Appeals

Question 1

What are the three categories of trial decisions?

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

De novo 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

Discretion is abused when the judicial action is arbitrary, fanciful, or unreasonable, meaning that no reasonable person would take the view adopted by the trial court. Giacomaro v. Brossia 4th DCA 2024

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.

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

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.

Question 16

What standard for motion to continue?

Answer 16

Abuse of discretionn.

Question 17

What standard for summary judgment?

Answer 17

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 a 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 18

What standard for default judgment

Answer 18

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 19

What standard of review of injunctions

Answer 19

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 20

What standard of review on motion for rehearing

Answer 20

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.

Question 21

What standard for evidence

Answer 21

Abuse of discretion

But, the trial court discretion 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 22

What standard off review to qualify an expert

Answer 22

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 23

What standard of review for Admissibility of Scientific or Expert Evidence

Answer 23

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

Question 24

What standard for hearsay

Answer 24

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.

Question 25

Can the appellate court reweigh testimony to find it credible or not credible?

Answer 25

No. The appellate court has no authority to reweigh testimony as to credibility. Ouslander v. Ouslander 4th DCA 2024

Question 26

If an FJ was entered, but a few days later and Amended FJ was entered to correct a scrivenor’s error, what date is used to start the clock for the timely filing of the appeal?

Answer 26

If the amended FJ does not materially change the original FJ, the tie to appeal begins upon the entry of the original FJ.

Question 27

If a FJ orders entitlement to attorney’s fees but reserved on the amount of fees, is the entitlement order ripe for appeal?

Answer 27

No.