Florida Bar Journal

Containing Canakaris: Tailoring Florida’s One-Fits-Most Standard of Review

Florida’s appellate rules were amended in 2001, requiring for the first time that initial briefs identify the standard of review applicable to each issue raised.¹ Since that change went into effect, appellants’ lawyers have searched Florida case law in vain, seeking a standard more precise than “abuse of discretion” to govern review of many rulings that involve questions of law, or of mixed law and fact. On many often raised issues, several jurisdictions have more finely tuned their appellate standards of review than has Florida. Tactful citation of out-of-state authorities in the mandatory standard-of-review portion of the briefing process is of great potential benefit, both to appellate clients and to the uniform administration of justice in this state.

As every Florida lawyer who handles appeals is well aware, “abuse of discretion” is routinely relied on by our appellate courts in a wide range of contexts as the appropriate standard of review, more often than not with a citation to Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). That case is regularly quoted for the proposition that “the appellate court must fully recognize the superior vantage point of the trial judge. . . . 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.”² That language is almost immediately preceded in Canakaris by a less often quoted, but important, qualification:

[A]ppellate courts must recognize the distinction between an incorrect application of an existing rule of law and an abuse of discretion. Where a trial judge fails to apply the correct legal rule, as when he refuses to terminate periodic alimony upon remarriage. . . , the action is erroneous as a matter of law. This is not an abuse of discretion. The appellate court in reviewing such a situation is correcting an erroneous application of a known rule of law. However, where the action of the trial judge is within his judicial discretion, as in the establishment of the amount of alimony. . . , the manner of appellate review is altogether different.³

Florida case law does appropriately recognize, in numerous contexts, that rulings on strictly legal matters may have involved “erroneous application of a known rule of law”⁴; review of those rulings is de novo.⁵ That standard of review “involves no more than a determination whether the issue was correctly decided in the lower court.”⁶ Review is de novo on purely legal issues such as whether summary judgment⁷ or dismissal⁸ was correctly granted, what body of law applies to a particular question,⁹ and whether a contract¹⁰ or statute¹¹ was correctly construed. (Other states characterize the same non-deferential standard of review as “plenary,”¹² “unlimited,”¹³ “free review,”¹⁴ “independent judgment,”¹⁵ or “the right/wrong standard.”¹⁶) Florida law also correctly requires deference to trial courts’ findings on purely factual questions, and to their rulings designed to maintain control of courtroom proceedings.¹⁷ Various statutory and rule provisions expressly grant the trial courts further discretion in particular subject matter areas, as does common law.¹⁸ Older Florida cases firmly establish that such areas of discretion are finite in scope, and that “[d]iscretion is not available as a support of a conclusion in the face of a positive rule of law to the contrary.”¹⁹ Many post-Canakaris opinions blur the formerly clear distinction between rulings which are contrary to positive rules of law, and rulings which fall into discretionary subject areas but which constitute abuses of that discretion in that they are altogether unsupported by the record.²⁰

Many evidentiary questions, and virtually all questions relating to jury instructions, involve application or misapplication of known rules of law, not judicial discretion; such questions should be – but are not, in Florida – dealt with as legal questions, or at least as mixed questions of fact and law, on appeal.

Jury Instructions
Florida appellate opinions, for the most part, announce broadly that “trial courts are generally accorded broad discretion in formulating jury instructions. . . . [T]he standard of review to be applied to a decision to give or withhold a jury instruction is abuse of discretion. . . . [I]f the jury instructions as a whole fairly state the applicable law, failure to give a particular instruction will not be error.”²¹ At least 15 other jurisdictions deem questions of how to word the instructions in a given case, and whether to instruct a jury on a particular point, to be at least in part questions of law. Those jurisdictions each apply a standard of review other than “abuse of discretion” to one or both of those questions.

In California, the courts hold that “[w]hether or not to give any particular instruction in any particular case entails the resolution of a mixed question of law and fact that, we believe, is. . . predominantly legal. As such, it should be examined without deference.”²² Six other states,²³ and most federal courts,²⁴ also apply de novo review to all rulings on whether and how to instruct juries. Five states,²⁵ and at least one federal court,²⁶ view a ruling as discretionary to the extent it resolves whether evidence has been introduced sufficient to support an instruction, but strictly legal—hence warranting no deference—to the extent it concerns how an instruction is worded. Some courts reverse that reasoning; they rule that courts have discretion in determining how to word instructions, but that the law governs whether evidence supports an instruction.²⁷ The Wisconsin courts, while announcing that “abuse of discretion” applies in general to jury instructions, add that the instructions given must cover the law, and specify that the question of which laws cover a particular set of facts will be reviewedde novo.²⁸

As to a trial court’s response to a jury question, the Florida Supreme Court has held that “[w]here a jury is confused concerning a point of law, the court must exercise sound discretion.”²⁹ The Hawaii courts hold that a trial court’s response to a jury question is “the functional equivalent of an instruction” and should be reviewed, like other jury instructions, by a mixed standard.³⁰ The Alaska courts, similarly, review questions regarding special verdict forms as they do all jury instruction questions: de novo.³¹ Florida courts, by comparison, “posses[s] exceptionally broad discretion” in the matter.³²

Evidentiary Questions
Virtually all evidentiary questions are treated in Florida as matters of pure judicial discretion. A rare exception appears in Ramirez v. State, 810 So. 2d 836 (Fla. 2001), where the Florida Supreme Court noted that rulings on the admissibility of novel scientific evidence (Frye³³ orders) are subject to de novo review.³⁴ The court in Ramirez erected a firm barrier between Frye orders and other trial court rulings on the admissibility of evidence. The latter, according to the court, are arrived at by weighing probative value against prejudicial value, and are appropriately scrutinized on appeal in light of an abuse of discretion standard.³⁵

The Hawaii Supreme Court, in contrast, has articulated a clearly reasoned two-step process for review of evidentiary questions: Where a ruling involves a “judgment call” by the trial court as to whether evidence is more prejudicial than probative, the appellate courts review for an abuse of discretion, but where the issue before the trial court was whether evidence is logically relevant, the ruling is reviewed by “the right/wrong standard.”³⁶ Four other states hold that evidentiary rulings are in general discretionary but will be reviewed de novo to the extent a particular ruling “turns on a question of law,”³⁷ “was [or was not] made in accordance with accepted legal standards,”³⁸ “involves a misconception of the law,”³⁹ or “turns on. . . interpretation of our law.”⁴⁰ While the Florida courts occasionally announce similar deference to a rule of law in the evidentiary context, they seldom apply it.⁴¹

Bifurcated Review in Florida
For some specific contexts, the Florida courts have adopted a bifurcated standard of review like the one Hawaii uses for evidentiary matters, dividing trial court orders into factual findings – which are accorded near-total deference – and legal rulings, which are reviewed de novo. The distinction is observed when the appellate courts review agency decisions⁴² and criminal sentencing decisions,⁴³ and in cases that involve constitutional issues such as dismissal on due process grounds,⁴⁴ suppression of evidence,⁴⁵ or ineffective assistance of counsel.⁴⁶ Generally, the Florida courts recognize as to constitutional questions that “[d]espite. . . deference to a trial court’s findings of fact, the appellate court’s obligation to independently review mixed questions of fact and law of constitutional magnitude is also an extremely important appellate principle. This obligation stems from the appellate court’s responsibilities to ensure that the law is applied uniformly in decisions based on similar facts. . . . ”⁴⁷
The two-step legal/factual approach has been applied in Florida with great precision in selected circumstances. For example, whether venue lies in a particular jurisdiction is a legal question, but whether a case should be moved from one proper venue to another is a factual question over which the trial courts have discretion.⁴⁸ Similarly, in the context of discovery violations, whether information was disclosed is a question of fact, but whether that information was material is a mixed question of fact of law subject to independent appellate review.⁴⁹ Again similarly, while setting the amount of attorneys’ fees is typically discretionary, questions of statutory or contractual interpretation that arise in attorneys’ fees disputes are dealt with as questions of law.⁵⁰

Conclusion
As Judge Griffin of the Fifth District has noted in another context, “the district courts of appeal. . . fal[l] into a trap that we make for ourselves over and over again. We seize on a phrase as a shorthand expression. . . , but before long the phrase becomes cant and grows far out of proportion to its true significance.”⁵¹ “Abuse of discretion,” with a reflexive citation to Canakaris, has for no defensible reason become a shibboleth in far too many contexts. The clear distinction recognized in older cases between issues which are properly analyzed as legal and those properly analyzed as discretionary should be revived. In particular, the many purely legal questions presented by disputes over jury instructions and evidentiary issues should be separated from factual issues, and the sound bifurcated approach set out above should be applied to the disparate legal and discretionary questions that arise in those contexts. q

¹ Amendments to Florida Rules of Appellate Procedure, 780 So. 2d 834, 838, 839 (Fla. 2000) (amending Fla. R. App. P. 9.210(b)(5), effective Jan. 1, 2001, “to require that the initial brief include the applicable standard of review for each issue”).
² Canakaris, 382 So. 2d at 1203.
³ Id. at 1202 (emphasis added).
⁴ Id.
⁵ Phillip J. Padovano, Florida Appellate Practice §9.4 (2004 ed.); Harvey J. Sepler, Appellate Standards of Review, 73 Fla. B.J. 48, 49 (Dec. 1999).
⁶ Id.
⁷ Major League Baseball v. Morsani, 790 So. 2d 1071 (Fla. 2001).
⁸ Mazer v. Orange County, 811 So. 2d 857 (Fla. 5th D.C.A. 2002).
⁹ Borden v. Phillips, 752 So. 2d 69, 72 (Fla. 1st D.C.A. 2000).
¹⁰ Auto-Owners Ins. Co. v. Marvin Dev. Corp., 805 So. 2d 888, 891 (Fla. 2d D.C.A. 2001).
¹¹ State, Agency for Health Care Admin. v. Wilson, 782 So. 2d 977 (Fla. 1st D.C.A. 2001).
¹² Gould v. Mellick and Sexton, 819 A.2d 216, 220 (Conn. 2003).
¹³ In re Marriage of Comley, 32 P. 3d 1128, 1131 (Kan. 2001).
¹⁴ Anderson v. Larsen, 34 P. 3d 1085, 1089 (Idaho 2001).
¹⁵ Municipality of Anchorage v. Repasky, 34 P. 3d 302, 305 (Alaska 2001).
¹⁶ State v. Poohina, 40 P. 3d 907, 910 (Haw. 2002).
¹⁷ Padovano, supra note 6, §§ 9.5, at 135–36, 9.6; Sepler, supra note 6, at 48–50.
¹⁸ See Fla. R. Civ. P. 1.061(a); Little v. Sullivan, 173 So. 2d 135 (Fla. 1965); Ellard v. Godwin, 77 So. 2d 617 (Fla. 1955); Peterson, Howell & Heather v. O’Neill, 314 So. 2d 808 (Fla. 3d D.C.A. 1975); Padovano, supra note 6, §9.5.
¹⁹ Little, 173 So. 2d at 137. Accord Ellard, 77 So. 2d 617; Peterson, Howell & Heather, 314 So. 2d 808.
²⁰ See Wilbur v. Hightower, 778 So. 2d 381, 385 (Fla. 4th D.C.A. 2001) (treating abuse of discretion and legal analyses interchangeably); Ciba-Geigy Ltd. v. Fish Peddler, Inc., 691 So. 2d 1111, 1113, 1115, 1125 (Fla. 4th D.C.A. 1997) (similar).
²¹ Westerheide v. State, 767 So. 2d 637, 656 (Fla. 5th D.C.A. 2000), approved, 831 So. 2d 93 (Fla. 2002); see Padovano, supra n.7, §9.5 at 136–37. But see Worley v. State, 848 So. 2d 491, 492 (Fla. 5th D.C.A. 2003), and Palmore v. State, 838 So. 2d 1222, 1223 (Fla. 1st D.C.A. 2003), which correctly note that in criminal cases, the scope of discretion to deny a jury instruction is narrowed by the defendant’s substantive right to an instruction on the theory of defense if any evidence supports the request.
²² People v. Waidla, 996 P.2d 46, 72 (Cal. 2000).
²³ Russell v. Stricker, 635 N.W. 2d 734, 738 (Neb. 2001); State v. Gaines, 36 P. 3d 438 (N.M. 2001); Wright v. Barr, 62 S.W. 3d 509, 526 (Mo. App. 2001); Lynden, Inc. v. Walker, 30 P. 3d 609, 612 (Alaska 2001); Robinson v. All-Star Delivery, Inc., 992 P. 2d 969 (Utah 1999); Owens v. Methodist Health Care Sys., No. 02A-1-9704-00089, 1999 WL 360562 (Tenn. App. 1999); Solomon v. First Am. Nat’l Bank of Nashville, 774 S.W. 2d 935, 940 (Tenn. App. 1989). See also State v. Blankenship, 542 S.E. 2d 433, 438-39 (W. Va. 2000) (reciting both abuse of discretion and de novo standards).
²⁴ U.S. ex rel. Stone v. Rockwell Int’l Corp., 282 F. 3d 787, 812 (10th Cir. 2002); Girden v. Sandals Int’l, 262 F. 3d 195, 202-03 (2d Cir. 2001); Middlebrooks v. Hillcrest Foods, Inc., 256 F. 3d 1241, 1248 (11th Cir. 2001); Romano v. U-Haul Int’l, 233 F. 3d 655, 665 (1st Cir. 2000); Emergency One, Inc. v. American FireEagle, Ltd., 228 F. 3d 531, 538 (4th Cir. 2000).
²⁵ Schlimgen v. May Trucking Co., 37 P. 3d 1005, 1009 (Or. App. 2001), rev’d on other grounds, 61 P. 3d 923 (Or. 2003); Hilgendorf v. St. John Hosp. and Med. Ctr. Corp., 630 N.W.2d 356, 369 (Mich. App. 2001); Perry v. Magic Valley Reg’l Med. Ctr., 995 P. 2d 816, 821 (Idaho 2000); Richardson v. Sport Shinko (Waikiki Corp.), 880 P. 2d 169, 179 (Haw. 1994). Compare Lewis v. State, 626 A. 2d 1350, 1354 (Del. 1993), with McNally v. Eckman, 466 A. 2d 363, 370 (Del. 1983).
²⁶ Navellier v. Sletten, 262 F. 3d 923, 944 (9th Cir. 2001).
²⁷ United States v. Irorere, 228 F. 3d 816, 825 (7th Cir. 2000); United States v. Dickerson, 163 F. 3d 639, 641 n.3 (D. C. Cir. 1999).
²⁸ Vogel v. Grant-Lafayette Elec. Co-op., 548 N.W. 2d 829, 832 (Wis. 1996).
²⁹ Perriman v. State, 731 So. 2d 1243, 1246-47 (Fla. 1999).
³⁰ State v. Miyashiro, 979 P. 2d 85, 88 (Haw. 1999); see Richardson, 880 P. 2d at 179 (Haw. 1994).
³¹ Coulson v. Marsh & McLennan, Inc., 973 P. 2d 1142, 1150 n. 21 (Alaska 1999).
³² Firmani v. Grant, 681 So. 2d 869, 869 (Fla. 5th D.C.A. 1996).
³³ Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
³⁴ Ramirez, 810 So. 2d at 844.
³⁵ Id. at 842–43.
³⁶ State v. Richie, 960 P. 2d 1227, 1244–46 (Haw. 1998).
³⁷ Zieber v. Bogert, 773 A. 2d 758, 760 n. 3 (Pa. 2001).
³⁸ State v. Weber, 496 N.W. 2d 762, 766 (Wis. App. 1993).
³⁹ Bunting v. Bunting, 760 A. 2d 989, 993 (Conn. App. 2000).
⁴⁰ Skaggs v. Elk Run Coal Co., Inc., 479 S.E.2d 561, 573 (W. Va. 1996)
⁴¹ See McCoy v. State, 853 So. 2d 396, 406 (Fla. 2003) (“[D]iscretion. . . is guided and informed by applicable precedent.”)
⁴² Southwest Florida Water Mgmt. Dist. v. Save the Manatee Club, Inc., 773 So. 2d 594 (Fla. 1st D.C.A. 2000).
⁴³ Whether a set of facts is a recognized mitigating factor is a question of law, but whether that set of facts has been proved in a particular case involves the court’s discretion. See Ford v. State, 802 So. 2d 1121 (Fla. 2001).
⁴⁴ State v. Taylor, 784 So. 2d 1164 (Fla. 2d D.C.A. 2001).
⁴⁵ Connor v. State, 803 So. 2d 598, 605-08 (Fla. 2001).
⁴⁶ Stephens v. State, 748 So. 2d 1028 (Fla. 1999).
⁴⁷ Id. at 1034.
⁴⁸ Host Marriott Tollroads, Inc., v. Petrol Enters., 810 So. 2d 1086 (Fla. 4th D.C.A. 2002).
⁴⁹ Way v. State, 760 So. 2d 903, 911, 913 (Fla. 2000).
⁵⁰ See Black v. Bedford At Lake Catherine Homeowners Ass’n, Inc., 801 So. 2d 252, 253 (Fla. 4th D.C.A. 2001); Gibbs Const. Co. v. S. L. Page Corp., 755 So. 2d 787, 790 (Fla. 2d D.C.A. 2000).
⁵¹ Samborn v. State, 666 So. 2d 937, 939 (Fla. 5th D.C.A. 1995) (Griffin, J., concurring in part and dissenting in part).

Nancy Ryan received her B.A. and J.D. degrees from the University of Florida, and has engaged in appellate litigation since 1989. After serving for three years as an assistant attorney general for the State of Florida, she now argues criminal and civil-commitment appeals for the Seventh Judicial Circuit Public Defender’s Office.

The author thanks Bruce Rogow and Beverly Pohl for suggesting the idea for this article.

This column is submitted on behalf of the Appellate Practice and Advocacy Section, Jack J. Aiello, chair, and Jacqueline E. Shapiro, editor.