Too Little, Too Late? Trial Court Motions for Rehearing and Their Appellate Implications.

• Author: Krukar, Jared M.
• Position: Florida

On its face, Fla. R. Civ. P. 1.530(a) allows a party to raise practically anything for the first time in a motion for rehearing. But in practice, questions abound: What can be raised? What must be raised? Will a newly raised argument or evidence be preserved for appellate review? Conversely, will failure to raise an issue on rehearing waive appellate review? The answers to those questions lie in the particulars of each case: the facts, the procedural posture, and sometimes, the district court to which it will be appealed.

The history of the rehearing rule, and its interpretation and application over time, reveals several key conflicts that create potential traps for trial practitioners.

The Origination of Rule 1.530(a)

Our modern rule on rehearing began to take shape in 1952, when the Supreme Court amended 1950 Common Law Rule 41(a) (1) to first incorporate the concept of "rehearing":

A new trial may be granted in an action tried without a jury on grounds that heretofore were grounds for a rehearing in a suit in equity; and in such cases the court may open the judgment, if one has been entered, take additional testimony, and direct the entry of a new judgment. (2)

When the Supreme Court created the 1954 Florida Rules of Civil Procedure, (3) it incorporated Common Law Rule 41(a) as Fla. R. Civ. P. 2.8(a). (4) Then in 1962, the Supreme Court added a reference to summary judgment:

(a) Jury and Non-Jury Cases. A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of a summary judgment or of matters heard without a jury, the court may open the judgment if one has been entered, take additional testimony and enter a new judgment. (5)

In 1966, the rules were formally reorganized into the framework with which we are all familiar today. (6) That version of the rehearing rule still stands today, numbered as Rule 1.530(a):

(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony and enter a new judgment. (7)

The Standard of Review and Preservation of Error

The Supreme Court provided early guidance as to the rule's application on rehearing in Blue v. Blue, 66 So. 2d 228, 229-30 (Fla. 1953). The court recognized that trial courts were vested with broad discretion in determining whether to grant or deny a motion for rehearing, holding "[i]t is well settled that an [a]ppellate [c]ourt will not disturb the order of a lower [c]ourt in the exercise of its [j]udicial discretion unless an abuse of this discretion is clearly shown." (8)

The court also recognized that this discretion was not without limits. The Blue court applied those limits to the case before it, reversing the trial court's denial of a petition for rehearing and holding that the trial court had abused its discretion in refusing to consider newly discovered--and potentially material--evidence that could not have been discovered earlier. (9) That said, trial courts have rarely been reversed for granting a motion for rehearing and reopening a case, absent there being some jurisdictional bar (such as the timeliness of the motion). (10) As demonstrated in Wynocker v. Wynocker, 500 So. 2d 555 (Fla. 2d DCA 1986), a trial court may choose to reopen a case and allow the parties to raise new arguments or present new arguments on practically any issue, should the trial court so decide. Thus, the abuse-of-discretion standard unsurprisingly weighs heavily in favor of the party that succeeds on rehearing in the trial court.

When rehearing is denied, however, the standard of review plays a unique--and sometimes uncertain -- role in the determination of whether arguments or evidence raised for the first time on rehearing are preserved for appeal. For example, the Fifth District in Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So. 2d 1164 (Fla. 5th DCA 1980), expressly refused to even review the contents of affidavits filed in support of a motion for rehearing because it determined the trial court had properly exercised its discretion in refusing to consider them itself. (11) In other words, the Coffman court held that the evidence and arguments contained therein were unpreserved for appellate review.

Other districts have similarly held they would not, or could not, review arguments or evidence raised for the first time on rehearing. The Fourth District held in Trinchitella v. D.R.F., Inc., 584 So. 2d 35 (Fla. 4th DCA 1991), "We cannot consider the issues raised for the first time in a motion for rehearing in the trial court," and recently reaffirmed that stance in Best v. Education Affiliates, Inc., 82 So. 3d 143, 146 (Fla. 4th DCA 2012). (12) The Second District likewise stated, "We cannot consider the issues concerning the validity of the resolutions imposing water and sewer impact fees by appellee Pinellas County Commission, since appellant raised these issues for the first time in its motion for rehearing in the trial court," in School Board of Pinellas County v. Pinellas County Commission, 404 So. 2d 1178 (Fla. 2d DCA 1981). (13)

Again, the trial court's discretion to deny a motion for rehearing is not unbridled. District courts occasionally reverse denials of motions for rehearing when the party has raised a new argument or evidence therein. To reverse, the appellate courts must typically consider those new arguments and evidence, as is seen in the cases cited below. (14)

The History of Rehearing from Summary Judgment

Review of orders denying rehearing on summary judgment is a longtime source of confusion on the principles of discretion and preservation. It started in 1966, while the Supreme Court was reorganizing the rules. At that same time, the court issued its landmark decision in Holl v. Talcott, 191 So. 2d 40 (Fla. 1966). While Holl is most recognizable for its analysis of the burdens on a motion for summary judgment, the opinion also discussed the procedures and considerations on rehearing in a summary judgment setting. (15)

In Holl, the plaintiff opposed a motion for summary judgment by relying on an affidavit the trial court ultimately struck for legal insufficiency, contemporaneously granting summary judgment for certain defendants. (16) The plaintiff "moved for rehearing or, alternatively, to reopen the judgment to permit the submission of additional affidavits designed to cure any defects in the first one." (17) The trial court denied the motion. (18)

The case ultimately...