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STANDARDS OF REVIEW

The Rules of the Court of Appeals mandate that Part Three of every appellant's brief "shall include a concise statement of the applicable standard of review with supporting authority for each issue presented in the brief." Court of Appeals Rule 27 (a) (3). Court Rules also obligate an appellee to include the standard of review "if different from that contended by the appellant." Court of Appeals Rule 27 (b) (2). The standard of review is a threshold question as to how much deference will be accorded to the decision of the trial court.

Please keep in mind, however, that the failure to have properly raised and preserved a particular issue in the trial court (or before the agency or administrative body making the decision) will almost always result in the waiver of that issue, thereby precluding appellate review and negating any need to consider the question of the proper standard of review. Very few issues can avoid the waiver rule.

Preservation of error. Issues and objections not raised to the trial court and ruled on by the trial court cannot be raised for the first time on appeal because they are deemed waived. City of Dalton v. Smith, 210 Ga. App. 858, 859 (1) (437 SE2d 827) (1993).

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Denial of motion to sever. The severance of a co-defendant's trial is within the sound discretion of the trial court whose decision will not be disturbed unless that discretion is abused. York v. State, 242 Ga. App. 281, 287 (3) (528 SE2d 823) (2000).

Denial of Batson motion. The trial court's denial of a Batson motion is reviewed under a "clearly erroneous" standard after according "great deference" to the trial court's determination. Johnson v. State, 266 Ga. 775, 777 (4) (470 SE2d 637) (1996).

Excusal of juror for cause. Reviewed for abuse of discretion but a trial court is expected to err on the side of caution by dismissing rather than trying to rehabilitate biased prospective jurors. Mulvey v. State, 250 Ga. App. 345, 348 (3) (551 SE2d 761) (2001).

Insanity defense. Reviewed as to whether the evidence, when construed most favorably for the State, would be sufficient to authorize a rational trier of fact to find that the defendant failed to prove by a preponderance of the evidence that he was insane at the time of the crime. Lawrence v. State, 265 Ga. 310, 311 (1) (454 SE2d 446) (1995).

Motion to suppress. When the facts are disputed, the trial court's ruling will be reviewed to determine whether the ruling was "clearly erroneous." However, when the evidence is uncontroverted and no question of credibility is presented, the trial court's application of the law to undisputed facts is subject to de novo appellate review. Vansant v. State, 264 Ga. 319, 320 (1) (443 SE2d 474) (1994).

Admission of custodial statement. After the trial court conducts a Jackson-Denno hearing and finds that the statement of a defendant "was freely and voluntarily made," that finding will be upheld on review unless it was clearly erroneous. Smith v. State, 265 Ga. 570, 571 (2) (459 SE2d 420) (1995). Thus, unless "clearly erroneous," a trial court's findings relating to the admissibility of an incriminating statement will be upheld on appeal. Daniel v. State, 268 Ga. 9, 10 (2) (485 SE2d 734) (1997).

Admission of similar transaction evidence. Absent an abuse of discretion, after the trial court conducts a similar transaction hearing that complies with Williams v. State, 261 Ga. 640, 641 (2) (409 SE2d 649) (1991), the trial court's decision to admit similar transaction evidence will not be disturbed. Brooks v. State, 230 Ga. App. 846, 847 (1) (498 SE2d 139) (1998).

Evidentiary ruling by the trial court. Unless the specific ground of objection is made at the time that the evidence is offered, the failure to do so results in the waiver of the right to appeal the trial court's ruling. Hunter v. State, 202 Ga. App. 195, 197 (3) (413 SE2d 526) (1991). And, an objection on a specific ground at trial waives any objection to that evidence on other grounds on appeal. Ross v. State, 231 Ga. App. 793, 801 (14) (499 SE2d 642) (1998).

Evidence-res gestae. A trial court's determination that evidence offered as part of res gestae is sufficiently informative and reliable as to warrant being considered by the jury will not be disturbed on appeal unless that determination is clearly erroneous. Park v. State, 230 Ga. App. 274, 279 (5) (495 SE2d 886) (1998).

Denial of motion for mistrial. Reviewed for abuse of discretion. Underwood v. State, 218 Ga. App. 530, 534 (3) (462 SE2d 434) (1995). But a defendant's failure to renew motion for mistrial after curative instruction waives right to appeal issue further. Spear v. State, 270 Ga. 628, 631 (5) (513 SE2d 489) (1999).

Denial of requested jury charge. When the charge sought is confusing, inappropriate, or not authorized by the evidence, the trial court does not err in denying the requested instruction. Buckalew v. State, 249 Ga. App. 134, 138 (5) (547 SE2d 355) (2001).

Jury charge on lesser included offense. Refusing to give written requested charge on a lesser included offense is not error when the written request is not adequately adjusted or tailored to the facts of the specific case or to the law. Brown v. State, 240 Ga. App. 321, 324 (4) (523 SE2d 333) (1999). Failure of defendant to object to charge as given or to reserve his right to object results in waiver of the right to object on appeal. Id.

Denial of directed verdict of acquittal. The standard of review for the denial of motion for directed verdict of acquittal is the same as for determining the sufficiency of the evidence to support a conviction. Hash v. State, 248 Ga. App. 456, 457 (1) (546 SE2d 833) (2001).

Criminal conviction. The standard is whether, after viewing the evidence in the light most favorable to the jury's verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Short v. State, 234 Ga. App. 633, 634 (1) (507 SE2d 514) (1998).

Criminal conviction - circumstantial evidence. The standard is whether a rational trier of fact could have found the defendant's guilt beyond a reasonable doubt and to the exclusion of every other reasonable hypothesis except that of the defendant's guilt. Inglett v. State, 239 Ga. App. 524, 527 (6) (521 SE2d 241) (1999).

Criminal contempt. The appellate standard of review of a criminal contempt conviction is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Barlow v. State, 237 Ga. App. 152, 157 (4) (513 SE2d 273) (1999).

Effectiveness of counsel. The standard of review of a trial court's determination as to the effectiveness of counsel is whether the trial court's findings are "clearly erroneous." Johnson v. State, 266 Ga. 380, 383 (2) (467 SE2d 542) (1996).

Defective indictment. Post-conviction review of an allegation of a defective indictment is one of harmless error. Bullard v. State, 242 Ga. App. 843, 849 (9) (530 SE2d 265) (2000).

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Selection of jurors. Reviewed for abuse of discretion but trial court is no longer permitted to rehabilitate jurors by using "loaded" questions to justify retaining biased jurors. Walls v. Kim, 250 Ga. App. 259 (549 SE2d 797) (2001).

Discovery rulings. Control over discovery including the imposition of sanctions is reviewed for "clear abuse of discretion." Time Warner Entertainment Co. v. Six Flags Over Georgia, 245 Ga. App. 334, 350 (3) (b) (537 SE2d 397) (2000).

Decision to bifurcate trial. Reviewed for clear and manifest abuse of discretion. Whitley v. Gwinnett County, 221 Ga. App. 18, 19 (2) (470 SE2d 724) (1996).

Evidentiary ruling. Decision to admit or exclude evidence including relevant evidence is reviewed for abuse of discretion. Dept of Transp. v. Mendel, 237 Ga. App. 900, 902 (2) (517 SE2d 365) (1999).

Qualification of witness as expert. Ruling will not be disturbed absent manifest abuse of discretion. Williamson v. Harvey Smith, Inc., 246 Ga. App. 745, 749 (5) (542 SE2d 151) (2000).

Construction of a contract. Reviewed de novo on appeal. Question of law for the trial court unless after the application of the rules of construction, the contract remains ambiguous. Sagon Motorhomes v. Southtrust Bank of Ga., N.A., 225 Ga. App. 348, 349 (484 SE2d 21) (1997).

Denial of motion for mistrial. Reviewed for abuse of discretion. Whitley v. Gwinnett County, 221 Ga. App. 18, 25 (11) (470 SE2d 724) (1996).

Submission of special verdict form to jury. Reviewed for abuse of discretion. Southern Water Technologies v. Kile, 224 Ga. App. 717, 719 (1) (481 SE2d 826) (1997).

Grant of summary judgment. On appeal of a grant of summary judgment, the appellate court must review the evidence de novo to determine whether the trial court erred in concluding that no genuine issue of material fact remains and that the party was entitled to judgment as a matter of law. Rubin v. Cello Corp., 235 Ga. App. 250 (510 SE2d 541) (1998).

Denial of motion for directed verdict. On appeal, the standard of review of the trial court's denial of a motion for directed verdict is the "any evidence" standard. F.A.F. Motor Cars v. Childers, 181 Ga. App. 821 (1) (354 SE2d 6) (1987).

Directed verdict or judgment notwithstanding the verdict. The standard of review of a directed verdict and a judgment n.o.v. is the same: a directed verdict is appropriate only when there is no conflict in the evidence as to any material issue, and the evidence introduced, construed most favorably to the party opposing the motion, demands a particular verdict. St. Paul Mercury Ins. Co. v. Meeks, 270 Ga. 136, 137 (1) (508 SE2d 646) (1998).

Denial of judgment n.o.v. The standard of appellate review for the denial of a motion for judgment n.o.v. is the "any evidence" test. Under this test, the determinative question is not whether the verdict and the judgment of the trial were merely authorized, but whether a contrary judgment was demanded. Signsation, Inc. v. Harper, 218 Ga. App. 141, 142 (2) (460 SE2d 854) (1995).

Motion for directed verdict/motion for new trial. Both as to a motion for directed verdict and motion for new trial based on the general grounds, the proper standard on appellate review is the "any evidence" test. The court construes the evidence most favorably towards the party opposing the motion. Jordan v. Stephens, 221 Ga. App. 8, 10 (2) (470 SE2d 733) (1996).

Jury verdict. After approval of a jury verdict by the trial court, the judgment entered thereon will not be disturbed on appeal if supported by any evidence, in the absence of any material error of law. Horan v. Pirkle, 197 Ga. App. 151, 153 (2) (397 SE2d 734) (1990).

Validity of verdicts. Since there is a presumption in favor of the validity of a verdict, all the evidence and every presumption and inference arising from the evidence must be construed most favorably toward upholding the verdict. Nationwide Mut. Fire Ins. Co. v. Wiley, 220 Ga. App. 442, 443 (2) (469 SE2d 302) (1996).

In the absence of legal error, an appellate court lacks jurisdiction to interfere with a verdict supported by some evidence even when the verdict may be against the preponderance of the evidence. Jeff Goolsby Homes Corp. v. Smith, 168 Ga. App. 218, 219 (1) (308 SE2d 564) (1983).

Motion for new trial. The grant or denial of motion for new trial is a matter within the sound discretion of the trial court and will not be disturbed if there is "any evidence" to authorize the trial court's ruling. Professional Consulting Svcs. of Ga. v. Ibrahim, 206 Ga. App. 663, 665 (1) (426 SE2d 376) (1992).

In reviewing an order on a motion for new trial, appellate courts do not weigh the evidence or give an opinion on where the greater weight of the evidence lies but determine merely whether the record contains sufficient evidence to authorize the trial court's judgment. Milam v. Attaway, 195 Ga. App. 496, 497 (1) (393 SE2d 753) (1990).

Bench trials. The trial court's factual findings will not be set aside unless clearly erroneous, meaning that they will not be disturbed when there is any evidence to sustain them. Sam's Wholesale Club v. Riley, 241 Ga. App. 693 (527 SE2d 293) (1999).

Trial court's findings of fact. Reviewed under clearly erroneous standard. City of McDonough v. Tusk Partners, 268 Ga. 693, 696 (492 SE2d 206) (1997).

Question of law. De novo or independent review on appeal. Since no deference is owed to the trial court's ruling on a legal question, the "plain legal error" standard of review is applied. Suarez v. Halbert, 246 Ga. App. 822, 824 (1) (543 SE2d 733) (2000).

Damage awards. A reviewing court will not interfere with a jury's award of damages unless the amount is so small or so excessive that it justifies an inference of gross mistake or undue bias. Green v. Proffitt, 248 Ga. App. 477, 478 (1) (545 SE2d 623) (2001).

FELA damages. The jury's determination of FELA damages is otherwise inviolate, absent an award so excessive or inadequate as to shock the judicial conscience and raise an irresistible inference that passion, prejudice or another improper cause invaded the trial. Norfolk Southern R. Co. v. Jones, 219 Ga. App. 602, 608 (4) (a) (466 SE2d 260)(1995).

Attorney fees under OCGA § 13-6-11. Reviewed under the any evidence standard. City of Warner Robins v. Holt, 220 Ga. App. 794, 796 (1) (470 SE2d 238) (1996).

Attorney fees under OCGA § 9-15-14. Under subsection (a), reviewed under the any evidence standard. Under subsection (b), reviewed for abuse of discretion. Bankhead v. Moss, 210 Ga. App. 508, 509 (1) (436 SE2d 723) (1993).

Motion to open default. Reviewed for abuse of discretion, meaning that the trial court's ruling will stand unless there is no evidence to support a finding that the statutory grounds set forth in OCGA § 9-11-55 were met. K-Mart Corp. v. Hackett, 237 Ga. App. 127, 128 (1) (514 SE2d 884) (1999).

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Termination of parental rights. The standard of review is whether, after viewing the evidence in a light most favorable to the appellee, any rational trier of fact could have found by clear and convincing evidence that the natural parent's rights should have been lost. In the Interest of C. G., 235 Ga. App. 23, 24 (508 SE2d 246) (1998).

Change of child custody. In determining whether a material change of condition has occurred, the trial court is vested with discretion that will not be controlled by appellate courts absent abuse. Such decision will be affirmed when there is any reasonable evidence to support it. Scott v. Scott, 227 Ga. App. 346, 348 (1) (489 SE2d 117) (1997).

Appeal of lower court's review of administrative agency decision. Where the lower court's review of local agency or governing body is limited to facts presented to local agency or governing body, the question for appellate court is whether there is evidence to support the decision of the local agency or governing body, and not whether there is evidence to support lower court decision. Emory Univ. v. Levitas, 260 Ga. 894, 898 (1) (401 SE2d 691) (1991).

Administrative decision-Zoning. The superior court is authorized only to determine whether the zoning board acted beyond the discretionary powers conferred upon it, abused its discretion, or acted arbitrarily or capriciously. City of Atlanta Bd. of Zoning Adjustment v. Kelly, 238 Ga. App. 799, 801(1) (520 SE2d 269) (1999). On appeal, review is limited to whether the record supports the initial decision of the local governing body. Beugnot v. Coweta County, 231 Ga. App. 715, 716 (500 SE2d 28) (1998).

Workers' compensation case. Under the any evidence standard of review, the findings of the Appellate Division of the State Board must be affirmed by the superior court and by the Court of Appeals when supported by any evidence. Georgia-Pacific Corp. v. Wilson, 240 Ga. App. 123, 126 (1) (522 SE2d 700) (1999).

A decision by the full board on a request for change of physician is discretionary. The proper standard of review for such a decision is whether the board acted arbitrarily or in excess of its powers. Franchise Enterprises, Inc. v. Sullivan, 190 Ga. App 767 (380 SE2d 68) (1989).

Decision of State Personnel Board. The standard of judicial review of a decision of the State Personnel Board is set forth in OCGA § 45-20-9 (m). State Personnel Bd. v. Morton, 198 Ga. App. 845, 847 (2) (403 SE2d 455) (1991).

Special master's award. The trial court, in an appeal from an award of a special master, sits as the trier of fact and thus the "any evidence" rule is applied in reviewing the judgment entered by the trial court. Wrege v. Cobb County, 186 Ga. App. 512, 515 (2) (367 SE2d 817) (1988).

Arbitrator's decision. Power to vacate an arbitration award is severely limited and a reviewing court is bound to confirm an arbitration award unless one of the four statutory grounds set forth in OCGA § 9-9-13 (b) is found to exist. Greene v. Hundley, 266 Ga. 592, 596 (2) (468 SE2d 350) (1996). An appellate court is prohibited from considering the sufficiency of the evidence underlying an arbitration award. Id. at 596-597.

Denial of stay. Power to stay proceedings is discretionary power so reviewed for abuse of that discretion. Francis v. Reynolds, 215 Ga. App. 418 (450 SE2d 876) (1994).

Denial of release from civil commitment. The standard is whether after reviewing the evidence in the light most favorable to the State, a rational trier of fact could have found that the defendant failed to prove by a preponderance of evidence that he was sane. Nagel v. State, 264 Ga. 150 (442 SE2d 446) (1994).

This list is certainly not exhaustive and is merely intended as an aid. Since the law is in a constant state of flux and continues to evolve and change, please remember to shepardize all cases including these whenever you incorporate them into your briefs. This list was last updated in 9/01.


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