Georgia Appeals Law Guide / Appellate Law Treatise

Abuse of Discretion

Trial courts have discretion to decide certain issues as they see fit, and appeals courts will not overturn such decisions unless the trial court abused its discretion. The “abuse of discretion” standard of review is deferential to the trial court’s decision, while the “de novo” standard is not. Cases describe trial courts as having “latitude” to make certain decisions under the abuse of discretion standard. E.g., Hammond v. Hammond, 290 Ga. 518, 519, 520 (722 SE2d 729) (2012). Appeals courts say they will not “substitute [their] judgment for that of the trial court” on these issues. General Motors Corp. v. Conkle, 226 Ga. App. 34 (486 SE2d 180) (1997) (Blackburn, J., concurring specially). See generally Hon. Henry J. Friendly, Indiscretion About Discretion, 31 Emory L.J. 747 (1982).

“Discretion” has been defined as, “The latitude of decision within which a court or judge decides questions arising in a particular case according to the circumstances and according to the judgment of the court or judge, not expressly controlled by fixed rules of law….” Columbus Foundries, Inc. v. Moore, 175 Ga. App. 387, 388-89 (333 SE2d 212) (1985) (citation and quotation marks omitted). Generally, the types of matters reviewed under an abuse of discretion standard are legal decisions (as opposed to findings of fact, reviewed under the “any evidence” or “clearly erroneous” standard) of a type the trial court is in a better position than an appeals court to make. These include scheduling decisions, discovery matters, and many evidentiary rulings.

Any Evidence/Clearly Erroneous vs. Abuse of Discretion

While the “de novo” standard is relatively easy to understand, the distinction between “abuse of discretion” and “clearly erroneous” causes some confusion. The situation is not helped by the fact that, in Georgia, “clearly erroneous” and “any evidence” are held to be two descriptions of the same standard. In Reed v. State, 291 Ga. 10, 13 (727 SE2d 112) (2012) (citation omitted), the Supreme Court held that “‘abuse of discretion’…is at least slightly less deferential than the ‘any evidence’ test,” and correspondingly, “the ‘abuse of discretion’ standard is different from and not quite as deferential as the ‘clearly erroneous’ test.” As the Court further explained, different standards of review sometimes apply to different parts of a lower court’s decision, so that the appeals court will “accept factual findings unless they are clearly erroneous and review a trial court’s ultimate decision on the particular issue for abuse of discretion.” Id.

A useful illustration of the difference between “any evidence” and “abuse of discretion” arises in the context of attorney’s fees awards under OCGA § 9-15-14. Section 9-15-14(a) requires the trial court to award fees if a party asserts “any position with respect to which there existed such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept [it].” In other words, once the trial court makes a factual finding that there was or was not the required “complete absence of any justiciable issue,” the trial court’s decision on fees should follow automatically; the trial court has no discretion to award fees if there was a justiciable issue, or not to award fees if there was not a justiciable issue. Thus, the “any evidence” standard applies. On the other hand, Section 9-15-14(b) permits the trial court to award fees where an action “lacked substantial justification,” “was interposed for delay or harassment,” or was “unnecessarily expanded … by other improper conduct.” After making findings of fact relevant to these issues, the trial court then has discretion to award fees or not, and accordingly, a decision under Section 9-15-14(b) is reviewed for abuse of discretion. See generally Fulton County Sch. Dist. v. Hersh, 320 Ga. App. 808, 814-15 (740 SE2d 760) (2013).

This result might seem counterintuitive. Fee awards under Subsection (b) are subject to an “at least slightly less deferential” (Reed, 291 Ga. at 13) standard of review than fee awards under Subsection (a), even though Subsection (b) is permissive while Subsection (a) is mandatory. But one should bear in mind that multiple standards of review can apply to different parts of a trial court’s decision. Even under Subsection (b), the trial court’s underlying factual findings could be reviewed to determine whether any evidence supported them, and even under Subsection (a), the trial court’s interpretation of OCGA § 9-15-14 could be reviewed de novo. There are examples of Georgia appeals courts affirming awards under Subsection (b) while reversing them under Subsection (a). E.g., Hall v. Hall, 241 Ga. App. 690 (527 SE2d 288) (1999). Although “abuse of discretion” is less deferential than “any evidence,” the two standards are also simply “different.” Reed, 291 Ga. at 13.

Refusal to Exercise Discretion Constitutes Abuse

When a trial court has discretion to decide an issue, but applies a strict rule instead of exercising its discretion, this constitutes an abuse of discretion. For example, in Flanagan v. State, 218 Ga. App. 598 (462 SE2d 469) (1995), the trial court denied the defendant’s request for appointment of counsel based solely on the fact that the defendant’s income was too high, without also considering other discretionary factors, including his exercise of reasonable diligence in attempting to retain counsel. The Court of Appeals reversed, holding this was an abuse of discretion. “While the court does not have the duty to appoint counsel for defendants who do not meet the indigency standard, it does have the discretion to do so. And this discretion must be affirmatively exercised, based on the individual circumstances of each case; the court cannot simply deny all such requests as a matter of policy.” Id. at 600-01 (citation omitted).

Similarly, in Cottingham v. State, 206 Ga. App. 197 (424 SE2d 794) (1992), the trial court ordered that the defendant’s sentences would run consecutively to a sentence the defendant was already serving in Alabama, and stated, “‘it [is] not my policy to run any sentence concurrent with any other sentence unless I’ve imposed that other sentence…. I always make it a policy to impose any sentence consecutive to any sentence that they’re now serving.’” Id. at 198. The Court of Appeals vacated this portion of the trial court’s order. “Because of the broad discretion in sentencing vested in trial courts, it is the duty of the courts to exercise that discretion as to all aspects of sentences they impose…. We hold that a trial court’s use of a mechanical sentencing formula or policy as to any portion of a sentence amounts to a refusal to exercise its discretion and therefore is an abdication of judicial responsibility. Here, the trial court abdicated its judicial responsibility by basing a portion of its sentence on the rigid policy that it would never run a sentence it imposed concurrent with a sentence imposed by another court. In ordering that Cottingham’s sentence in this case run consecutive to the Alabama sentence based solely on the stated policy, the trial court failed to exercise its discretion.” Id. at 199. But see McCullough v. State, 317 Ga. App. 853, 855 (733 SE2d 36) (2012) (affirming trial court’s decision not to grant defendant first offender status, where trial judge had remarked “[y]eah, but I’m not going to do it” in response to counsel’s reminder that judge was required to consider first offender treatment, because, “considering the judge’s remarks as a whole,” the trial court had not “clearly” or “unambiguously” demonstrated a refusal to exercise discretion).

Matters Outside The Latitude of Discretion

A trial court can also abuse its discretion if it exercises discretion but reaches a decision that falls outside the range of permissible discretion. Evidentiary rulings such as the decision to exclude a witness, for example, are generally within the trial court’s discretion, but can be reversed for abuse of discretion. In Kroger Co. v. Walters, 319 Ga. App. 52 (735 SE2d 99) (2012), the trial court granted a motion to prevent a witness from testifying, even though the witness’s testimony would have been relevant, on the grounds that the witness had not been timely identified. The Court of Appeals reversed, holding the exclusion of the witness was an abuse of discretion. “In a civil suit it is an abuse of discretion to exclude a relevant witness solely on the ground that the witness was not identified during discovery or in a timely manner.” Id. at 60 (citing cases).

Examples of matters held to fall within trial court’s discretion:

Motion for Continuance

“Whether to grant a motion for continuance is entirely within the sound discretion of the trial court and will not be disturbed absent a clear abuse of discretion.” Greene v. State, 274 Ga. 220, 221 (3) (552 SE2d 834) (2001). See also Lawrence v. Direct Mortg. Lenders Corp., 254 Ga. App. 672 (563 SE2d 533) (2002) (holding, over dissenters’ objection, that denial of motion for continuance, where trial began 71 days after answer and defendant had been unrepresented by counsel, was not abuse of discretion).

Equitable Relief

“Equitable relief is at the trial court’s discretion and will not be overturned on appeal unless there is a manifest abuse of discretion.” Robbins v. Supermarket Equip. Sales, LLC, 290 Ga. 462, 464-65 (722 SE2d 55) (2012) (finding trial court abused discretion in granting equitable relief in trade secrets case).

Reopening Evidence

“Whether to reopen the evidence falls within the sound discretion of the trial court and the exercise of that discretion will not be disturbed on appeal absent an abuse of discretion.” Young v. State, 291 Ga. 627, 630 (732 SE2d 269) (2012) (citation and quotation marks omitted). See also Danenberg v. State, 291 Ga. 439 (729 SE2d 315) (2012) (finding no abuse of discretion where trial court refused to allow criminal defendant to testify, after both parties had agreed the evidence was closed).

Whether Defendant Denied Speedy Trial

See State v. Buckner, 292 Ga. 390 (738 SE2d 65) (2013).

Evidentiary Rulings Generally

“We review a trial court’s evidentiary rulings under an abuse of discretion standard of review.” Smith v. State, 284 Ga. 304, 306 (667 SE2d 65) (2008).

Exclusion or Admission of Expert Testimony

See Butler v. Union Carbide Corp., 310 Ga. App. 21 (712 SE2d 537) (2011).

Discovery Matters, Including Imposition of Sanctions

“Trial courts have broad discretion to control discovery, including the imposition of sanctions. Absent a clear abuse of discretion, a court’s exercise of that broad discretion will not be reversed.” Alston & Bird LLP v. Mellon Ventures II, L.P., 307 Ga. App. 640 (706 SE2d 652) (2011) (citation and quotation marks omitted). See also Deep South Constr., Inc. v. Slack, 248 Ga. App. 183 (546 SE2d 302) (2001) (affirming, as within trial court’s discretion, dismissal of case as sanction for failure to produce documents).

Child Custody and Visitation

“When child custody, including visitation, is an issue between parents, the trial court has very broad discretion, looking always to the best interest of the child.” Bishop v. Baumgartner, 292 Ga. 460, 462 (738 SE2d 604) (2013) (citation and quotation marks omitted).

Division of Marital Assets

See Hammond v. Hammond, 290 Ga. 518 (722 SE2d 729) (2012).

Award of Attorney’s Fees in Domestic Relations Case Under OCGA § 19-6-2

See Sponsler v. Sponsler, 287 Ga. 725 (699 SE2d 22) (2010).

Dismissal of Juror

See Hines v. State, 320 Ga. App. 854 (740 SE2d 786) (2013).

Motion to Add Party

See Smith v. Morris, Manning & Martin, LLP, 293 Ga. App. 153 (666 SE2d 683) (2008).

Dismissal for Lack of Prosecution

See Roberts v. Rountree, 180 Ga. App. 302 (348 SE2d 765) (1986).

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