Georgia Appeals Law Guide / Appellate Law Treatise

De Novo

Of all standards of review, “de novo” is the least deferential to the trial court; indeed, it gives “no deference” at all to the trial court’s decision. Jordan v. State, 322 Ga. App. 252, 255 (744 SE2d 447) (2013); Clark v. Clark, 293 Ga. App. 309, 309 (667 SE2d 103) (2008). When an appeals court reviews an issue de novo, the trial court’s decision on the issue has no effect on the appeals court’s decision. In effect, the appeals court treats the issue as if the trial court had not addressed it at all.

The types of issues subject to de novo review are typically those that the appeals court is in a position to review as good as or better than the trial court’s position. For example, if the asserted error is in the trial court’s interpretation of a statute, the appeals court is at least as capable of interpreting the statute as the trial court. Therefore, de novo review applies. On the other hand, deferential standards of review generally apply when the trial court is in a better position to make a decision than the appeals court, such as when the credibility of a witness is involved.

Stated most simply, appeals courts “defer to the trial court’s findings of fact, but … apply the law to those facts de novo.” Ellington v. State, 292 Ga. 109, 115 (735 SE2d 736) (2012). However, distinguishing which standard of review applies to which issue is not always straightforward. See, e.g., Miller v. State, 288 Ga. 286 (702 SE2d 888) (2010) (decision split 4-3 on application of clearly erroneous and de novo standards to grant of motion to suppress).

Questions of law

Generally, questions of law are subject to de novo review. “[E]rroneous applications of law to undisputed facts, as well as decisions based on erroneous theories of law, are subject to the de novo standard of review.” The Home Depot v. McCreary, 306 Ga. App. 805, 809 (703 SE2d 392) (2010) (citation and quotation marks omitted).

Interpretation of contracts

Interpretation of a contract is considered a question of law, and therefore subject to de novo review. See Deep Six, Inc. v. Abernathy, 246 Ga. App. 71, 73 (538 SE2d 886) (2000).

Summary judgment

“When reviewing the grant or denial of a motion for summary judgment, this court conducts a de novo review of the law and the evidence.” Hopkinson v. Labovitz, 263 Ga. App. 702, 703 (589 SE2d 255) (2003). See also id. at 705 (“‘Abuse of discretion’ is not the standard by which we review a trial court’s ruling on a motion for summary judgment; rather, we review the law and evidence de novo.”).

Appeal to Superior Court

Under OCGA § 5-3-29, appeals to the Superior Court are de novo unless otherwise provided. See generally Long v. Greenwood Homes, Inc., 285 Ga. 560 (679 SE2d 712) (2009). In Long, the Supreme Court held that, after appealing a magistrate court judgment to the superior court, the appellant could then voluntarily dismiss the case, with the effect of vacating the magistrate court judgment (rather than reinstating it).

“Plain legal error”

The Georgia Court of Appeals has often used the phrase “plain legal error” synonymously with “de novo” to describe the standard of review on questions of law. See, e.g., Amstead v. McFarland, 279 Ga. App. 765, 769 (632 SE2d 707) (2006) (“Because the trial court’s order does not reflect that any evidence was taken at the hearing on the fee issue … we use the plain legal error standard of review here.”). In Jordan v. State, 322 Ga. App. 252 (744 SE2d 447) (2013), a three-judge panel of the Court of Appeals recommended against the use of this phrase (which has never taken hold in the Georgia Supreme Court). As Judge McFadden explained, “plain legal error” is confusingly similar to “plain error,” a completely different concept. Id. at 255. Further, the phrase “wrongly implies that … we would let stand a legal error that is not ‘plain.’” Id. at 256. “We conclude that the phrase ‘plain legal error’ should not be used to designate the de novo standard of review. Instead, we recommend describing the standard of review applicable to questions of law as simply ‘de novo’—as in, ‘we review questions of law de novo.’” Id.

Denial of motion to recuse pursuant to USCR 25.3

The Georgia Supreme Court’s decision in Mayor & Aldermen of Savannah v. Batson–Cook Co., 291 Ga. 114 (728 SE2d 189) (2012), illustrates the distinction between the situations where de novo and abuse of discretion standards of review apply. In that case, the trial judge denied a motion to recuse pursuant to Uniform Superior Court Rule 25.3. That rule requires the trial judge to refer a motion to recuse to another judge where “recusal would be authorized if some or all of the facts set forth in the affidavit [supporting the motion] are true.” The Court of Appeals reviewed the trial court’s decision for abuse of discretion, but the Supreme Court held that a de novo standard of review applied. The Court found that “USCR 25.3 does not authorize a discretionary determination on the part of the trial judge,” because whether “the facts set forth in the affidavit, when taken as true, would authorize recusal” is a question of law. Id. at 119. The Court distinguished cases such as Central of Georgia Railroad Co. v. Lightsey, 198 Ga. App. 59 (400 SE2d 652) (1990), in which an abuse of discretion standard was properly applied because the threshold requirements of USCR 25.3 were not at issue.