Trial Court Rehearings Compared with Appellate Court Rehearings.

Author:Muniz, H. Michael

From time to time, Florida litigators firmly believe they have found cause to request Florida state court judges to reconsider or reevaluate their decisions primarily because of perceived error in judicial rulings. The vehicles for submitting such a written request before a Florida state court are the motion for rehearing and motion for reconsideration. The distinction between the two motions lies in the nature of the order to which the motion is directed. A motion for rehearing is directed to a final order whereas a motion for reconsideration is directed to a nonfinal order. (1) "Nomenclature does not control, and motions for either 'rehearing' or 'reconsideration' aimed at final judgments shall be treated as [R]ule 1,530 motions for rehearing, while motions aimed at nonfinal orders shall be treated as motions for reconsideration." (2) Although some Florida practitioners may entitle their motion for "rehearing/reconsideration " that combined heading appears improper because an order is either final or nonfinal but rarely, if ever, both.

Notably, procedural rules promulgated and adopted by the Florida Supreme Court have the force of law throughout Florida and should not be ignored or disregarded but must be given due consideration when a party litigant appears on paper, albeit electronically, in a court of law. (3) Born with a highly reputable pedigree, the Florida Rules of Civil Procedure were very closely patterned after the U.S. Supreme Court-adopted Federal Rules of Civil Procedure. (4)

If, indeed, a court has rendered an erroneous ruling, ideally the court should embrace the opportunity to make the right decision, as recognized by the en banc court in VLX Properties, Inc. v. Southern States Utilities, Inc., 792 So. 2d 504 (Fla. 5th DCA 2001):

Precedent (stare decisis), and law of the case for that matter, is like tradition in that it provides a valuable connection to the past. It assists in providing consistency and predictability, both valuable qualities in law. But neither precedent (nor law of the case) should be used to institutionalize or justify error. We are no more perfect as judges than we are as individuals. We make mistakes. Neither the public nor the Bar expect us to always be right; they do expect us, however, to always be forthcoming. If it appears that we have made a mistake, we should not hesitate to correct it and, if it is still within our power to do so, we should mitigate any damage we have caused. Neither this court nor the law is served by our adhering to a previous position which we now believe to be wrong. (5)

Another material distinction exists between a motion for rehearing and a motion for reconsideration in that a motion for rehearing must be timely served within 15 days of entry of a final order or final judgment under Fla. R. Civ. P. 1.530(b), (6) whereas no time deadline exists for a motion for reconsideration directed to a nonfinal order except upon entry of a final judgment at which point no motion for reconsideration may be filed directed to a prior interlocutory order. (7) Obviously, "the time limit for serving a motion for rehearing under [R]ule 1.530 is short." (8) Notably, "the trial court has no authority either to permit the filing of any further motion for rehearing beyond the one authorized by Florida Rule of Civil Procedure 1.530, or to extend the time for filing that motion." (9) If, by chance, the litigator is uncertain whether a particular order is final or nonfinal, which is not always the easiest determination to make, (10) the safest approach is to proceed as if the order was final in nature and comply with the 15-day deadline to timely serve (and file) the motion.

Now that we have covered the basics, the instant article advances the nuances of moving for rehearing first in Florida state trial courts contrasted with moving for rehearing on appeal. The distinctions may reasonably be characterized as different as night and day or akin to Jekyll and Hyde. While many practitioners litigate cases both in Florida trial courts and appellate courts, it is materially significant on rehearing motions to know if the litigator is before a trial court or is before a Florida appellate court. Added caution should be exercised if the litigator is before a circuit court, which generally sits as a Florida trial court but can also sit as an appellate court in limited circumstances. (11) Now, on to the applicable rules.

Rule 1.530 Governs Motions for Rehearing in Florida Trial Courts and Should Not Be Conflated with Rule 1.540

When an issue is governed by a Florida Rule of Civil Procedure, it is prudent to first consider the language of the particular rule and the plain meaning of the words used to determine the effect and purpose of the rule. (12) Rule 1.530 contains and is segregated into seven sub-parts. Subpart (a) concerns motions for a new trial that may be granted to any of the parties in whole or in part, whether the case was tried jury or nonjury. (13) Sub-part (b) addresses the time limit for serving a motion for new trial or for rehearing, which is specified as no later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a nonjury action. (14) Sub-part (c) addresses the time limit for serving affidavits with respect to a motion for a new trial. (15) Sub-part (d) provides the trial court with broad authority to grant a new trial or rehearing, but not later than 15 days after entry of judgment. (16) Subpart (e) provides in the case of a nonjury or bench trial, the sufficiency of the evidence to support the judgment may be raised on appeal notwithstanding whether the party raising the question preserved the issue in the trial court. (17) Sub-part (f) provides that the trial court shall specify in its order the specific grounds for granting a new trial. (18) And sub-part (g) specifies that a motion to alter or amend a judgment shall be made upon motion served no later than 15 days after entry of judgment. (19)

In an original proceeding or action, sub-parts (a) and (d) strongly suggest that a motion for rehearing filed in a Florida trial court is unlimited in content, which may also be supported by affidavit. (20) "The grounds for rehearing under IRJule 1.530 are broad." (21) Sub-parts (c), (f), and (g) provide the trial court with likewise broad discretion to adjudicate a motion for rehearing. (22) Sub-part (e) is particularly notable because with respect to the sufficiency of the evidence to support the judgment, (23) the rule overrules the long-established Florida preservation of error common law doctrine that requires issues and arguments to first be raised in the trial court before those issues and arguments may be raised to be cognizable on appeal. (24) "Under [R]ule 1.530, a rehearing is a second consideration of a cause for the sole purpose of calling to the attention of the court any error, omission, or oversight that may have been committed in the first consideration. Upon the timely filing of a petition for rehearing, the court may reopen the case and reconsider any or all of the provisions of its final decree." (25) While there is no language in Rule 1.530 that establishes otherwise, the nature of the rule and 15-day deadline does not contemplate multiple rehearing motions directed to final orders. (26) Generally, litigants are not entitled to a second bite at the Rule 1.530 apple. (27) However, the rule expressly provides that "a timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined." (28) As such, if the movant acts promptly, new grounds not raised in the initial rehearing motion may be subsequently raised in a supplement or composite amended rehearing motion. Unlike summary judgment, no in-court hearing is required on such motion. (29)

Unfortunately, certain cases illustrate the dangers of conflating rehearing Rule 1.530 with Rule 1.540(b) that concerns itself with vacating final judgments, orders and decrees. (30) "In contrast to [R]ule 1.530, the grounds to seek relief from a final judgment or order under [R]ule 1.540 are narrow." (31) "The trial court is restricted in providing relief from judgments, decrees, or orders to the limited number of grounds set forth in Florida Rule of Civil Procedure 1.540." (32) Unlike Rule 1.530, Rule 1.540(b) expressly states the grounds upon which a motion to vacate may be presented to the trial court to vacate a final judgment. (33) "Florida law requires strict compliance with the time limit of [R]ule 1.540(b), which, like other jurisdictional time limits such as the time for filing a notice of appeal or a motion for a new trial, may not be extended for any reason." (34) Any other grounds raised under Rule 1.540(b) would cause the motion to vacate to fail because no other grounds are authorized. In contrast, Rule 1.530 is itself the proverbial second bite at the apple.

"Under the present rules, after the rendition of the final judgment, the trial court retains jurisdiction for the [15]-day period during which a motion for rehearing may be filed and, if filed, until disposition of the motion. The trial court thereafter loses jurisdiction except to enforce the judgment and except as provided by Florida Rule of Civil Procedure 1.540." (35) Once beyond the reach of Rule 1.540(b), the final judgment passes into the unassailable realm of finality. (36)

Rules 9.330 and 9.331 Govern Motions for Rehearing in Florida Appellate Courts

Once again, it is prudent to first consider the plain meaning of the words contained in the particular rules beginning with Rule 9.330 (37) that also does not provide for an in-court hearing.

(a) Time for Filing; Contents; Response. (1) Time for Filing. A motion for rehearing, clarification, certification, or issuance of a written opinion may be filed within 15 days of an order or decision of the court or within such other time set by the court, (2) Contents. (A)...

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