley v. Oxley, 695 So.2d 364 (Fla. 4th DCA 1997).
NOTE: Of course, some family law decisions raise issues of law and are accordingly reviewable under the de novo standard.
b. Pretrial Procedural Issues in Civil Cases
See Kaye v. State Farm Mut. Auto Ins. Co., 985 So.2d 675 (Fla. 4th DCA 2008) (order imposing sanctions); Valliappan v. Cruz, 917 So.2d 257 (Fla. 4th DCA 2005) (grant or denial of a bifurcation); Miller & Solomon General Contractors, Inc. v. Brennan’s Glass Co., Inc., 837 So.2d 1182 (Fla. 4th DCA 2003) (order on a motion for change of venue).
c. Regulation and Control of Pretrial Discovery
Kamhi v. Waterview Towers Condominium Ass’n, Inc., 793 So.2d 1033 (Fla. 4th DCA 2001) (order prohibiting the presentation of evidence or proffer of testimony for failure to comply with discovery).
d. Course and Conduct of Trial
(1) Trial judge is in the superior position to resolve matters relating to the manner in which a trial or hearing is conducted.
(2) Selection and management of a jury. See Cook v. State, 542 So.2d 964 (Fla. 1989) (challenges to jurors for cause are reviewable by the abuse of discretion standard, but a “clear abuse” must be shown); see also Franqui v. State, 804 So.2d 1185 (Fla. 2001).
(3) Procedural issues during trial. Amador v. Amador, 796 So.2d 1212 (Fla. 3d DCA 2001) (decision to allow reopening of case).
e. Admission and Exclusion of Evidence
Thigpen v. United Parcel Services, Inc., 990 So.2d 639 (Fla. 4th DCA 2008); Gold, Vann & White, P.A. v. DeBerry By and Through DeBerry, 639 So.2d 47 (Fla. 4th DCA 1994) (scope of subject about which expert can testify); Orpe v. Carnival Corp., 909 So.2d 929 (Fla. 3d DCA 2005) (the qualifications of an expert). See also Sims v. Brown, 574 So.2d 131 (Fla. 1991) (standard of appellate review of an order on the admissibility of evidence under Section 90.403 is abuse of discretion; the trial judge has discretion to decide whether evidence is logically relevant under Section 90.403, and if so, whether the probative value outweighs any prejudicial effect); Tobin v. Leland, 804 So.2d 390 (Fla. 4th DCA 2001).
NOTE: Many evidentiary issues involve questions of law and are not discretionary — i.e., violation of a privilege or other specific provisions of the Evidence Code.
f. Decision to Grant or Deny a Motion to Vacate a Judgment Under Florida Rule of Civil Procedure 1.540
See Lehman v. Department of Revenue ex rel. Lehman, 946 So.2d 1116 (Fla. 4th DCA 2006).
g. Award of Costs to Prevailing Party in Civil Cases
Smith v. School Bd. of Palm Beach County, 981 So.2d 6 (Fla. 4th DCA 2007).
h. Attorney’s Fees Awards in Civil Cases
Current Builders of Florida, Inc. v. First Sealord Sur. Inc., 984 So.2d 526 (Fla. 4th DCA 2008).
i. New Trial Orders
(1) An order granting or denying a motion for new trial is a discretionary decision which will not be reversed absent a showing of an abuse of discretion. Thigpen v. United Parcel Services, Inc., 990 So.2d 639 (Fla. 4th DCA 2008); Perryman v. Crawford, 968 So.2d 83 (Fla. 4th DCA 2007).
(2) A stronger showing of abuse is required to overturn an order granting a new trial than is required to overturn an order denying a new trial. Castlewood Intern. Corp. v. LaFleur, 322 So.2d 520 (Fla. 1975); Frei v. Alger, 655 So.2d 1215 (Fla. 4th DCA 1995).
(3) The Florida Supreme Court has set out the following appellate standard applicable to review of an order granting a new trial:
[T]he appellate court 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.
Brown v. Estate of Stuckey, 749 So.2d 490 (Fla. 1999); Thigpen v. United Parcel Services, Inc., 990 So.2d 639 (Fla. 4th DCA 2008).
(4) If a new trial is ordered, the trial judge must give his or her best reasons which will support his or her finding that the verdict is either against the manifest weight of the evidence or influenced by consideration of matters outside the record. Appellate review is primarily limited to the reasons specified in the trial judge’s order. Cummins Alabama, Inc. v. Allbritten, 548 So.2d 258 (Fla. 1st DCA 1989).
(5) When a trial court fails to articulate specific reasons for its grant of a new trial and an appeal is taken, Florida Rule of Civil Procedure 1.530(f) provides:
[I]f such an order is appealed and does not state the specific grounds, the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting a new trial. [court’s emphasis]
Fla. R. Civ. P. 1.530(f); Keith v. Russell T. Bundy & Associates, Inc., 495 So.2d 1223 (Fla. 5th DCA 1986).
(6) Although the trial judge has discretion to grant a new trial on the ground that the verdict is contrary to the manifest weight of the evidence, that discretion is not unbridled. A verdict is against the manifest weight of the evidence if the contrary evidence is clear, obvious, and indisputable. Becker v. Williams, 652 So.2d 1182 (Fla. 4th DCA 1995).
(7) Error that is “against the manifest weight of the evidence” has been defined as error where “it is clear, obvious, and indisputable that the jury was wrong.” Harlan Bakeries, Inc. v. Snow, 884 So.2d 336 (Fla. 2d DCA 2004).
(8) A trial judge’s mere disagreement with the verdict will not support a finding that the verdict is against the manifest weight of the evidence. Becker, supra.
(9) A distinction is also made between orders granting new trials that are grounded on questions of law and orders grounded on questions of fact. The First District Court of Appeal stated in Bulkmatic Transport Co. v. Taylor, 860 So.2d 436 (Fla. 1st DCA 2003):
[I]f the ruling is grounded on a question of law, the appellate court is on the same footing as the trial judge in determining the correct law to be applied and the broad discretion rule loses much of its force and effect.
See also State Farm Mut. Auto. Ins. Co. v. Gage, 611 So.2d 39 (Fla. 4th DCA 1992).
(10) “[B]efore a complaining party may receive a new trial based on unobjected-to closing argument, the party must establish that the argument being challenged was improper, harmful, incurable, and so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial. Should the trial court find that these criteria have been established, the court must enter an order granting a new trial specifically identifying both the improper arguments of counsel and the actions of the jury resulting from those arguments. Finally, an appellate court must employ an abuse of discretion standard of review when considering the correctness of the trial court’s grant or denial of a new trial based on unobjected-to closing argument.” Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla. 2000).
NOTE: An order granting or denying a remittitur is subject to the same standards as new trials. See Hernandez v. Gisonni, 657 So.2d 33 (Fla. 4th DCA 1995); City of Hollywood v. Hogan, 986 So.2d 634 (Fla. 4th DCA 2008).
j. Summary Judgments
(1) When a motion for summary judgment has been granted, the appellate court can affirm the decision if it determines that the record poses no material issue of fact, and that as a matter of law appellant is not entitled to relief. Kempfer v. St. Johns River Water Management District, 475 So.2d 920 (Fla. 5th DCA 1985). Summary judgment must be reversed if genuine issues of material fact exist as reflected in the record. Reversal is required if the record raises the slightest doubt. Walter T. Embry, Inc. v. LaSalle Nat. Bank, 792 So.2d 567 (Fla. 4th DCA 2001).
(2) The appellate court must view every possible inference in favor of the party against whom summary judgment was granted. Santos v. Knight-Ridder, Inc., 967 So.2d 408 (Fla. 4th DCA 2007).
(3) An order simply granting a motion for summary judgment is a nonfinal, nonappealable order. To be properly appealable, the order granting such a motion must be reduced to a final summary judgment. See Cardiothoracic and Vascular Surgery, P.A. v. West Fla. Regional Medical Center, 993 So.2d 1060 (Fla. 1st DCA 2008); Collier v. Canal Ins. Co., 511 So.2d 736 (Fla. 1st DCA 1987) (denial of a motion for summary judgment is an interlocutory order and is not appealable).
(4) The Florida Supreme Court has created an exception to this rule with respect to qualified immunity cases. In Tucker v. Resha, 648 So.2d 1187 (Fla. 1994), the Florida Supreme Court held that an order denying summary judgment based on the claim of qualified immunity is subject to interlocutory review to the extent that the order turns on an issue of law. The court’s rationale was that the qualified immunity of public officials is effectively lost if the case is erroneously permitted to go to trial, and an order denying qualified immunity is effectively unreviewable on appeal from a final judgment.
In response to the Florida Supreme Court’s request in Tucker, the Appellate Rules were amended in 1996 to make such qualified immunity orders appealable, nonfinal orders. See Fla. R. App. P. 9.130(a)(3)(c)(vii).
(5) An order granting partial summary judgment is unappealable where the counts adjudicated in the order and the counts remaining are legally interrelated and involve the same transaction and parties. DeMartino v. Simat, 948 So.2d 841 (Fla. 2d DCA 2007); Jensen v. Whetstine, 985 So.2d 1218 (Fla. 1st DCA 2008). The test is whether the claims arise out of the same incident, same set of common facts, or a single transaction. The existence of different legal theories or additional facts is not the deciding factor. Perry v. Perry, 976 So.2d 1151 (Fla. 4th DCA 2008).