ARTURO J. PULLES

v.

MICHAEL ONORATO

Third District Court of Appeal State of Florida

Opinion filed December⁴, 2024. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-2106 Lower Tribunal No. 21-14952 ________________

Arturo J. Pulles, Appellant,

vs.

Michael Onorato, Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Lourdes Simon, Judge.

Corredor & Husseini, P.A., and Maria E. Corredor, for appellant.

Cotzen Law, P.A., and Michael L. Cotzen, for appellee.

Before EMAS, LOBREE and GOODEN, JJ.

EMAS, J.

Relatedly, subdivision (e) provides: Waiver. A party who fails to serve a demand as required by this rule waives trial by jury. If waived, a jury trial may not be granted without the consent of the parties, but the court may allow an amendment in the proceedings to demand a trial by jury or order a trial by jury on its own motion. A demand for trial by jury may not be withdrawn without the consent of the parties.

Under the rule, the trial court has the discretion to grant a late-filed demand for a jury trial where the moving party meets its burden of demonstrating that it would “impose neither an injustice upon the adversary nor an unreasonable inconvenience upon the court in the performance of its

Case No. 3D23-2106

GOODEN, J. (specially concurring) I write separately to address the standard of review that persists—or, rather, the standards of review that persist—in this area of the law. It appears that this stems from Wertman v. Tipping, 166 So. 2d 666 (Fla. 1st DCA 1964). The Wertman Court mentions both abuse of discretion and clearly erroneous. Compare id. at 667 (“When a motion for jury trial is made after lapse of the ten day period, the trial court is called upon to exercise a sound judicial discretion in determining if the ends of justice require the granting of the motion. If it is plain that justice would be denied if the motion is not granted, the trial judge would have abused his discretion and committed reversible error in denying such motion.”), with id. (“The presumption is in favor of the correctness of the order. For this court to overthrow it, the appellant must show that it is clearly erroneous.”). In my view, these are two different standards of review, and they apply in different contexts. The abuse of discretion standard generally applies to procedural, evidentiary, or equitable decisions of the trial court. See Rachel Canfield, Raise Your Standards: A Practitioner’s Guide to the Effective Use of Appellate Standards of Review, Fla. B.J., Nov. 2018, at 39, 42. These decisions are discretionary in nature.

Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980). On the other hand, clearly erroneous is traditionally a standard of review used by federal appellate courts. It applies to review findings of fact by the trial court in a non-jury trial. See Fed. R. Civ. P. 52(a)(6) (“Findings of fact, whether based on oral or other evidence, must not be set aside

Miller v. Mercy Hosp., Inc., 720 F. 2d 356, 361 (4th Cir. 1983). In Florida state courts, the clearly erroneous standard of review applies in limited circumstances—to a trial court’s factual findings based on undisputed evidence.¹ The Florida Supreme Court explained:

8 A finding of fact by the trial court in a non-jury case will not be set aside on review unless there is no substantial evidence to sustain it, unless it is clearly against the weight of the evidence, or unless it was induced by an erroneous view of the law. A finding which rests on conclusions drawn from undisputed 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.

Holland v. Gross, 89 So. 2d 255, 258 (Fla. 1956) (internal citations omitted).

Stated simply, the clearly erroneous standard applies when reviewing findings of fact based on undisputed evidence. See, e.g., Chubb Custom Ins. Co. v. U.T. Invs., LLC, 113 So. 3d 1017, 1018 (Fla. 5th DCA 2013); Vietinghoff v. Miami Beach Fed. Credit Union, 657 So. 2d 1208, 1209 (Fla. 3d DCA 1995); Bradley v. Waldrop, 611 So. 2d 31, 32 (Fla. 1st DCA 1992); Greco v. Tampa Wholesale Co., 417 So. 2d 994, 998 (Fla. 2d DCA 1982); In right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”); Strachan v. State, 199 So. 3d 1022, 1024 (Fla. 4th DCA 2016) (citing federal law and applying clearly erroneous standard to whether an individual has a subjective expectation of privacy). While beyond the scope of this concurrence, it would be worthwhile to see whether the original public meaning of Article I, Section 12 includes adopting the federal standard of review, or simply the scope of the rights involved.

9 re Donner’s Estate, 364 So. 2d 742, 748 (Fla. 3d DCA 1978). Whereas the competent, substantial evidence standard applies when reviewing findings of fact based on disputed evidence. See, e.g., Coba v. Tricam Indus., Inc., 164 So. 3d 637, 643 (Fla. 2015) (jury verdicts); Sochor v. State, 883 So. 2d 766, 774 (Fla. 2004) (evidentiary hearings); Swanigan v. Dobbs House, 442 So. 2d 1026, 1027 (Fla. 1st DCA 1983) (final worker’s compensation orders); § 120.68(7)(b), Fla. Stat. (administrative decisions).² In any event, I do not believe the clearly erroneous standard of review applies to this type of ruling. The trial court here did not conduct an evidentiary hearing on this issue. There was no evidence presented, and

10 the trial court did not make factual findings. See generally Padavano, supra, § 19:6 (“The special considerations normally governing the review of factual determinations are not present if the trial judge has made a decision solely on written evidence.”). This was a general procedural hearing. The parties simply made argument. Indeed, it occurred at the very end of the hearing on plaintiff’s motion for summary judgment. It is my opinion that only the abuse of discretion standard would apply under these circumstances. Based on the record before us, the trial court did not abuse its discretion.