Reconsideration or Rehearing: Is There a Difference?
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 1242 (Fla. 3d DCA 1987), the Third District made clear that a motion for reconsideration was a vehicle distinct from a motion for rehearing. After its motion for summary judgment was denied, the defendant in Bettez moved for rehearing pursuant to Rule 1.530.14 The trial court granted the motion and entered summary judgment in favor of the defendant.15 On appeal, the plaintiff argued that the trial court had no authority to entertain the defendant’s motion.16 The Third District panel soundly rejected this contention, citing the longstanding common law rule that a trial court has the inherent authority to modify or vacate any of its nonfinal rulings prior to entry of final judgment.17 The court found that the mislabeling of the defendant’s motion as a “motion for rehearing” under Rule 1.530 “cannot change this result as the motion was, in substance, a proper motion for reconsideration.”18
Key Distinctions Between Reconsideration and Rehearing
“Authorization” under the rules of procedure underlies several important distinctions between motions for reconsideration and motions for rehearing. First, Rule 1.530 permits only a single post-judgment motion for rehearing.19 If the motion is denied, it is not subject to reconsideration because the trial court loses jurisdiction when it denies a Rule 1.530 motion for rehearing.20 However, the number of motions for reconsideration that can be directed to a single nonfinal order is limited only by the bounds of the trial judge’s patience.21
Second, a motion for rehearing under Rule 1.530 must be served within 10 days of entry of judgment.22 A trial court does not have jurisdiction to entertain a motion for rehearing served after that time period has elapsed.23 A motion for reconsideration, however, may be filed anytime up until final judgment, regardless of how much time has elapsed since the entry of the nonfinal order to which it is directed.24 Of course, it is probably the better practice to file a motion for reconsideration within a reasonable period of time after entry of the nonfinal order.
The third and most notable distinction between motions for rehearing and reconsideration arises in the context of a motion for reconsideration directed at one of the limited categories of nonfinal orders that are appealable under Florida Rule of Appellate Procedure 9.130. Under Rule 1.530, a timely filed motion for rehearing tolls the time for filing a notice of appeal from a final order until a signed, written order disposing of the motion is filed with the clerk of court.25 A motion for reconsideration of a nonfinal order, on the other hand, has no effect whatsoever on the time limit for filing a notice of appeal from that order.26 The notice of appeal from the nonfinal order must be filed within 30 days, regardless of whether the motion for reconsideration is still pending before the trial court.27 Further, an order on a motion for reconsideration of an appealable nonfinal order is not itself an appealable order.28
Similarly, a motion for reconsideration does not toll the 30-day time limit for filing a petition for writ of certiorari seeking review of a nonfinal order that is not appealable under Rule 9.130.29 In addition, the time to file a petition for writ of certiorari cannot be extended by filing a motion for reconsideration and obtaining a second order to the same effect as the first order.30
When a Motion for Reconsideration Can Toll Time
There are circumstances under which Florida courts have, however, allowed motions for reconsideration to toll the time for taking an appeal from a final judgment. In Bass v. Jones, 511 So. 2d 441 (Fla. 1st DCA 1987), the appellant filed a motion for rehearing after the trial court had granted the appellee’s motion for summary judgment. Two days later, the trial court entered final summary judgment.31 Seventy-five days after it entered judgment, the trial court denied the motion for “rehearing,” and the appellants filed their notice of appeal within 30 days of that denial.32 On appeal, the appellee contended that the motion for rehearing was directed at the interlocutory order granting the motion for summary judgment and, as such, did not toll the time for taking an appeal.33 The First District panel rejected this contention, instead construing the motion as one directed at the final summary judgment, albeit prematurely filed.34 The court held that because there was no substantive difference between the rights adjudicated in the nonfinal order and those adjudicated in the final judgment, no impediment existed to treating the motion as an authorized but premature motion that tolled the time for filing the notice of appeal.35
It should be noted, however, that motions for reconsideration and motions for rehearing directed at an adjudication of the same substantive right are not mutually exclusive. For example, in those situations where the trial court has simply granted a motion for summary judgment, counsel may file a motion for reconsideration and, once final judgment is entered, file a Rule 1.530 motion for rehearing.36 The First District has held that in such cases, a party is entitled to a decision on its motion for reconsideration prior to entry of final judgment, as well as the opportunity to file a Rule 1.530 motion for rehearing with 10 days of entry of the final judgment.37
At the other end of a case, a motion for reconsideration can toll certain time limits applicable in the trial court. For example, a motion for reconsideration of an order dismissing a complaint with leave to amend will, by implication, toll the time to amend if the trial court chooses to entertain the motion.38
Confusing Reconsideration and Rehearing
The focus on the lack of “authorization” in the rules of procedure for motions for reconsideration of nonfinal orders can generate some confusion. For example, one Fifth District case referred to this lack of authorization and then pointed out that even if motions for reconsideration were authorized, they nevertheless must be filed within 10 days of the nonfinal order.39 To be fair, this statement came in the context of a petition for writ of certiorari filed 30 days after the denial of a motion for reconsideration, with the court holding that the time to file the petition was not tolled by the motion. Still, the decision inadvertently implies the existence of a 10-day time limit for filing motions for reconsideration. The decision also illustrates the fact that the lack of authorization for motions for reconsideration has a limited, albeit significant, practical impact. As the Fourth District has observed: “Trial courts hear ‘unauthorized’ motions all the time and have the discretion to do so; and the only importance of whether a motion is authorized or not is that an unauthorized motion does not toll the time for appealing a prior nonfinal order.”40
Another source of confusion is the frequent use in Florida cases of the term “motion for rehearing” to describe motions for reconsideration.41 Undoubtedly, the courts are in many instances simply employing the same terminology used by the moving party in the trial court. Indeed, parties have also been known to do the reverse and label Rule 1.530 motions for rehearing as motions for reconsideration.42 In addition, a number of opinions obviously use the term “motion for rehearing” to emphasize the lack of authorization under the rules — and a concomitant lack of effect on the time to file a notice of appeal — for such motions directed to nonfinal orders.43 Occasionally, however, there is an opinion helpfully noting that a motion for rehearing of a nonfinal order is actually a motion for reconsideration.44
Orders Not Subject to Motions for Reconsideration
Although the general rule is that any interlocutory order is subject to a motion for reconsideration, as with all general rules, exceptions exist. Despite being entered before final judgment, an order granting a motion for new trial is not, absent fraud or clerical error, subject to a motion for reconsideration.45 This is so because an order granting a new trial confers a substantive right, and is, thus, not interlocutory in nature.46 Nor is an order denying a motion for new trial subject to reconsideration.47 There is no provision for reconsideration of an order denying a motion for new trial in the rules of procedure, which expressly govern such motions.48
A nonfinal order that has been affirmed via a Rule 9.130 appeal is also not subject to reconsideration because the trial court is bound by the appellate court’s affirmance of the order as the law of the case.49 In addition, a nonfinal order for which certiorari review was sought and expressly denied on the merits is not subject to a motion for reconsideration because a denial on the merits of a petition for writ of certiorari has a preclusive effect under the doctrines of res judicata or collateral estoppel.50
Appellate Review of Orders on Motions for Reconsideration
The extent to which orders on motions for reconsideration can be reviewed on appeal is not entirely clear. The Second District has concluded that an order denying a motion for reconsideration generally is not reviewable by the appellate court.51 The Fourth District, however, has implied that arguments raised in a motion for reconsideration may be considered on appeal.52 Regardless, reconsideration has been used to correct deficiencies in a denied motion and, thus, provide for review of a subsequent denial of reconsideration. For example, Florida courts have consistently reversed denials of reconsideration of orders denying a motion to vacate a default where the movant used reconsideration to correct deficiencies in the motion to vacate.53 The Fifth District has also reversed a denial of reconsideration of an order denying a motion for protective order where the movant showed a change of circumstances in the motion for reconsideration.54
It is unclear, however, whether appellate review of orders on motions for reconsideration extends any further than these limited scenarios. Nevertheless, given that reconsideration is discretionary with the trial court, an appellant could conceivably be able to obtain a reversal of the order to which reconsideration was directed by demonstrating an abuse of discretion in the denial of reconsideration.
Although by and large identical in their ultimate purpose, motions for reconsideration and motions for rehearing are separate and distinct under Florida law. A motion for rehearing is a creature of the rules of procedure. It may only be directed at final orders, must be served within 10 days of the final order, and tolls the time for filing a notice of appeal from that final order. A motion for reconsideration is a creature of the common law. It may be directed at virtually any nonfinal order and filed at any time until entry of judgment, but does not toll the time for filing a notice of appeal or a petition for writ of certiorari. To avoid confusion and maintain clarity, the practitioner who seeks to have a trial judge reconsider a nonfinal order should properly style the motion as one for reconsideration and not rehearing.
1 Fla. R. Civ. P. 1.530(b) (emphasis added).
2 E.g., White Palms of Palm Beach, Inc. v. Fox, 525 So. 2d 518, 519 (Fla. 4th D.C.A. 1988).
3 Wagner v. Bieley, Wagner & Assocs., Inc., 263 So. 2d 1, 3 (Fla. 1972).
4 Id. at 3 (citation omitted).
5 Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998).
6 E.g., Bettez v. City of Miami, 510 So. 2d 1242, 1242-43 (Fla. 3d D.C.A. 1987).
7 Alabama Hotel Co. v. J.L. Mott Iron Works, 98 So. 825, 826 (1924).
8 Whitaker v. Wright, 129 So. 889, 891-92 (1930) (emphasis added).
9 E.g., Revell v. Dishong, 175 So. 905, 908 (1937).
10 See Fla. R. Civ. P. 1.090(c); 30 Fla. Stat. Ann. 84 (Fla. R. Civ. P. 1.090 historical note).
11 See Ramagli Realty Co. v. Craver, 121 So. 2d 648, 653 (Fla. 1960), disapproved on other grounds, Shell v. State Rd. Dep’t, 135 So. 2d 857 (Fla. 1961).
12 Wagner, 263 So. 2d at 3, 4 (Fla. 1972).
13 Commercial Garden Mall, 453 So. 2d at 935-36 (Fla. 4th D.C.A. 1984).
14 Bettez, 510 So. 2d at 1242-43 (Fla. 3d D.C.A. 1987).
17 Id. at 1243.
18 Id. The Third District was perhaps following through on an observation it made a year earlier in Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386 (Fla. 3d D.C.A. 1986). In Francisco, the court noted that Henry P. Trawick had provided a “possible solution” to the “apparent conflict” between Commercial Garden Mall and Wagner by asserting in his well-known treatise on Florida practice that the “petition for rehearing” in Commercial Garden Mall was incorrectly designated, and actually constituted a “motion for reconsideration.” Id. at 1388 n.2 (citing, Henry P. Trawick, Trawick’s Florida Practice and Procedure §9-2 n.2 (1985 ed.)).
19 Capital Bank v. Knuck, 537 So. 2d 697, 698 (Fla. 3d D.C.A. 1989).
20 State ex rel. Cantera v. District Court of Appeal, Third Dist., 555 So. 2d 360, 362 (Fla. 1990).
21 See AC Holdings 2006, Inc. v. McCarty, 985 So. 2d 1123, 1125 (Fla. 3d D.C.A. 2008) (rejecting contention that trial court could not entertain second motion for reconsideration because prior motion for reconsideration had been denied).
22 Fla. R. Civ. P. 1.530(b).
23 E.g., Hyster Co. v. Morales, 591 So. 2d 1082, 1083 (Fla. 3d D.C.A. 1991).
24 See, e.g., Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615, 616 (Fla. 2d D.C.A. 1997).
25 Fla. R. App. P. 9.020(h).
26 E.g., Agere Sys., Inc. v. All American Crating, Inc., 931 So. 2d 244, 244 (Fla. 5th D.C.A. 2006).
27 See Fla. R. App. P. 9.130(b).
28 Agere, 931 So. 2d at 245.
29 E.g., Viana v. Jackson Mem’l Hosp., 917 So. 2d 224, 225 (Fla. 1st D.C.A. 2005).
30 Arce v. Maher Guiley and Maher, P.A., 936 So. 2d 682, 683 (Fla. 5th D.C.A. 2006).
31 Bass, 511 So. 2d 441, 441 (Fla. 1st D.C.A. 1987).
35 Id.; see also In re Estate of Zimbrick, 453 So. 2d 1155, 1158 (Fla. 4th D.C.A. 1984).
36 See Cantin v. St. Paul Fire & Marine, 864 So. 2d 558, 559 (Fla. 5th D.C.A. 2004).
38 Woods v. Huntington Fed. Sav. Bank, 622 So. 2d 1363, 1365 n.2 (Fla. 2d D.C.A. 1993).
39 Coldwell Banker Commercial v. Wightman, 649 So. 2d 346, 347 (Fla. 5th D.C.A. 1995).
40 See Monte Campbell Crane Co., Inc. v. Hancock, 510 So. 2d 1104, 1105 (Fla. 4th D.C.A. 1987).
41 See, e.g., AC Holdings 2006, Inc. v. McCarty, 985 So. 2d 1123, 1125 (Fla. 3d D.C.A. 2008) (“motion for rehearing” of order granting summary judgment); Ward v. Bragg, 957 So. 2d 670 (Fla. 1st D.C.A. 2007) (“motion for rehearing” of nonfinal order on child custody); H & M Hearing Assocs., LLC v. Nobile, 950 So. 2d 501, 502-503 (Fla. 2d D.C.A. 2007) (“motion for rehearing” of order denying temporary injunction); Jake and the Fat Man Bike Week USA, Inc. v. Biker Design, Inc., 919 So. 2d 476, 476 (Fla. 5th D.C.A. 2005) (“motion for rehearing” of order dismissing complaint without prejudice).
42 See Magnum Towing, Inc. v. Sunbeam Television Corp., 781 So. 2d 379, 380 (Fla. 3d D.C.A. 1998).
43 See, e.g., E-Z Marine Supply, Inc. v. Wachovia Commercial Mortg., Inc., 875 So. 2d 729 (Fla. 4th D.C.A. 2004).
44 See, e.g., Mike Snapp Bail Bonds v. Orange County, 913 So. 2d 88, 92 n.10 (Fla. 5th D.C.A. 2005); Huet v. Tromp, 912 So. 2d 336, 339 (Fla. 5th D.C.A. 2005); Bettez v. City of Miami, 510 So. 2d 1242, 1242-43 (Fla. 3d D.C.A. 1987); Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1388 n.2 (Fla. 3d D.C.A. 1986).
45 State Farm Mut. Auto. Ins. Co. v. Miller, 688 So. 2d 935, 936 (Fla. 4th D.C.A. 1996).
46 Huffman v. Little, 341 So. 2d 268, 269 (Fla. 2d D.C.A. 1976).
47 Abram v. Wolicki, 864 So. 2d 18, 19 (Fla. 4th D.C.A. 2003).
48 Fiber Crete Homes, Inc. v. Div. of Admin., 315 So. 2d 492, 493 (Fla. 4th D.C.A. 1975).
49 Henry P. Trawick, Florida Practice and Procedure §15.4, at 281 (2007-08 ed.); see also Specialty Restaurants Corp. v. Elliott, 924 So. 2d 834, 837 (Fla. 2d D.C.A. 2005).
50 Topps v. State, 865 So. 2d 1253, 1258 (Fla. 2004).
51 Hunter v. Dennies Contracting Co., Inc., 693 So. 2d 615, 616 (Fla. 2d D.C.A. 1997).
52 Monte Campbell Crane Co., Inc. v. Hancock, 510 So. 2d 1104, 1105 (Fla. 4th D.C.A. 1987).
53 E.g., Ryder Truck Rental, Inc. v. Patterson, 633 So. 2d 539, 539 (Fla. 2d D.C.A. 1994); City of Hollywood v. Cordasco, 575 So. 2d 301, 302 (Fla. 4th D.C.A. 1991); Arnold v. Massebeau, 493 So. 2d 91, 92 (Fla. 5th D.C.A. 1986); Associated Med. Insts., Inc. v. Imperatori, 338 So. 2d 74, 75 (Fla. 3d D.C.A. 1976).
54 Huet v. Tromp, 912 So. 2d 336, 339 (Fla. 5th D.C.A. 2005).
James H. Wyman is appellate counsel at the Ft. Lauderdale office of Hinshaw & Culbertson, LLP. His practice focuses on state and federal civil appeals and civil litigation support. Mr. Wyman received his J.D. from the Florida State University College of Law.
This column is submitted on behalf of the Appellate Practice Section, Siobhan Helene Shea, chair, and Tracy R. Gunn, Kristin A. Norse, and Heather M. Lammers, editors.