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TexLaw
TexLaw, Attorney
Category: Legal
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Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Re: FL Appeals Case: wrong ‘Standard of Review? I chose De

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Re: FL Appeals Case: wrong ‘Standard of Review?
I chose De Novo, which I thought meant review the whole case not for abuse of discretion.
A. Standard of Review.

While Appellant (me) suggests that the standard of review should be de novo, the appropriate standard of review for a trial court’s confirmation of an arbitration award is the abuse-of-discretion standard.

URGENT QUESTION SO I CAN FINISH TONIGHT…..

HOW DO WE KNOW IF WE CHOSE THE RIGHT STANDARD OF REVIEW AND IF WE CHOSE WRONG CAN WE CHANGE IT NOW IN THE MIDDLE ON THE REPLY BRIEF, (THE REPLY TO THE ANSWER TO THE Initial)
Hello.

What kind of case is it?
Customer: replied 4 years ago.

..it is a case stemming from an arbitration award, where the 'defendant' wasn't given 'proper service/notice' for the arbitration hearing.. and having not been present at the hearing argued in court, where the plaintiff argued for 'judgment on the arbitration ruling' for the plaintiff... that defendant's case wasn't heard and the ruling was unfair..

 

The judge basically ruled that because defendant had conversational and email contact w/ the arbitrator, that although misinformation about the hearing scheduling was diseminated in those communications, that in effect, no formal notice by service/mail was necessary...(!?) this in direct violation of Fl code... and the arbitrator cannot provide 'proof of service,' as there was none...

 

.. so the defendant is appealing that decision and wants a new arbitration hearing, based on 'no service/improper notice'. (the remedy proscribed by statute, where 'no/improper service is at issue)..

 

Defendant filed the appeal and plaintiff answered . . and defendant, having been informed that he chose the 'Wrong Standard of Review', needs to know, if, in responding to plaintiff's response to the appeal, if the Standard of Review can be changed ('in mid-stream) , from de Novo to the abuse-of-discretion standard?

Hi,

I'd be happy to answer your question. My understanding is that you are in the midst of an appeal from a trial court's confirmation of an arbitration award. You are seeking the overturn of that confirmation based on the fact that the underlying arbitration was not conducted with due process (i.e., you were not give proper notice of the arbitration proceeding). You filed the appeal and asked for review De Novo. However, you have now determined that the appropriate standard of review is the "abuse of discretion" standard. You want to know whether you need to change the standard in your reply brief.

Generally, your statement of the standard in an appellate brief does not designate the standard for the court. The controlling law is what designates the standard, and you are simply supposed to point out what the controlling law is in your brief. Thus, if you get it wrong in your brief, by misstating the standard, this does not actually change the standard that the appellate court must act under. So, technically, you do not have to "change" the standard. However, in your reply brief, you should acknowledge that the standard was wrongly stated in your initial brief, and agree with the plaintiff that the standard is "abuse of discretion" and then redo your analysis of your appellate points under that standard instead of the De Novo standard.

Please let me know if this answers your question.
TexLaw, Attorney
Category: Legal
Satisfied Customers: 4430
Experience: Lead trial/International commercial attorney licensed 11 yrs
TexLaw and 5 other Legal Specialists are ready to help you
Customer: replied 4 years ago.

trying to Accept - Great Answer!!

 

..but am repeatedly sent to a page saying 'you don't have access to this page' !?