3d DCA Watch — Wait Wait Don’t Tell Me — What’s the Right Standard of Review Again?

Alrighty it’s a fine, fit Wednesday and those fun-filled judges down by the con-creete highway have been busy busy busy, so let’s jump right in and see what our favorite rogue bunch of robed coffee-swillers have been up to, yes it’s that time of the week when mandates issue, reversals ensue, and PCAs sprout like Bic lighters at a Journey concert, oh hail baby it’s time for 3d DCA Watch:

RKR Motors v. Associated Uniform Rental:

Shorter Judge Rothenberg: enforcing a liquidated damages clause is really a matter of equity. That means, if it feels right, do it! If it doesn’t, don’t.Oh, and have fun trial judges!!

Mastec v. Cue:

Even shorter Judge Rothenberg: mediated settlements have to be in writing, or else they don’t count. Also, water is wet and the sky is blue.What else:

Ryder v. Davis:

This one made me laugh. It’s hard enough to figure out how to analyze forum non issues under Kinney. Then you add the standard of review issue and all hail breaks loose.Abuse of discretion, right? Not so fast, said the very bearded Judge Sorondo in a concurrence that has had predictably unintended consequences. Basically, if the trial court didn’t analyze all the Kinney factors, then we get to analyze the ones the trial court missed under a de novo review.Makes sense, right? Well, no not really, but let’s let Judge Cope explain:

The standard of review is abuse of discretion. That is the standard stated in Kinney System, Inc. v. Continental Insurance Co., 674 So. 2d 86, 90-92 (Fla. 1996), and is the standard of review specified in the Court Commentary to Rule 1.061 (“Orders granting or denying dismissal for forum non conveniens are subject to appellate review under an abuse-of-discretion standard.”).There has been some confusion because this court has recognized a limited exception where (a) the trial court did not address all of the Kinney factors, and (b) this court addressed the remaining Kinney factors for the first time on appeal. In that specific scenario, we have said that our court’s consideration of the previously unaddressed Kinney factors is de novo.

This limited exception was initially described in Judge Sorondo’s concurring opinion in Aerolineas Argentinas, S.A. v. Gimenez, 807 So. 2d 111, 115-17 (Fla. 3d DCA 2002). In that case the trial court had addressed only the first Kinney factor, and concluded that there was no adequate alternative forum. The trial court denied the motion and did not address the remaining three Kinney factors.

Relying on Judge Sorondo’s concurrence, this court repeated the point in Kawasaki Motors Corp. v. Foster, 899 So. 2d 408, 410-11 (Fla. 3d DCA 2005): “[R]eview of the Kinney standard has evolved into an abuse of discretion/de novo standard, depending on the extent of the trial judge[’]s analysis and whether the appellate record is sufficient to allow the reviewing court to reach its own conclusions.”

So I think it’s pretty clear that Judge Cope is saying it’s all Judge Sorondo’s fault. (I’m kidding, I’m kidding!)Still, since Rudy has moved onto fancy private digs I guess Judge Cope will have to clean it all up:

Because the discussions in Kawasaki, WEG, and Bacardi are somewhat general, our pronouncements have led to a misimpression that this court is following a de novo standard of review in any forum non conveniens case in which the factual record is undisputed. That is not so.

As already stated, the Florida Supreme Court has specified that the standard of review is abuse of discretion, and we follow that standard. The only exception—a limited one—is when the trial court did not address (and therefore did not exercise any discretion) regarding one or more of the Kinney factors. In that situation, this court has the latitude to address the previously-unaddressed Kinney factors for the first time on appeal in the interest of judicial economy and efficiency.

There. Do I have to explain it all again to you numbskulls? It’s abuse of discretion, except when it’s not. How hard is that to understand? See above, then wash, rinse, and repeat.

Sheesh, I don’t know how to make it any clearer, really I don’t. You know what, I’m going to have some more of that free 3d DCA coffee and forget you guys…..