APPEALS

Question 1

Trial decisions are classified into one of three categories

Answer 1

1. Decisions of facts
2. Decisions of law
3. Discretionary decisions

Question 2

When will a finding of fact be set aside

Answer 2

Where there is no substantial competence evidence to sustain it

Question 3

When will appellate court use the erroneous test as opposed to competence substantial evidence test?

Answer 3

A finding which rests on conclusions drawn from UNISPUTED 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. When the appellate court is convinced that an express or inferential finding of the trial court is without support of any substantial evidence, is clearly against the weight of the evidence or that the trial court has misapplied the law to the established facts, then the decision is “clearly erroneous” and the appellate court will reverse because the trial court has “failed to give legal effect to the evidence” in its entirety

Question 4

When will appellate court appeal court apply competent substantial evidence test

Answer 4

When evidence is DISPUTED

Question 5

When is a trial court’s decision a decision of law?

Answer 5

When the decision rests either on a pure matter of law or on documentary evidence that can be evaluated equally well by the appellate and trial courts, the standard of review is de novo.

Question 6

What does de novo mean

Answer 6

“Free review” means simply that “although the trial court is presumed to be correct, the appellate court is free to decide the legal issue differently without paying deference to the trial court’s review of the law.”.

Question 7

What are discretionary decisions

Answer 7

Decisions exercised in the trial court’s discretion. Under this category, appellate courts will not reverse absent an abuse of discretion.

Question 8

What is the test for abuse of discretion

Answer 8

It is a test of reasonableness - 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.

Question 9

When has discretion been “abused”

Answer 9

When the decision is ““arbitrary, fanciful or unreasonable

Question 10

Where a trial court expanded support obligations for healthy, post majority support what standard should be applied on appeal

Answer 10

de novo standard

Question 11

What standard should be applied for an amount of alimony award

Answer 11

Abuse of discretion

Question 12

when the trial court is determining parties’ earning capacities in a child support case what standard should be applied

Answer 12

he competent substantial evidence standard

Question 13

Appellate review of procedural orders under the Florida Family Law Rules of Procedure usually applies which standard

Answer 13

Abuse of discretion UNLESS it also applied question of law (e.g. Motion to Dismiss)

Question 14

What’s the standard of review on discovery orders

Answer 14

Abuse of discretion

Question 15

When a party moves to transfer venue for the convenience of the parties and court rules, what standard is applied

Answer 15

If the trial court is faced with more than one legally acceptable venue and must choose the location, the abuse of discretion standard is applied BUT if the trial court transfers venue to a location where the action could not have been brought, such a transfer is probably both an error of law and an abuse of discretion.

When a trial court is presented with a motion to transfer venue based on the impropriety of petitioner’s venue selection, respondent is arguing as a matter of law the suit has been filed in the wrong forum

Question 16

What standard when a trial court is presented with a motion to transfer venue based on the impropriety of petitioner’s venue selection, respondent is arguing as a matter of law the suit has been filed in the wrong forum

Answer 16

In order to rule on such a motion, the trial court needs to resolve any relevant factual disputes and then make a legal decision whether the plaintiff’s venue selection is legally supportable. A trial court’s factual decisions in this context are reviewed to determine whether they are supported by competent, substantial evidence or whether they are clearly erroneous…. The trial court’s legal conclusions are reviewed de novo.

Question 17

What standard for motion to continue

Answer 17

Abuse of discretion

Question 18

What standard for summary judgment

Answer 18

A review of a final summary judgment is subject to the de novo standard (“if the record establishes the existence of a genuine issue of material fact, summary judgment is not appropriate as a matter of law”).

Courts have long recognized that “summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.”

It is the burden of the moving party to show the absence of a genuine material fact.

Question 19

What standard for default judgment

Answer 19

Generally subject to the abuse of discretion standard, unless a question of law is at issue like lack of personal jurisdiction over the respondent, then it is subject to the de novo standard. (“The de novo standard of review also applies to the review of an order determining whether a final judgment by default is void for lack of personal jurisdiction over the defendant.”; Deluca v. King, 197 So.3d 74 (Fla. 2d DCA 2016) (trial court erred in denying motion to vacate because it had no discretion to refuse to vacate void judgment; whether judgment is void for lack of personal jurisdiction is reviewed de novo).

Question 20

What standard of review of injunctions

Answer 20

It depends on the basis for the order. If the injunction order is based on a pure question of law, the appellate court will apply the de novo standard of review.

However, if the injunction is based on findings of fact, it must be supported by competent substantial evidence and will be affirmed absent a showing of abuse of discretion.

Question 21

What standard of review on motion for rehearing

Answer 21

It has long been established that allowing a party to reopen the case to introduce additional testimony or evidence is a matter of trial court discretion and that this ruling will not be overturned in the absence of an abuse of discretion.

However, if the reason for granting the rehearing involves a question of law, the standard is applied in a restricted manner. Id. Florida Power & Light Co. v. Hayes, 122 So.3d 408 (Fla. 4th DCA 2013) (applying same standard in new trial context); University of Miami v. Francois, 76 So.3d 360, 364 (Fla. 3d DCA 2011), rev. den., 99 So.3d 943 (in question of law, appellate court on same footing as trial court in determining correct law to be applied).

Question 22

What standard for evidence

Answer 22

Abuse of discretion

But, the trial court discretion’s is limited, since purely legal matters such as the interpretation and application of a statute or case law, are subject to de novo review.

Whether evidence falls within statutory definition of hearsay is question of law, subject to de novo review

rounds 136 So.3d 1125 (whether trial court correctly interpreted and applied evidence code and case law is question of law, subject to de novo review).

Question 23

What standard off review to qualify an expert

Answer 23

whether a witness qualifies as an expert in a particular area is left to the discretion of the trial judge and will not be disturbed absent an abuse of that discretion

Question 24

What standard of review for Admissibility of Scientific or Expert Evidence

Answer 24

The trial court decisions admitting scientific or expert testimony will not be overturned absent a finding of abuse of discretion

Question 25

What standard for hearsay

Answer 25

if the evidentiary question is not factually based, such as whether evidence falls within the statutory definition of hearsay, is a matter of law and subject to de novo review.