Standards of Review in the Appellate Courts
These standards of review are relied upon by the appellate courts in reviewing the different types of orders and decisions issued by the trial courts. The standards of review are as follows:
A. Presumption of Correctness
B. Review of Factual Decisions
C. Review of Legal Decisions
D. Review of Discretionary Decisions
E. Standard of Review for Petition for Certiorari
F. Standard of Review in Administrative Appeals
G. Other Principles Pertinent to Standard of Review
A. PRESUMPTION OF CORRECTNESS
1. Every judgment or decree rendered by the lower court is clothed with a presumption of correctness, and the burden rests on the complaining party to demonstrate reversible error. United American Lien and Recovery Corp. v. Primicerio, 924 So.2d 848 (Fla. 4th DCA 2006); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).
2. There is an exception to the presumption of correctness that applies when a trial judge has declared a state law unconstitutional. In such a case, the law, and not the decision under review, is presumed valid. Florida Dept. of Business and Professional Regulation v. Gulfstream Park Racing Ass’n., Inc., 967 So.2d 802 (Fla. 2007).
3. If there is no transcript of a hearing in which the trial judge determined controlling issues of fact, the appellate court must affirm the judgment under review. Bank One, Corp. v. Bornschein, 987 So.2d 172 (Fla. 4th DCA 2008).
4. While the general rule is that the appellate court must affirm in the absence of a record, the court can reverse a judgment that is fundamentally erroneous even if there is no record. See Reed v. Reed, 914 So.2d 26 (Fla. 4th DCA 2005) (error on the face of the order); Dorsett v. Dorsett, 902 So.2d 947 (Fla. 4th DCA 2005) (error on the face of the judgment).
5. It is well settled that the appellate court will affirm an order of a lower court consistent with any theory revealed by the record, regardless of the reasons stated in the order under review. See Arthur v. Milstein, 949 So.2d 1163 (Fla. 4th DCA 2007) (“tipsy coachman” doctrine permits an appellate court to affirm a trial court that reaches the right result, but for the wrong reasons, so long as there is any basis in the record which would support the judgment); Malu v. Security Nat. Ins. Co., 898 So.2d 69 (Fla. 2005) (same).
B. REVIEW OF FACTUAL DECISIONS
1. Generally, upon direct review, where the judgment or order appealed is based entirely on resolution of a factual dispute, the appellate court must affirm if the trial court’s decision is supported by competent substantial evidence. Bellino v. W & W Lumber and Bldg. Supplies, Inc., 902 So.2d 829 (Fla. 4th DCA 2005); Keystone Creations, Inc. v. City of Delray Beach, 890 So.2d 1119 (Fla. 4th DCA 2004) (trial court’s findings of fact reviewable under competent substantial evidence standard).
2. Under Florida law, the competent substantial evidence test also applies to findings of fact made by trial judges in non-jury trials. See Berlin v. Pecora, 968 So.2d 47 (Fla. 4th DCA 2007).
3. In Shaw v. Shaw, 334 So.2d 13, 16 (Fla. 1976), the Florida Supreme Court explained the application of the competent substantial evidence test to findings of fact in non-jury trials as follows:
“[I]t is not the function of the appellate court to substitute its judgment for that of the trial court through re-evaluation of the testimony and evidence from the record on appeal before it. The test…is whether the judgment of the trial court is supported by competent evidence. Subject to the appellate court’s right to reject ‘inherently incredible and improbable testimony or evidence,’ it is not the prerogative of an appellate court, upon a de novo consideration of the record, to substitute its judgment for that of the trial court…”
4. The competent substantial evidence test has also been applied in the review of trial court evidentiary hearings. See Booker v. State, 969 So.2d 186 (Fla. 2007), and in the review of administrative decisions based on findings of fact, see Leedham v. State Unemployment Appeals Com’n, 950 So.2d 475 (Fla. 4th DCA 2007).NOTE: Florida law provides a stricter standard for the review of judicial fact finding in non-jury trials and evidentiary hearings than the corresponding standard that applies to factual findings under federal law. Federal Rule of Civil Procedure 52(a) provides that “findings of fact shall not be set aside unless clearly erroneous.”
NOTE: Before an appellate court can apply the competent substantial evidence test to the decisions of the trial judge in any non-jury trial or evidentiary hearing, the court must first determine whether the decision was actually based on a finding of fact. Some trial court decisions are actually the resolution of mixed issues of law and facts, and others are actually conclusions or inferences drawn from the facts.
5. The competent substantial evidence standard applies to a trial court decision that resolves conflicting evidence. It does not apply to inferences or conclusions drawn from the facts.
6. A finding of fact based on the trial judge’s acceptance of one interpretation of undisputed evidence is subject to appellate review by the clearly erroneous standard. Bradley v. Waldrop, 611 So.2d 31 (Fla. 1st DCA 1992). See also Sharrard v. Ligon, 892 So.2d 1092 (Fla. 2d DCA 2004).
7. The appellate courts have also held that the competent substantial evidence test also does not apply when a trial judge has made a factual decision based entirely on submission of written evidence. The considerations which normally govern the review of factual decisions are simply not present if the trial judge has made a decision solely on written evidence. Under these circumstances, the appellate court is in the same position as the trial court in reviewing the evidence. See Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188 (Fla. 4th DCA 2005).
8. Questions of credibility and weight to be given to the evidence are within the exclusive province of the trier of fact. Such questions are best resolved in the fact-finding process in the trial court, and not the appellate process. As long as evidence is legally sufficient, the appellate court may not substitute its judgment for that of the trier of fact on these matters. See Tibbs v. State, 397 So.2d 1120 (Fla. 1980). The sufficiency of the evidence is, of course, a proper issue before the appellate court. Id.
9. The amount of damages has also been held to be an issue that is within the exclusive province of the trier of fact. In non-jury cases, the courts have held that a trial judge’s award of damages will not be overturned if it is supported by competent substantial evidence. Emerald Pointe Property Owners’ Ass ‘n, Inc. v. Commercial Construction Industries, Inc., 978 So.2d 873 (Fla. 4th DCA 2008).
10. An even stricter standard is applied to the amount of damages set by a jury. An award of damages by a jury will not be disturbed on appeal unless it is manifestly so excessive as to shock the judicial conscience or indicative of prejudice, passion or corruption on the part of the jury. Tobias v. Osorio, 681 So.2d 905 (Fla. 4th DCA 1996).
C. REVIEW OF LEGAL DECISIONS
1. When an order under review rests purely on legal matters, that order is subject to full, or de novo, review on appeal. See Germ v. St. Luke’s Hosp. Ass’n, 993 So.2d 576 (Fla. 1st DCA 2008); Smith v. Coalition to Reduce Class Size, 827 So.2d 959 (Fla. 2002) (review of trial court’s application of law is de novo). Under this standard, the appellate court makes its own determination as to the correct principle of law to be applied to a particular set of facts. While the appellate court may presume that the trial court’s decision is correct, the presumption is easily overcome by a showing that an erroneous principal of law was applied.
2. De novo review simply means that the appellate court is free to decide a question of law, without deference to the trial judge, as if the appellate court had been deciding the question in the first instance. See Burzee v. Park Avenue Ins. Agency, Inc., 946 So.2d 1200 (Fla. 5th DCA 2006); Del Rio v. City of Hialeah, 904 So.2d 484 (Fla. 3d DCA 2005).
3. Examples of decisions subject to de novo review:
a. Frye issue
Trial court’s ruling on admissibility of expert opinion testimony, which is based on underlying novel scientific principle or technique, is reviewable as a matter of law under de novo standard of review — and not abuse of discretion standard. Marsh v. Valyou, 977 So.2d 543 (Fla. 2007). NOTE: General rule is that trial court’s admissibility of expert testimony is subject to abuse of discretion standard.
b. Sufficiency of pleadings and motions
(1) Rulings on motion to dismiss for failure to state a cause of action reviewable under de novo standard. Goodall v. Whispering Woods Center, L.L.C., 990 So.2d 695 (Fla. 4th DCA 2008); Jimenez v. Community Asphalt Corp., 968 So.2d 668 (Fla. 4th DCA 2007).
(2) Trial court’s characterization of debt action as a compulsory counterclaim presents pure issue of law subject to de novo review. Whigum v. Heilig-Meyers Furniture, Inc., 682 So.2d 643 (Fla. 1st DCA 1996).
(3) But see Stranahan House, Inc. v. City of Fort Lauderdale, 967 So.2d 427 (Fla. 4th DCA 2007) (where trial court dismisses complaint for declaratory judgment, the standard of review is abuse of discretion).
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).
E. STANDARD OF REVIEW FOR PETITION FOR CERTIORARI
1. When the discretionary jurisdiction of the appellate court is invoked, the standard of review is whether the lower court departed from the essential requirements of law. Vermette v. Ludwig, 707 So.2d 742 (Fla. 2d DCA 1997).
2. This standard of review is considered a higher standard than the direct review standard in that it is more difficult to demonstrate a departure from the essential requirements of the law than to demonstrate substantial error or lack of competent substantial evidence. See Hartman v. State, 346 So.2d 1043 (Fla. 1st DCA 1977) (demonstrating that standard of review in discretionary cases is more restrictive and limited than direct review standard).
F. STANDARD OF REVIEW IN ADMINISTRATIVE APPEALS
1. Rulings of administrative board acting in quasi-judicial capacity reviewable by certiorari and will be upheld if supported by competent substantial evidence. Schreiber Exp., Inc. v. Yarborough, 257 So.2d 245 (Fla. 1971); De Groot v. Sheffield, 95 So.2d 912 (Fla. 1957).
2. Exercise of local government zoning power (legislative in nature) subject to “highly deferential standard of judicial review” — or the “fairly debatable” standard of review. Courts must uphold if zoning decision could be justified as being “fairly debatable.” Board of County Com ‘rs of Brevard County v. Snyder, 627 So.2d 469 (Fla. 1993); Florida Water Services Corp. v. Robinson, 856 So.2d 1035 (Fla. 5th DCA 2003).
See also Nance v. Town of Indialantic, 419 So.2d 1041 (Fla. 1982) (“Fairly debatable” test of reviewing zoning decision distinguished from the “unique hardship” burden of proof for variances. Proper standard of review in a zoning variance case is whether the lower tribunal had before it competent substantial evidence to support its finding.)
G. OTHER PRINCIPLES PERTINENT TO STANDARD OF REVIEW
1. The appellate court will not undertake to resolve issues which, though of interest to bench and bar, are not dispositive of the particular case before the court. Pagan v. Sarasota County Public Hosp. Bd., 884 So.2d 257 (Fla. 2d DCA 2004).
2. When a change in law has occurred during the pendency of an appeal, the appellate court will apply the law prevailing at the time of the appellate decision rather than the law at the time of the trial. State v. Strazdins, 890 So.2d 334 (Fla. 2d DCA 2004); State v. Glatzmayer, 789 So.2d 297 (Fla. 2001).