Reconsideration or rehearing: is there a difference?

• Author: Wyman, James H.
• Position: Florida

Ask any civil trial lawyer in Florida how many days one has to move for rehearing of an order simply granting a motion for summary judgment, and the odds are good the lawyer will respond, "Ten days." Pursue the matter further with the lawyer, and ask where this 10-day period is set forth in the Florida Rules of Civil Procedure, and the lawyer will invariably point to

Rule 1.530, which by its title governs motions for new trial and rehearing. Rule 1.530, however, provides that a motion for rehearing must be served no later than 10 days after "the date of filing of the judgment in a non-jury action." (1) An order simply granting a motion for summary judgment is not a final judgment; rather, it is a nonfinal order. (2) So, too, are myriad other orders entered by a trial court before final judgment. Attorneys in Florida nevertheless regularly file "motions for rehearing" directed to such nonfinal orders. Often they believe they must do so within 10 days. Sometimes they also believe that such a motion tolls the time to seek appellate review of the nonfinal order.

Motions for rehearing of nonfinal orders are not authorized by the Florida Rules of Civil Procedure. (3) Noting that motions for rehearing are exclusively governed by Rule 1.530, the Florida Supreme Court has observed that "[u]nless the filing of a motion for rehearing to an interlocutory order is authorized by a rule of court promulgated by the rule-making authority, then its filing is improper." (4) Indeed, it is not unheard of for an attorney to file a motion for "rehearing" of a nonfinal order and subsequently be confronted with a response from the other side echoing the court's language and declaring that such motions are unauthorized and improper.

Yet while the rules of civil procedure themselves do not authorize motions for rehearing directed to nonfinal orders, a trial court does have the inherent authority to reconsider and alter or retract such orders prior to the entry of final judgment. (5) Rather than constituting a motion for rehearing under Rule 1.530, a motion directed to a nonfinal order is actually a "motion for reconsideration" based upon this inherent and discretionary authority of the trial court. (6) Despite this distinct and well-established basis for reconsideration of interlocutory orders, there still exists confusion among many practitioners about the differences between reconsideration and rehearing.

Much of the confusion stems from the fact that parties and the courts frequently use the terms interchangeably, at least in the context of motions directed at nonfinal orders. This is perhaps understandable given the lack of any rule-based authority for reconsideration of nonfinal orders; the articulation of the trial court's inherent authority has of necessity come through the development of the common law. An attorney will, therefore, only be aware of the basis for reconsideration--as well as its effect on any subsequent appeal--from the case law.

Common Law Origin of Motions for Reconsideration

Motions for reconsideration have a long common law pedigree. In 1924, the Florida Supreme Court deemed it "well settled that interlocutory judgments or decrees made in the progress of a cause are always under the control of the court until final disposition of the suit, and they may be modified or rescinded upon sufficient grounds, shown any time before final judgment...." (7) In 1930, commenting on a plaintiff 's motion to vacate a nonfinal order granting a voluntary dismissal, the Supreme Court observed that such a motion, "being usually considered as in the nature of a motion for reconsideration, is addressed to and rests in the sound discretion of the court before whom the case was heard...." (8)

These early cases also referred to the trial court's power to modify or vacate judgments at any time during the term in which they were entered. (9) With the adoption in Florida of rules of civil procedure in the early 1950s, the effect of a trial court's term was expressly abolished, (10) and this post-judgment authority was confined within the processes set forth in what are now Florida Rules of Civil Procedure 1.530 and 1.540. (11) The new rules of procedure, however, were silent on the topic of reconsideration of nonfinal orders prior to entry of judgment.

Ten years after the adoption of the rules of procedure, in North Shore Hospital, Inc. v. Baker, 143 So. 2d 849, 851 (Fla. 1962), the Supreme Court reaffirmed the longstanding tenet that a trial court has the inherent authority to control its own interlocutory orders prior to final judgment. Another 10 years later, in Wagner v. Bieley, Wagner & Associates, Inc., 263 So. 2d 1 (Fla. 1972), the Supreme Court muddied the waters somewhat when it held that a "motion for rehearing" directed to an interlocutory order does not toll the time for taking an appeal from that order. Although this is an unassailable proposition, the Wagner court unfortunately set out the reasoning underlying its holding with a heavy hand. Instead of simply explaining that, under the rules of procedure, only motions for rehearing directed at judgments toll the time for taking an appeal, the court instead described motions for rehearing directed to nonfinal orders as "improper" and "unauthorized," and further flatly stated that the rules "do not permit motions for rehearing directed to interlocutory orders." (12) Nowhere in Wagner did the court acknowledge that a party might move to invoke the trial court's inherent authority to reconsider and modify or vacate its nonfinal orders.

In 1984, the Fourth District attempted to clarify this apparent contradiction in Commercial Garden Mall v. Success Academy, Inc., 453 So. 2d 934 (Fla. 4th DCA 1984). The court held that while nonfinal orders were not subject to a motion for rehearing, a trial judge nevertheless had the discretion to choose to entertain such a motion precisely because it had jurisdiction to control its nonfinal orders prior to entry of judgment. (13) Three years later, in Bettez v. City of Miami, 510 So. 2d...