If at first you don't succeed, should you try again? Motions for rehearing on appeal.

• Author: Rooney, Carol M.
• Position: Appellate Practice

Litigating a case through trial and appeal is time consuming and costly. After months --or more often, years--spent on this effort, delivering an adverse opinion from the appellate court to the client is unquestionably a difficult and often emotional task. Invariably, the disappointed client asks if anything can be done to fix the situation, and motions for rehearing on appeal are discussed. This article provides guidance to attorneys faced with the task of answering the client's questions and exploring whether a motion for rehearing is an option when the appellate court's opinion is not what you or your client hoped to receive.

Although the primary focus will be on motions for rehearing in Florida's state appellate courts, petitions for rehearing in the U.S. Court of Appeals for the 11th Circuit will also be addressed. Appellate motions for clarification and motions for certification are beyond the scope of this article.

Appellate Motions for Rehearing Generally

In Florida's state appellate courts, motions for rehearing are governed by Fla. R. App. P. 9.330. Rule 9.330 sets forth the time for filing a motion for rehearing, as well as the required contents and available grounds for such a motion. The following discussion will address each of these elements. Motions for rehearing en banc will also be discussed, as well as the potential for sanctions for failure to comply with the applicable rules.

* Time for Filing the Motion--Motions for rehearing under Rule 9.330 must be filed in the appellate court within 15 days of the order upon which rehearing is sought "or within such other time set by the appellate court." (1) Conceivably, under the quoted language, the court could increase or decrease the time for rehearing. Motions not filed within 15 days, or such other time set by the court, will ordinarily be stricken. The time limits for appellate motions for rehearing are not jurisdictional. If a satisfactory explanation for the tardiness is given, the court has the discretion to entertain an untimely motion for rehearing on the merits. (2) The court may not exercise that discretion, however, so practitioners should treat the deadline for rehearing as mandatory and advise their clients accordingly.

When a motion for rehearing on appeal is filed, Rule 9.330 affords the opposing side an opportunity to respond. The response, if any, must be served within 10 days of the date the motion for rehearing was served. (3)

At this point, it is worth noting that only one motion for rehearing is permitted. The general rule is that a party cannot file more than one motion for rehearing of a decision. (4) Moreover, if the appellate court grants rehearing, a subsequent motion for rehearing of that decision will not be entertained. An exception may be made where the appellate court's decision on rehearing changes the substance or effect of the original opinion. (5)

* Contents of the Motion--Rule 9.330 sets forth the necessary contents for a rehearing motion as follows: "A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding." (6) Thus, the motion must state the particular factual or legal basis for the rehearing. It must not contain new issues, and it must avoid rearguing the merits of the appellate court's decision. (7)

* Grounds for the Motion--The required contents of a rehearing motion are directly related to the available grounds for the motion. In short, the grounds for rehearing are limited to points of law and fact the court misapprehended or overlooked in its original decision. The reason for the limited grounds available is rooted in the limited purpose of rehearing.

Rehearing is not a forum for expressing disagreement with the appellate court's decision, (8) nor is it an opportunity to interject new issues or evidence not previously considered in the proceedings. (9) Moreover, a rehearing is not a reconsideration. The language of Rule 9.330 does not authorize a motion that attempts to reargue issues already considered and determined...