Castlewood Int'l Corp. v. LaFleur, 322 So. 2d 520 (Fla. 1975). · Go Syfert
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Castlewood Int'l Corp. v. LaFleur, 322 So. 2d 520 (Fla. 1975). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …a heavy burden rests on appellants who seek to overturn an order granting a new trial, and any abuse of discretion must be patent from the record. at p. 522 ≈ altered
cited 2× by 2 distinct cases, last quoted 2002 · …discretion is abused only where no reasonable person would take the view adopted by the trial court. at p. 522 ✓
107 citation events (19 in the last 25 years) across 4 distinct courts.
Strongest positive: Rierson v. Deveau (fladistctapp, 2019-03-20)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 40 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Rierson v. Deveau
Fla. Dist. Ct. App. · 2019 · signal: see also · quote attribution · 1 verbatim quote · confidence high
a heavy burden rests on appellants who seek to overturn an order granting a new trial, and any abuse of discretion must be patent from the record.
discussed Cited as authority (verbatim quote) Rierson v. Deveau
Fla. Dist. Ct. App. · 2019 · signal: see also · quote attribution · 1 verbatim quote · confidence high
a heavy burden rests on appellants who seek to overturn an order granting a new trial, and any abuse of discretion must be patent from the record.
examined Cited as authority (verbatim quote) Ricks v. Loyola
Fla. · 2002 · quote attribution · 1 verbatim quote · confidence high
mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial. the trial judge was in a much better position than an appellate court to pass on the ultimate correctness of the jury's verdict.
discussed Cited as authority (rule) Esca Investment, Inc. v. Tarraza
Fla. Dist. Ct. App. · 2018 · confidence medium
Corp. v. LaFleur, 322 So. 2d 520, 522 (Fla. 1975) (observing: “Since at least 1962, it has been the law of Florida that a trial court’s discretion to grant a new trial is ‘of such firmness that it would not be disturbed except on clear showing of abuse . . . .’ Cloud v. Fallis, 110 So. 2d 669, 672 (Fla. 1959).
discussed Cited as authority (rule) Choy v. Faraldo
Fla. Dist. Ct. App. · 2013 · confidence medium
See Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005) (“[Florida appellate courts] are also mindful of the superior vantage point enjoyed by the trial judge, which this court and other appellate courts have traditionally deferred to when considering a motion for new trial.” (citation omitted)); Higgins, 788 So.2d at 1006 (“A heavy burden rests on appellants who seek to overturn such a ruling [granting a new trial], and any abuse of discretion must be patent from the record.”) (quoting Castlewood Int’l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975)).
cited Cited as authority (rule) Thigpen v. United Parcel Services, Inc.
Fla. Dist. Ct. App. · 2008 · confidence medium
Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975).
cited Cited as authority (rule) Tanner v. Beck
Fla. Dist. Ct. App. · 2005 · confidence medium
Castlewood, 322 So.2d at 522 (citations and footnote omitted).
discussed Cited as authority (rule) Hahn v. Medeiros
Fla. Dist. Ct. App. · 2003 · confidence medium
The court in Brown "reiterated that a grant of a new trial is of such firmness that it should not be disturbed except upon a clear showing of abuse" and that "an appellant seeking to overturn such a ruling has a heavy burden and any abuse of discretion by the trial court must be clear from the record." Id. at 496 (citing Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975)).
discussed Cited as authority (rule) Manhardt v. Tamton
Fla. Dist. Ct. App. · 2002 · confidence medium
Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975) (citing Cloud, 110 So.2d at 673 ). "`[D]iscretion is abused only where no reasonable [person] would take the view adopted by the trial court.'" Manasse, 707 So.2d at 1111 (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)); see also Ramey v. Winn Dixie Montgomery, Inc., 710 So.2d 191, 192 (Fla. 1st DCA 1998) (quoting DeLong v. Wickes Co., 545 So.2d 362, 366 (Fla. 2d DCA 1989)).
discussed Cited as authority (rule) Manhardt ex rel. Manhardt v. Tamton
Fla. Dist. Ct. App. · 2002 · confidence medium
Castlewood Int’l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975) (citing Cloud, 110 So.2d at 673 ). “ ‘[Discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ ” Manasse, 707 So.2d at 1111 (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)); see also Ramey v. Winn Dixie Montgomery, Inc., 710 So.2d 191, 192 (Fla. 1st DCA 1998) (quoting DeLong v. Wickes Co., 545 So.2d 362, 366 (Fla. 2d DCA 1989)).
discussed Cited as authority (rule) State Farm Fire and Casualty Co. v. Higgins
Fla. Dist. Ct. App. · 2001 · confidence medium
As noted by this court in Suarez-Burgos v. Morhaim, 745 So.2d 368, 370 (Fla. 4th DCA 1999), rev. den., 767 So.2d 461 (Fla.2000): In Castlewood International Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975), the court explained the standard of review of such decisions: Since at least 1962, it has been the law of Florida that a trial court's discretion to grant a new trial is "of such firmness that it would not be disturbed except on clear showing of abuse...." Cloud v. Fallis, 110 So.2d 669, 672 (Fla.1959).
discussed Cited as authority (rule) Suarez-Burgos v. Morhaim
Fla. Dist. Ct. App. · 1999 · confidence medium
In Castlewood International Corp. v. La-Fleur, 322 So.2d 520, 522 (Fla.1975), the court explained the standard of review of such decisions: Since at least 1962, it has been the law of Florida that a trial court's discretion to grant a new trial is "of such firmness that it would not be disturbed except on clear showing of abuse. ..." Cloud v. Fallis, 110 So.2d 669, 672 (Fla.1959).
discussed Cited as authority (rule) Brown v. Estate of Stuckey
Fla. · 1999 · confidence medium
In Castlewood International Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975), we reiterated that a grant of a new trial is of such firmness that it should not be disturbed except upon a clear showing of abuse.
discussed Cited as authority (rule) Nigro v. Brady
Fla. Dist. Ct. App. · 1999 · confidence medium
Cloud v. Fallis, 110 So.2d 669 (Fla.1959). [2] An appellate court does not have that same broad discretion, which is logical, because the trial judge is "in a much better position than an appellate court to pass on the ultimate correctness of the jury's verdict." Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975).
cited Cited as authority (rule) Leyva v. Samess
Fla. Dist. Ct. App. · 1999 · confidence medium
See Baptist Mem'l Hosp., Inc. v. Bell, 384 So.2d 145, 146 (Fla. 1980); Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla. 1975); Cloud v. Fallis, 110 So.2d 669, 672-73 (Fla. 1959).
discussed Cited as authority (rule) State v. Spaziano
Fla. · 1997 · confidence medium
See generally Poole v. Veterans Auto *178 Sales & Leasing Co., 668 So.2d 189, 191 (Fla.1996); Ford Motor Co. v. Kikis, 401 So.2d 1341, 1342 (Fla.1981); Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla. 1975). [2] When we examine the lower court's determination for an abuse of discretion, we find none.
cited Cited as authority (rule) Hagan v. Sun Bank of Mid-Florida
Fla. Dist. Ct. App. · 1996 · confidence medium
Therefore, to overturn such a ruling, any abuse of discretion must be "patent from the record." Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla. 1975).
cited Cited as authority (rule) State v. Soukup
Fla. Dist. Ct. App. · 1994 · confidence medium
State v. Hamilton, 574 So.2d 124, 126 (Fla.1991); Baptist Memorial Hosp., Inc. v. Bell, 384 So.2d 145 (Fla.1980); Castlewood Int’l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975).
discussed Cited as authority (rule) Ryan v. ATLANTIC FERTILIZER & CHEM.
Fla. Dist. Ct. App. · 1987 · confidence medium
"Mere disagreement from an appellate prospective is insufficient as a matter of law to overturn a trial court on the need for a new trial." Castlewood International Corp. v. LaFleur, 322 So.2d 520, 522 (Fla. 1975).
discussed Cited as authority (rule) Aetna Casualty & Surety Co. v. Kaufman
Fla. Dist. Ct. App. · 1985 · confidence medium
Edwards Construction Co. * Noting that a trial judge is in a “much better position than an appellate court to pass on the ultimate correctness of the jury’s verdict,” Pyms v. Meranda, 98 So.2d 341, 343 (Fla.1957); Staib v. Ferrari, Inc., 391 So.2d 295, 297 (Fla. 3d DCA 1980), citing Castlewood International Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975), we affirm the trial court’s order.
cited Cited as authority (rule) Sosa v. Knight-Ridder Newspapers, Inc.
Fla. · 1983 · confidence medium
Castlewood International Corp. v. LaFleur, 322 So.2d 520, 523 (Fla. 1975) (Overton, J., concurring).
discussed Cited as authority (rule) Smith v. Vining
Fla. Dist. Ct. App. · 1981 · confidence medium
In Castlewood International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla.1976), the principle with respect to an order granting a new trial was reiterated: Since at least 1962, it has been the law of Florida that a trial court’s discretion to grant a new trial is “of such firmness that it would not be disturbed except on clear showing of abuse . . .. ” Cloud v. Fallis, 110 So.2d 669, 672 (Fla.1959).
discussed Cited as authority (rule) McInerney Ford, Inc. v. LeMire
Fla. Dist. Ct. App. · 1981 · confidence medium
As was said there and in Castlewood International Corp. v. LaFleur, 322 So.2d 520, 524 (Fla.1976) and Cloud v. Fallis, 110 So.2d 669 (Fla.1969), cited in that case the burden is upon the appellant to show clearly an abuse of discretion and that burden is greater than the one placed upon an appellant challenging an order denying a new trial.
discussed Cited as authority (rule) Staib v. Ferrari, Inc.
Fla. Dist. Ct. App. · 1980 · confidence medium
The trial judge "[is] in a much better position than an appellate court to pass on the ultimate correctness of the jury's verdict." Castlewood International Corp. v. LaFleur, 322 So.2d 520, 522 (Fla. 1975) (citation omitted).
cited Cited as authority (rule) Nesbitt v. Auto-Owners Ins. Co.
Fla. Dist. Ct. App. · 1980 · confidence medium
Castlewood Int'l Corp. v. La Fleur, 322 So.2d 520, 524 (Fla. 1976); Cloud v. Fallis, 110 So.2d 669 (Fla. 1959).
cited Cited as authority (rule) Michaux v. May
Fla. Cir. Ct., Broward Cty. · 1979 · confidence medium
Castlewood International Corporation v. LaFleur, 322 So.2d 520, 523 (Fla. 1975), citing Benjamin Cardozo, The Nature of the Judicial Process, Yale University Press, 1921.
cited Cited as authority (rule) Parker v. Florida First National Bank
Fla. Dist. Ct. App. · 1978 · confidence medium
Castlewood International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla.1975) (Overton, J., concurring).
discussed Cited as authority (rule) Wackenhut Corp. v. Canty (2×)
Fla. · 1978 · confidence medium
Castlewood International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla. 1975).
discussed Cited as authority (rule) Weems v. Dawson
Fla. Dist. Ct. App. · 1977 · confidence medium
Furthermore, judicial discretion has been defined as: "`The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court.'" Castleweed International Corporation v. LaFleur, 322 So.2d 520, 522 (Fla. 1976).
discussed Cited "see" Sullivan v. Kanarek (2×)
Fla. Dist. Ct. App. · 2012 · signal: see · confidence high
See Manhardt v. Tamton, 832 So.2d 129, 131 (Fla. 2d DCA 2002) (“The showing necessary to overturn the denial of a motion for new trial is not as great as that necessary to overturn an order granting such a motion.” (citing Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975))).
discussed Cited "see" Allstate Property & Casualty Insurance Co. v. Flores
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
In such a case, the appellant faces a “heavy burden,” and must establish that the trial court’s abuse of discretion is “clear from the record.” Id. at 496 ; see Castlewood Int’l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975) (holding that there must be a strong showing to upset an order granting a new trial, a heavy burden rests on those seeking to overturn such an order, and any abuse of discretion must be patent from the record).
cited Cited "see" La Costa Beach Club Resort Condominium Ass'n v. Carioti
Fla. Dist. Ct. App. · 2010 · signal: see · confidence high
See Castlewood Int'l Corp. v. LaFleur, 322 So.2d 520, 522 (Fla.1975). 4 .
discussed Cited "see" LRX, INC. v. Horizon Associates Joint Venture
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Castlewood Int'l Corp. v. La Fleur, 322 So.2d 520 (Fla.1975)(recognizing a stronger showing of abuse of discretion is required to overturn an order granting a new trial then is required to overturn an order denying a new trial); State Farm Fire and Cas.
cited Cited "see" Till v. Enterprise Leasing Co.
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla.1975).
discussed Cited "see" VISTA CENTRE v. Unlike Anything, Inc. (2×)
Fla. Dist. Ct. App. · 1992 · signal: see · confidence high
See Castlewood International Corp. v. LaFleur, 322 So.2d 520 (Fla. 1975).
cited Cited "see" State v. Burch
Fla. Cir. Ct. · 1989 · signal: see · confidence high
See Castlewood Int’l Corp v LaFleur, 322 So.2d 520 (Fla. 1975); Padovano, Florida Appellate Practice § 5.5 (1988).
cited Cited "see" Springfield Life Ins. Co. v. Edwards
Fla. Dist. Ct. App. · 1979 · signal: see · confidence high
See Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla. 1975).
discussed Cited "see" Florida East Coast Railway Co. v. Hanson
Fla. · 1978 · signal: see · confidence high
See Castlewood International Corp. v. LaFleur, supra; Hendricks v. Dailey, 208 So.2d 101 (Fla.1968); Russo v. Clark, 147 So.2d 1 (Fla.1962); Bennett v. Jacksonville Expressway Authority, supra. In the case sub judice, the trial judge was motivated in granting the motion for new trial on the belief “that the jury verdict and Judgment entered thereon was unconscionable and not based upon the evidence.” In effect, he disagreed with the jury based on his perception that the award of damages to Mrs. Hanson individually did not reflect the relative fault of the railway company and Mr. Hanson.
cited Cited "see, e.g." Palm Beach County v. French
Fla. Dist. Ct. App. · 1993 · signal: see also · confidence low
See also Castlewood Int’l Corp. v. LaFleur, 322 So.2d 520 (Fla.1975).
cited Cited "see, e.g." State Farm Mutual Automobile Insurance Co. v. Gage
Fla. Dist. Ct. App. · 1992 · signal: see, e.g. · confidence low
See, e.g., Castlewood International Corporation v. LaFleur, 322 So.2d 520 (Fla.1975); Weems v. Dawson, 352 So.2d 1196 (Fla. 4th DCA 1977), cert. denied, 359 So.2d 1221 (Fla.1978).
Retrieving the full opinion text from the archive…
CASTLEWOOD INTERNATIONAL CORPORATION, Etc., et al., Petitioners,
v.
Dianne LaFLEUR and Edward LaFleur, Respondents.
45640.
Supreme Court of Florida.
Oct 29, 1975.
322 So. 2d 520
1975 Fla. LEXIS 4372
England.
Cited by 87 opinions  |  Published

[*521] Thomas E. Scott, Jr., of Bradford, Williams, McKay, Kimbrell, Hamann & Jennings, Miami, for petitioners.

Irma V. Hernandez, of Sepler & Sussman, Hialeah, for respondents.

ENGLAND, Justice.

By petition for a writ of certiorari brought under Fla. Const. art. V, § 3(b)(3), we are asked to review a decision of the Third District Court of Appeal, reported at 294 So.2d 21, which is allegedly in conflict with prior appellate decisions of Florida. The requisite conflict exists between the decision below and Cloud v. Fallis, 110 So.2d 669 (Fla. 1959), and certiorari is granted.

On the merits, we find that the district court erroneously reversed the trial court's order directing a new trial on the issue of punitive damages, by failing to apply the rule of law enunciated in Cloud. For that reason we vacate the decision below and direct the court to reinstate the trial court's order requiring a new trial on that issue.

This matter was tried on a complaint which alleged intentional assault and battery, negligence, and wanton and willful misconduct by the individual defendant, Holland, in the course of his employment for the corporate defendant Castlewood. The latter allegation would form the basis for imposing punitive damages if appropriate evidence were adduced, and there is no controversy between the parties as to the legality of having submitted that issue to the jury in this case. The basic facts giving rise to the controversy, which are set forth in the opinion below, are unnecessary for our determination. In this Court the sole controversy is whether the trial court was correct in granting a motion for new trial on the issue of punitive damages after the jury had awarded both compensatory and punitive damages against the defendants.

At the close of defendant's case the trial judge charged the jury, in accordance with the requests of the parties, on the legal requirements for liability and for damages. In this there was admittedly no error. On his own, however, the trial judge also charged the jury as to the legal definition of "gross negligence", although that issue was not an element of the case.[1] The jury charges were presented in "standard" sequence, based on the numerical chronology of Standard Jury Instructions as adopted by this Court in 198 So.2d 319 (Fla. 1967). The sequence of instructions was a definition of mere negligence, a definition of gross negligence, an explanation of the damages recoverable for negligence, a definition of willful and wanton negligence, and an explanation of the damages recoverable for that conduct.

After jury verdicts had been received, a hearing was held on defendants' motion and the court ordered a new trial on the issue of punitive damages. The order states that harmful error was committed by giving two gross negligence charges to the jury, and that defendants did not[*522] have a fair trial on that issue. The Third District Court of Appeal disagreed and reversed the order, stating they did not believe the jury was confused. In that, the district court erred.

Since at least 1962, it has been the law of Florida that a trial court's discretion to grant a new trial is "of such firmness that it would not be disturbed except on clear showing of abuse... ." Cloud v. Fallis, 110 So.2d 669, 672 (Fla. 1959).[2] A heavy burden rests on appellants who seek to overturn such a ruling, and any abuse of discretion must be patent from the record. See Hendricks v. Dailey, 208 So.2d 101, 103 (Fla. 1968); Russo v. Clark, 147 So.2d 1, 3-4 (Fla. 1962). The required showing is more difficult in this case because, unlike other cases, the prejudicial error which required a new trial was injected into the case by the judge himself. Under these circumstances his view of the need for corrective action should be accorded additional weight.

In this case there is no suggestion of abuse by the district court, and our independent review of the record discloses none. Mere disagreement from an appellate perspective is insufficient as a matter of law to overturn a trial court on the need for a new trial.[3] The trial judge "was in a much better position than an appellate court to pass on the ultimate correctness of the jury's verdict." Pyms v. Meranda, 98 So.2d 341, 343 (Fla. 1957).

The opinion below is vacated, and the Third District Court of Appeal is directed to reinstate the trial court's order for a new trial on the issue of punitive damages.

ADKINS, C.J., ROBERTS, J., and CHAPPELL and WILLIAMS, Circuit Judges, concur.

OVERTON, J., concurs with an opinion.

OVERTON, Justice (concurring).

I strongly concur in the opinion by Mr. Justice England. The judicial discretion of a trial judge is necessary to ensure the effective operation of our court system and the fair administration of justice. Judicial discretion has been defined as: "The power exercised by courts to determine questions to which no strict rule of law is applicable but which, from their nature, and the circumstances of the case, are controlled by the personal judgment of the court." 1 Bouvier's Law Dictionary and Concise Encyclopedia (8th Edition).

The trial judge is given this discretionary power because it is impossible to have a strict rule of law for every conceivable situation that might occur in the course of a judicial proceeding. A trial judge, in carrying out this discretionary authority, has the responsibility to see that justice prevails. The application of this discretionary power involves certain standards and guidelines. It must be logically applied. This discretionary power was never intended to be exercised in accordance with the whim or caprice of a judge. Nor should the judicial action be inconsistent. In dealing with cases essentially alike, as in all law, when the facts are the same, the result must be the same. As to the standards by which a judge must exercise this[*523] discretionary power, the following quotation from Justice Cardozo is appropriate:

"The judge, even when he is free, is still not wholly free. He is not to innovate at pleasure. He is not a knight-errant, roaming at will in pursuit of his own ideal of beauty or of goodness. He is to draw his inspiration from consecrated principles. He is not to yield to spasmodic sentiment, to vague and unregulated benevolence. He is to exercise a discretion informed by tradition, methodized by analogy, disciplined by system, and subordinated to `the primordial necessity of order in the social life.' Wide enough in all conscience is the field of discretion that remains."
Benjamin Cardozo, The Nature of the Judicial Process, Yale University Press (1921).

Recognizing that a strict rule is not possible in every conceivable situation, the trial judge is given the discretionary power because he is on the scene and can actually see, hear, and observe all the participants in the trial and therefore has a superior vantage point as compared to those of us on the appellate court who must look at a bare record. The authority is generally given in trial procedure,[1] although there are substantive law areas such as child custody,[2] bail,[3] sentencing,[4] and specific performance[5] that depend upon the trial judge's special on-the-scene insight. In addition, the trial court is given discretionary authority in the administrative operation of the courts.[6]

The judicial determination on a motion for a new trial has historically been a discretionary function of the trial court. It places the full weight of the discretionary power on the trial judge. This discretionary power to grant or deny a new trial emanates from the common law principle that it is the duty of the trial judge to prevent what he considers to be a miscarriage of justice. The historical origin is set forth in Aetna Casualty & Surety Co. v. Yeatts, 122 F.2d 350 (4th Cir.1941). It is important to recognize that the discretionary authority does not allow the trial judge to enter a judgment for one or the other litigant or to deny him a jury trial, but only allows him to grant another trial in order to correct the mistakes or to avoid the problem or problems he believes from his observation to have caused a miscarriage of justice.

Where a trial judge is applying a rule of law such as ruling on a motion for a directed verdict, this is not a discretionary act, and an appellate court may substitute its judgment for that of the trial judge. However, where the act of the trial judge is a true discretionary act, the test of reviewability is entirely different. It is well illustrated by Mr. Justice England's comment and quote from Cloud v. Fallis, 110 So.2d 669, 672 (Fla. 1959), that "it has been the law of Florida that a trial court's discretion to grant a new trial is `of such[*524] firmness that it would not be disturbed except on clear showing of abuse... .'"

Courts in other jurisdictions have made similar statements. Numerous federal courts have adopted the rule that the granting or reviewing of a new trial is a matter resting in the sound discretion of the trial judge, and that his action thereon is not reviewable upon appeal save in the most exceptional circumstances. Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 61 S.Ct. 189, 85 L.Ed. 147 (1940); Fairmount Glass Works v. Cub Fork Coal Co., 287 U.S. 474, 53 S.Ct. 252, 77 L.Ed. 439 (1933); Barnes v. South Carolina Public Service Authority, 120 F.2d 439 (4th Cir.1941).

A California court has said that it is a general rule that the judge's conclusion "should not be disturbed unless, under all the circumstances appearing, it is plainly wrong." Lafargue v. United Railroads, 183 Cal. 720, 724, 192 P. 538, 540 (1920). The Wisconsin Supreme Court has said, "... discretion will not be reviewed unless there is an abuse of it; that is, unless it appears that it was exercised on grounds or for reasons clearly untenable, or to an extent clearly unreasonable. That would be its abuse." Murray v. Buell, 74 Wis. 14, 18, 41 N.W. 1010, 1011 (1889).

What is the test that an appellate court must apply to review a discretionary act of a trial judge? In an extended comment about the discretionary power, a federal court said: "Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion." Delno v. Market Street Railway Company, 124 F.2d 965, 967 (1942).

It is my opinion that in reviewing a true discretionary act of a trial judge, the appellate court must fully recognize the superior vantage point of the trial judge and apply the "reasonableness" test to determine whether the trial judge abused his discretion. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court's action was unreasonable and that it had abused its discretion.

In the instant case the trial judge had the responsibility to make sure that there was no miscarriage of justice. It was his opinion that the defendants did not have a fair trial on the issue of punitive damages. There is no showing in this record that his action was arbitrary, unreasonable, or untenable, and, therefore, his decision must be affirmed.

1 As a basis for our jurisdiction petitioner has alleged that the opinion below conflicts with established principles of Florida law which recognize three levels of negligent conduct, and which distinguish between second level "gross negligence" and third level "willful and wanton negligence". E.g., Carraway v. Revell, 116 So.2d 16 (Fla. 1959); Florida Southern Ry. v. Hirst, 30 Fla. 1, 11 So. 506 (1892). No conflict is present because the district court only ruled that the jury was not confused beyond understanding by the trial court's charges on gross negligence.
2 Indeed, a stronger showing is required to upset an order granting a trial than is required for an order denying a new trial. Cloud v. Fallis, 110 So.2d 669, 673 (Fla. 1959).
3 This is equally true whether error arises during the conduct of the trial or out of the judge's charges to the jury. Charges to a jury are the legal heartbeat of the case, being all that the jury has by which to assess the facts. Rodriguez v. Gonzalez, 157 So.2d 848, 851 (2d Dist.Ct.App.Fla. 1963), cert. denied, 165 So.2d 463 (Fla. 1964). It is virtually impossible for an appellate court to know whether a jury was misled or confused by an admixture of erroneous and proper jury charges. Cf., McCullum v. Florida Power & Light Co., 125 So.2d 754, 755 (3d Dist.Ct. App.Fla. 1961), aff'd, 140 So.2d 569 (Fla. 1962).
1 Most discretionary acts are found in this area of the law. The following are some examples: Control of the scope of voir dire examination, Mizell v. New Kingsley Beach, Inc., 122 So.2d 225 (Fla.App.1st 1960); opening statements, Juhasz v. Barton, 146 Fla. 484, 1 So.2d 476 (1941); Woods v. State, 154 Fla. 203, 17 So.2d 112 (1944); evidentiary matters, such as scope of cross-examination, Dabney v. Yapa, 187 So.2d 381 (Fla.App.3d 1966); and, competency of witnesses, Radiant Oil Co. v. Herring, 146 Fla. 154, 200 So. 376 (1941); motion for mistrial, Wirt v. Fraser, 158 Fla. 777, 30 So.2d 174 (1947); motion for new trial, Cloud v. Fallis, 110 So.2d 669 (Fla. 1959).
2 Grant v. Corbitt, 95 So.2d 25 (Fla. 1957).
3 State v. Frear, 155 Fla. 479, 20 So.2d 481 (1945).
4 Wallace v. State, 41 Fla. 547, 26 So. 713 (1899).
5 Miller v. Gardner, 144 Fla. 339, 198 So. 21 (1940).
6 State ex rel. Evans v. Chappel, 308 So.2d 1 (Fla. 1975). The foregoing are examples only and are not intended to be all inclusive.