When Is a Motion for Rehearing Necessary to Preserve for Review a Trial Court's Error in Failing to Make Factual Findings?

• Author: Bushell, Daniel A.
• Position: Appellate Practice

A core principle of appellate adjudication is that a party must preserve issues to raise them on appeal. That means, as the Florida Supreme Court reaffirmed in Sunset Harbour Condominium Association v. Robbins, 914 So. 2d 925 (Fla. 2005), "an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved." (1) The preservation requirement derives from the idea that appellate courts should not fault a trial judge for failing to account for an issue if the parties did not tell him or her it needed to be considered. (2) Lack of preservation will not prevent review only in very limited circumstances in which the trial court committed a "fundamental error" that "goes to the very heart of the judicial process," such as where the court lacked subject-matter jurisdiction or a party was denied due process. (3)

For any issue that arises before or during trial, it is a safe bet that if the issue was not raised to the trial judge, it will not be considered on appeal. In that regard, motions for rehearing authorized under Florida Rule of Civil Procedure 1.530 can be a lifeline to preserve for appeal issues that counsel failed to argue prior to the entry of judgment. (4)

But a more difficult issue arises when the issue to be raised on appeal is one that first appears in the trial court's order or judgment. Is it necessary to file a motion for rehearing to preserve arguments as to the contents of the order or judgment, such as whether it contains sufficient findings or whether its findings are based on sufficient evidence (i.e., competent and substantial)? The answer varies with context and, in some situations, by district.

Unsupported Findings

Whether challenges to findings based on the sufficiency of the evidence must be preserved depends on the identity of the factfinder. For findings made by a judge without a jury, Rule 1.530(e) makes clear that neither a motion for rehearing nor any other action is necessary to preserve any challenge to the findings in an order (or judgment) as unsupported by competent, substantial evidence: "When an action has been tried by the court without a jury, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment." (5) Similarly, every district court of appeal has confirmed that a party may argue for the first time on appeal that the trial court judge's findings were not supported by sufficient evidence. (6) On the other hand, when a case is tried to a jury, any challenge to the sufficiency of the evidence must be preserved through a motion for directed verdict and/or a motion for new trial. (7)

Findings Required for Meaningful Review

Then there is the issue of whether the order or judgment contains sufficient findings. Challenges to the sufficiency of findings can arise in any case involving multiple bases on which the trial court might have premised its decision, and the trial judge does not indicate either in the order or during the hearing the basis for its conclusion. For example, in Featured Properties, LLC v. BLKY, LLC, 65 So. 3d 135 (Fla. 1st DCA 2011), the seller claimed damages resulting from a buyer's breach of a sales contract, and the buyer alleged as a defense that the contract was voidable or subject to rescission because the broker of the transaction had not disclosed that he was an owner of the seller. The seller responded that if the alleged broker-seller relationship existed, the buyer waived any ability to void the contract based on it by failing to immediately take action when the seller first learned of the alleged broker-seller relationship. (8) After a bench trial, the trial court awarded damages to the seller, without articulating whether it had rejected the allegation regarding the broker-seller relationship or had found the buyer had waived any right to void the contract.

In such circumstances, as the Fourth District Court of Appeal explained in Exotic Motorcars & Jewelry, Inc. v. Essex Ins. Co., 111 So. 3d 208 (Fla. 4th DCA 2013), without sufficient findings, the appellate court may be unable to determine whether the trial court erred, such that "effective review may be deemed impossible and the cause remanded for findings, notwithstanding that such findings may not be mandated by rule or statute." (9) For a party to argue on appeal that additional findings are necessary to enable meaningful review, the party need not necessarily preserve the issue by raising it in a motion for rehearing; the issue is often raised by the court itself. (10)

Mandatory Findings

Challenges to the sufficiency of findings can also arise regarding particular types of orders in which caselaw requires the trial court to make specific findings. For example, under Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145, 1150 (Fla. 1985), when a court determines the amount of attorneys' fees to award, it is required to make specific findings as to the reasonable hourly rate and reasonable number of hours expended. (11)

Similarly, under Kozel v. Ostendorf, 629 So. 2d 817, 818 (Fla. 1993), before dismissing a case with prejudice based on...