The Florida Bar
www.floridabar.org
The Florida Bar Journal
May, 2010 Volume 84, No. 5
Judging Your Appeal: A Practitioner’s Perspective

by Jack R. Reiter

Page 34

One of the challenges facing a practitioner is judging the merits of an appellate proceeding to determine the likelihood of success or the possibility of failure. There is no mechanical formula for discerning whether a case will be won or lost on appeal. Nonetheless, certain objective factors can be routinely applied to help illuminate the relative merit of an appellate position.1

When examining the chances of success or failure in an appellate proceeding, one method of analysis begins by factoring the very nature of the order entered, which defines the scope of inquiry and intersects with the standard of review. Analyzing an appeal from these perspectives can guide a practitioner as to the inherent strengths or weaknesses of a position and provide insight into whether the appeal will succeed or fail.

Standards of Review
Generally, when appealing either a final order or a nonfinal order reviewable under Fla. R. App. P. 9.130 in a civil matter, there are three different standards of review that can be applied in varying gradations. These standards are de novo, abuse of discretion, and competent substantial evidence. Each standard applies in different circumstances and presents a different framework for assessing a lower tribunal’s order. When evaluating the merits of an appeal, examining the standards of review presents a logical first step in weighing the chances of success or failure and plays a critical role in the analysis.

De Novo The de novo standard presents an appellant with the best chance of success by providing a proverbial second bite at the apple. When an appellate court applies the de novo standard, it literally examines an issue anew. This enables the appellate court to review the order and record in their entireties to determine whether the trial court’s conclusion is contrary to law or otherwise erroneous. Furthermore, under this standard, the appellant does not face either heightened deference to the trial court or a presumption of correctness insulating the trial court’s order.2

On the other hand, the de novo standard presents greater concern to an appellee because it eliminates deference to the trial court’s conclusion. Therefore, an appellee who is asking the appellate court to affirm a decision evaluated under the de novo standard must demonstrate that the trial court reached the correct legal decision and cannot fall back on alternative arguments asserting that the presumption of correctness or deference to the trial judge require affirmance.

Trial court decisions that are deemed to be purely questions of law are subject to de novo review.3 Examples of decisions reviewed de novo include those that interpret unambiguous contract language;4 interpret language in insurance policies;5 involve statutory interpretation;6 examine whether legal issues are intertwined for purposes of a fees award;7 determine whether a party has advanced sufficient facts to support a punitive damages claim;8 or review an order granting a motion to dismiss.9

Abuse of Discretion Unlike decisions that are subject to the de novo standard, decisions that are deemed to be within the trial court’s discretion present a much more significant appellate hurdle. As the Florida Supreme Court has explained, the abuse of discretion standard requires the appellate court to evaluate whether the trial court’s decision is arbitrary, fanciful, or unreasonable. “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.”10 A trial judge’s discretionary decision is clothed with a presumption of correctness.11 Therefore, challenging a discretionary decision presents a lofty challenge. As an appellant, if you are facing the abuse of discretion standard, this should be heavily factored into the analysis of whether you have a meaningful chance of success. On the other hand, the appellee benefits greatly from this standard. The trial judge’s discretionary ruling will be deemed correct, giving the appellee’s position an edge on appeal.

Discretionary decisions generally involve matters that relate specifically to the conduct of trial, such as admitting or excluding evidence.12 Other examples of discretionary decisions include orders denying a motion to vacate default13 or to vacate a judgment under Fla. R. Civ. P. 1.540;14 the application of a multiplier in an award of attorneys’ fees;15 rulings on objections to closing argument;16 awards of permanent, periodic alimony and other decisions in the dissolution of marriage context;17 findings regarding class certification;18 and orders imposing sanctions for bad faith litigation.19

The abuse of discretion standard is rooted in the principle that the trial judge is better situated to examine certain factors and the overall impact upon a proceeding. For example, after a trial judge has overseen an entire trial, it will be within his or her discretion to decide whether the admission of certain evidence or an improper comment warrants a mistrial20 and, at least in the absence of certain legal issues, whether to give proposed jury instructions.21

Substantial Competent Evidence
A perhaps even greater appellate burden is challenging a decision based upon factual findings. A factual decision, including one that forms the foundation for an ultimate legal conclusion, is reviewed under the substantial competent evidence standard.22 “As a general rule, a decision in a nonjury case based on a finding of fact from disputed evidence is subject to the competent, substantial evidence standard of review on appeal because the trial judge is in the best position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor, and credibility of the witnesses.’”23 Substantial competent evidence is “such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred,” and that is “sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached.”24 Such evidence has also been described as “tantamount to legally sufficient evidence.”25

As with the abuse of discretion standard, evaluating the merits of an appeal when the underlying decision is factual is very different than the analysis involved in assessing an appeal under a de novo standard. The appellate court will typically not reweigh the quality and caliber of evidence supporting a specific factual conclusion underlying the order appealed, so long as record evidence exists and is competent and substantial. Therefore, even if different facts in evidence can support alternative conclusions, if evidence supports the one reached by the trial judge, then the appellate court will not revisit such factual conclusions.

Mixed Standards of Review and Applying the Standards to Particular Rulings Although standards of review provide the basis for evaluating the ability to obtain reversal (or affirmance) of a trial court’s conclusion, mixed standards of review provide a multi-tiered analytical framework. Because legal conclusions are reviewed de novo, procedural questions are typically evaluated under the abuse of discretion standard, and factual issues are examined to discern whether they are based upon competent substantial evidence; the ability to appeal successfully may hinge upon which specific element of the trial court’s conclusion is at issue. In other words, what may appear to be a purely factual issue may actually rest upon an underlying legal conclusion — or at least an argument to that effect may be viable.26 As one court explained in analyzing a motion to compel arbitration, although the trial court’s factual findings are reviewed under a competent, substantial evidence standard, review of the trial court’s application of the law to the facts is de novo.27 Therefore, it is imperative when evaluating the chances of success to consider whether you are facing a mixed standard of review that offers different challenges to a subject order.

Specific Types of Orders
Another relevant factor affecting the likelihood of success or failure on appeal is the type of order for which review is sought. As explained above, different types of orders are weighed under different standards of review. Additionally, there are certain orders which provide presumptions and standards that can increase (or decrease) the chances of success on appeal. Of course, it is impossible to identify and discuss every possible form of order and the applicable standard. But the following discussion identifies certain common rulings and general principles applicable to the review process.

Order Dismissing Complaint An order dismissing a complaint with prejudice is one type of order that typically provides presumptions that greatly increase the chance of success on appeal. As a threshold matter, an order dismissing a complaint with prejudice is reviewed de novo.28 In assessing whether the complaint states a cause of action, the appellate court will examine the allegations of the complaint completely. The appellate court, like the trial court, is obligated to accept the allegations of a complaint as true for purposes of determining whether it states a cause of action.29 This presents a more favorable position for an appellant seeking reversal.

Summary Final Judgment or Order Denying Motion for Directed Verdict Like an appeal from an order dismissing a complaint, a summary final judgment or order granting a directed verdict motion is reviewed under a de novo standard.30 An appellant who wishes to challenge a summary final judgment is arguably on at least equal footing with the party that prevailed below because there is no presumption of correctness. In fact, the burden arguably shifts and requires the appellee to establish that the trial judge correctly disposed of the case.31 All inferences must be examined in favor of the losing party, and the appellee must effectively demonstrate that there were no disputed material facts.32 An appellant seeking review of a summary final judgment can either demonstrate the existence of disputed facts that require jury consideration or, alternatively, convince the appellate court that the trial court’s analysis of the legal issues was incorrect. This provides the appellant with a powerful procedural mechanism for obtaining greater consideration of his or her appellate position and should be factored into the analysis of the merits of the appeal.

Form of Review — Original Proceedings
Another significant factor in evaluating the likelihood of success or failure in seeking review is the form of review, which is directly tied to the type of order. If an appeal is unavailable, the common law writ of certiorari presents a potential, albeit rare, alternative for possible relief.33 For example, a discovery order is not appealable, but if it requires disclosure of information arguably deemed confidential or protected by a privilege, a petition for a writ of certiorari presents a method for review.34 To obtain a writ of certiorari, however, one must establish a departure from the essential requirements of law causing irreparable harm that cannot be remedied on appeal.35 Courts have repeatedly cautioned that this writ will not be used to expand the jurisdiction of an appellate court or as a substitute for an appeal.36 Therefore, while a petition for a writ of certiorari may be available in certain instances, its high threshold limits the ability to obtain the writ. Accordingly, this should be factored into the equation in discerning the potential success of your review efforts.

Impact of Preservation of Error and Creation of the Record
Another significant factor in assessing any appellate matter is whether the issue was preserved for review. Although preservation of error must occur during proceedings before the lower tribunal, it remains one of the most crucial concepts of appellate procedure. In the absence of fundamental error, it is well settled that an appellate court will not consider arguments that were not first advanced before the trial court.37 Thus, while preserving error is no guarantee of success on appeal, failing to preserve error will maximize the likelihood of failure. Therefore, when judging the merits of an appeal or considering whether to assert a certain argument, careful attention must be paid to ensure that arguments or objections were appropriately advanced before the lower tribunal.

A related issue is the record. When an appellate court is evaluating a purely legal issue, the absence of a transcript may not be fatal to an appeal.38 On the other hand, if the appeal involves factual findings or discretionary decisions, the absence of a transcript can seriously undermine an appellate argument.39 Indeed, an appellate court will affirm if the record transmitted does not demonstrate reversible error.40 This means that when evaluating an appellate argument, one must ensure all necessary documents or transcripts have become a part of the record either because they were filed or, at the very least, because they were presented to the trial court and referenced during a hearing.41 If critical documents were never filed or presented to the trial judge, they cannot be made part of an appellate record.42

Conclusion — Posturing Your Appeal for Success
Although this article focuses on evaluating your appeal, there are also specific steps a practitioner can take to maximize the chance of success if an appeal is necessary. As noted above, standards of review present the general framework through which various orders will be examined. But such standards are not completely inflexible. One challenge is to determine whether certain components of a trial court’s decision that appear to be discretionary may actually rest on legal conclusions. If a seemingly factual decision by a trial court rests on underlying legal principles, one can arguably focus solely upon the legal component and obtain de novo review, rather than attempt to challenge factual or discretionary decisions.

Furthermore, it is important to realize that appellate practice begins at the trial level — not once a notice of appeal is filed. Strategic decisions made at trial should be considered not only for the chance of success before the trial judge or jury, but also for how that decision will ultimately be perceived on appeal, particularly as it relates to preservation and record issues.

Finally, evaluating any appellate or review proceeding should always be tempered with real world considerations and not in a legal vacuum. This may be most evident in the realm of harmless error. A trial court’s ruling may indeed be incorrect, but this does not mean it rises to the level of reversible error. An otherwise powerful argument will be undermined, not bolstered, by a claimed error that has no real impact on the ultimate disposition of the proceedings.

1 This article is limited to civil practice issues.

2 See D’Angelo v. Fitzmaurice, 863 So. 2d 311, 314 (Fla. 2003) (“The standard of review for the pure questions of law before us is de novo. Therefore, no deference is given to the judgment of the lower courts.”) (internal citations omitted); Calderon v. J.B. Nurseries, Inc., 933 So. 2d 553 (Fla. 1st D.C.A. 2006) (holding that contract interpretation is subject to de novo review without deference to the interpretation offered by the trial court).

3 See D’Angelo, 863 So. 2d at 314.

4 See Neumann v. Brigman, 475 So. 2d 1247, 1249 (Fla. 2d D.C.A.1985) (“Where contract language is clear and unambiguous, it is up to the court to interpret the contract as a matter of law.”); Wheeler v. Wheeler, Erwin & Fountain, P.A., 964 So. 2d 745, 749 (Fla. 1st D.C.A. 2007) (“Whether an ambiguity exists is also a question of law.”).

5 See Auto-Owners Ins. Co. v. Pozzi Window Co., 984 So. 2d 1241, 1246 (Fla. 2008).

6 See State v. Sigler, 967 So. 2d 835, 841 (Fla. 2007).

7 See Ocean Club Cmty. Ass’n v. Curtis, 935 So. 2d 513, 516 (Fla. 3d D.C.A. 2006). 8 See Estate of Williams ex rel. Williams v. Tandem Health Care of Fla., 899 So. 2d 369, 376 (Fla. 1st D.C.A. 2005).

9 See Rubenstein v. Primedica Healthcare, Inc., 755 So. 2d 746, 748 (Fla. 4th D.C.A. 2000).

10 Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980)

11 Wade v. Hirschman, 903 So. 2d 928, 935 (Fla. 2005).

12 See H&H Elec., Inc. v. Lopez, 967 So. 2d 345, 347 (Fla. 3d D.C.A. 2007) (“We review discretionary issues involving the admission of evidence ... for abuse of discretion.”); Moore v. State, 701 So. 2d 545, 549 (Fla. 1997) (“Limitation of cross-examination is subject to an abuse of discretion standard.”).

13 See Gibson Trust, Inc. v. Office of the Attorney Gen., 883 So. 2d 379, 382 (Fla. 4th D.C.A. 2004); see also Finkel v. Outdoor Prods., Inc. v. Lasky, 529 So. 2d 317, 318 (Fla. 2d D.C.A. 1988) (“A mere abuse of discretion is sufficient to warrant reversal of a trial judge’s refusal to vacate an interlocutory order of default as opposed to a gross abuse of discretion needed to reverse a refusal to vacate a default judgment.”).

14 See J.J.K. Int’l, Inc. v. Shivbaran, 985 So. 2d 66, 68 (Fla. 4th D.C.A. 2008).

15 See Holiday v. Nationwide Mut. Fire Ins. Co., 864 So. 2d 1215, 1218 (Fla. 5th D.C.A. 2004).

16 See Peterson v. State, 2 So. 3d 146, 158 (Fla. 2009).

17 See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980); Lightcap v. Lightcap, 14 So. 3d 259, 260 (Fla. 3d D.C.A. 2009).

18 See Allstate Indem. Co. v. De La Rosa, 800 So. 2d 245, 245 (Fla. 3d D.C.A. 2001).

19 See Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). The Florida Supreme Court explained that this standard of review is appropriate because the trial judge “sees the parties first-hand and is more fully informed of the situation,” regarding a noncompliance with procedural rules. Id. at 945 (quoting Farish v. Lum’s, Inc., 267 So. 2d 325, 327-28 (Fla. 1972)).

20 See Salazar v. State, 991 So. 2d 364, 371-72 (Fla. 2008); Goodwin v. State, 751 So. 2d 537, 546 (Fla. 1999).

21 See Barbour v. Brinker Fla., Inc., 801 So. 2d 953, 959 (Fla. 5th D.C.A. 2001); Worley v. State, 848 So. 2d 491, 491 (Fla. 5th D.C.A. 2003).

22 Open Permit Servs. of Fla., Inc. v. Curtiss, 15 So. 3d 822, 825 (Fla. 3d D.C.A. 2009).

23 In re Estate of Sterile, 902 So. 2d 915, 922 (Fla. 2d D.C.A. 2005) (quoting Shaw v. Shaw, 334 So. 2d 13, 16 (Fla. 1976)).

24 Perdue v. TJ Palm Assocs., Ltd., 755 So. 2d 660, 665 (Fla. 4th D.C.A. 1999) (quoting DeGroot v. Sheffield, 95 So. 2d 912, 916 (Fla.1957)) (citations omitted).

25 In re M.F., 770 So. 2d 1189, 1192 (Fla. 2000).

26 See City of Coral Gables v. Coral Gables Walter F. Stathers Memorial Lodge 7, Fraternal Order of Police, 976 So. 2d 57, 63 (Fla. 3d D.C.A. 2008) (quoting LeDew v. Unemployment Appeals Comm’n, 456 So. 2d 1219, 1221-22 (Fla. 1st D.C.A. 1984) (holding that “although courts typically uphold agency decisions that are supported by competent, substantial evidence, ‘the same standards of review do not apply to an erroneous application of the law to the facts.’”); Office of Fire Code Official v. Fla. Dep’t of Fin. Servs., 869 So. 2d 1233, 1237 (Fla. 2d D.C.A. 2004) (stating that deference to agency decisions “does not require that we defer to an implausible and unreasonable statutory interpretation adopted by an administrative agency”).

27 See BDO Seidman, LLP v. Bee, 970 So. 2d 869, 873-74 (Fla. 4th D.C.A. 2007); see also Woebse v. Health Care & Retirement Corp. of Am., 977 So. 2d 630, 631 (Fla. 2d D.C.A. 2008) (“The appellate review of the trial court’s factual findings is limited to determining whether they are supported by competent, substantial evidence. However, the standard of review applicable to the trial court’s construction of the arbitration provision and to its application of the law to the facts found is a de novo review.”).

28 Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So. 3d 400, 402 (Fla. 3d D.C.A. 2009).

29 Rubenstein, 755 So. 2d at 748.

30 See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000) (summary judgment); Premier Lab Supply, Inc. v. Chemplex Indus., Inc., 10 So. 3d 202, 205 (Fla. 4th D.C.A. 2009) (directed verdict).

31 See Keller v. Reed, 603 So. 2d 717, 719-20 (Fla. 2d D.C.A. 1992).

32 Id.

33 See Broward County v. G.B.V. Int’l, Ltd., 787 So. 2d 838, 842 (Fla. 2001) (“The writ [of certiorari] functions as a safety net and gives the upper court the prerogative to reach down and halt a miscarriage of justice where no other remedy exists.”).

34 See Gazerro v. Crane, 890 So. 2d 446 (Fla. 4th D.C.A. 2004).

35 Fla. R. App. P. 9.100; Martin-Johnson, Inc. v. Savage, 509 So. 2d 1097, 1099 (Fla. 1987).

36 Savage, 509 So. 2d at 1098.

37 Abrams v. Paul, 453 So. 2d 826, 827 (Fla. 1st D.C.A. 1983); see also Lipsig v. Ramlawi, 760 So. 2d 170, 192-93 (Fla. 3d D.C.A. 2000).

38 See Seal Prods. v. Mansfield, 705 So. 2d 973, 975 (Fla. 3d D.C.A. 1998) (stating appellant bears burden of presenting proper record for consideration of issues presented on appeal; transcript of summary judgment hearing is not necessary when hearing involves only legal argument and not taking of evidence).

39 See Phenion Dev. Group, Inc. v. Love, 940 So. 2d 1179, 1185 (Fla. 5th D.C.A. 2006) (“Further, because we were not provided with a transcript of the relevant hearing, we must presume that the trial court’s decision was based upon a correct balancing of interests.”).

40 See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979) (holding “the decision of a trial court has the presumption of correctness and the burden is on the appellant to demonstrate error”).

41 See Poteat v. Guardianship of Poteat, 771 So. 2d 569, 573 (Fla. 4th D.C.A. 2000) (noting that document or deposition transcript considered by trial court but, through inadvertence, not placed in record is appropriate subject of motion to supplement record on appeal).

42 Id. at 572-73.


Jack R. Reiter is the chair of the appellate practice department at Adorno & Yoss, LLP. He is board certified in appellate practice and AV-rated by Martindale-Hubbell. Mr. Reiter is a former chair of the Appellate Court Rules Committee, the current secretary-treasurer of the Appellate Practice Section of The Florida Bar, and served as chair of the Dade County Bar Association Appellate Court Committee from 2008-2010. He has published and lectured extensively on multiple areas of appellate practice.

This column is submitted on behalf of the Appellate Practice Section, Dorothy F. Easley, chair, and Tracy R. Gunn, Heather M. Lammers, and Kristin A. Norse, editors.

[Revised: 02-10-2012]