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Trial Court Rehearings Compared with Appellate Court Rehearings

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Illustration of different paths

Illustration by Barbara Kelley

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. Sub-part (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] Sub-part (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 [R]ule 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) Motion for Rehearing. A motion for rehearing shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its order or decision. The motion shall not present issues not previously raised in the proceeding.…(b) A party shall not file more than [one] motion for rehearing, clarification, certification, or written opinion with respect to a particular order or decision of the court.[38]

In an appellate or review proceeding, unlike the motion for rehearing that may be filed in Florida trial courts, the motion for rehearing filed before a Florida appellate court is expressly limited to issues previously raised during the appellate or review proceeding, typically, in the appellate briefs. Appellants are not even permitted to raise fundamental error for the first time in a reply brief nor in an appellate motion for rehearing.[39] Spanning at least 133 years since First Nat’l Bank v. Ashmead, 2 So. 665 (Fla. 1887), the phrase “a motion for rehearing shall state with particularity the points of law or fact that the court has overlooked or misapprehended in its order or decision” has been interpreted not to permit the rehearing movant to argue within the motion but merely to point out to the appellate court, without argument, the points of law or fact that the appellate court has overlooked or misapprehended.[40] Rehearing advocacy is not permitted.[41]

The plain language of Rule 9.331 governs motions for rehearing en banc or by all the appellate district court judges in regular active service[42] and is even more restricted in content. Like Rule 9.330, the motion for rehearing en banc must be filed within 15 days of an appellate decision, but solely on the grounds that the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions.[43] No other grounds are permitted. If filed by an attorney on behalf of a client, the motion shall contain either or both of the following statements: “I express a belief, based on a reasoned and studied professional judgment, that the case or issue is of exceptional importance. Or I express a belief, based on a reasoned and studied professional judgment, that the panel decision is contrary to the following decision(s) of this court and that a consideration by the full court is necessary to maintain uniformity of decisions in this court (citing specifically the case or cases).”[44]

The governing rule makes clear that there are only two authorized grounds to file a motion for rehearing en banc:[45] 1) that the case or issue is of exceptional importance[46] or 2) that such en banc consideration is necessary to maintain uniformity in the court’s decisions.[47] Notably, absent an en banc opinion expressly receding from a point of law announced in previous opinions of a district court, “a trial court should not rely on the expressions of a three-judge panel as a basis to conclude that a previous opinion of another three-judge panel no longer carries the force of law.”[48]

There is clear, undeniable language in Rule 9.330 that establishes only one rehearing motion may be filed on appeal and, if applicable, should be combined with rehearing en banc. Again, litigants are simply not entitled to a second bite at the apple on appeal.

Primary Distinctions Cognizable Among the Relevant Rules

The plain meaning of Rule 1.530 indicates that the issues and arguments are without limit with respect to what may be raised in a post-final judgment motion for rehearing in the trial court. As long as the motion for rehearing is timely served and filed, Rule 1.530 appears to give the Florida state court litigant the greatest chance of success because the movant is substantively unrestricted. Contrarily, on appeal, Rule 9.330 expressly limits the movant to only identifying, without argument, the points of law or fact that the court has overlooked or misapprehended in its order or decision, and the motion may not present issues not previously raised in the appellate proceeding.[49] Thus, it should come as no surprise that most motions for rehearing filed in appellate proceedings are denied.[50] Likewise, Fla. R. App. P. 9.331 concerning motions for rehearing en banc is expressly limited to only two authorized grounds.[51] Like Rules 9.330 and 9.331, Rule 1.540 also expressly states the limited grounds upon which a litigant may submit a motion to vacate a final judgment,[52] and all these rules have strictly enforced time limits for a litigant to act. Thus, appellate rehearing is the polar opposite to trial rehearing.

Only the motion for reconsideration, which must be filed before entry of a final judgment, is not time limited and is substantively unrestricted, like the motion for rehearing. Significantly, whereas a timely motion for rehearing tolls the time for filing a notice of appeal, a motion for reconsideration does not toll time.[53] Unlike Rules 1.530, 9.330 and 9.331, there are no existing procedural rules that limit the number of motions for reconsideration that a litigant may file in a Florida trial court. However, a motion for reconsideration directed to an order denying rehearing is unauthorized.[54]

The Movant’s Eager Second Bite at the Rehearing Apple

Like the Florida Supreme Court determined 133 years ago in Jones v. Fox, 2 So. 853 (Fla. 1887), Black’s Law Dictionary presently defines rehearing to mean a “second consideration of cause for purpose of calling to court’s or administrative board’s attention any error, omission, or oversight in first consideration.”[55] Those litigators who practice law in both Florida trial and appellate courts should take note of the materially different legal standards insofar as the permitted content of rehearing motions filed in Florida trial courts compared to rehearing motions filed in Florida appellate courts.[56] On appeal, the right to file for rehearing and rehearing en banc should only be exercised as Rule 9.331 dictates; after a reasoned and studied professional judgment. Frankly, applying the trial court standard to rehearing motions filed on appeal is tantamount to requesting the appellate court to deny the relief requested. Litigators should also keep in mind that there must be an end to litigation.[57] Moreover, “there comes a point in every case that the losing party must accept that the case is over, and he or she did not prevail.”[58]

Notwithstanding the forum, Florida practitioners should always remember the intimate human element that is awakened when a Florida state court, comprised of human beings who infrequently admit they make mistakes,[59] is called upon to grant rehearing or reconsideration. That intimate human element is the natural ability and inability to self-police and admit the learned jurist erred. First, to obtain a favorable second ruling, the practitioner should submit a highly persuasive written motion to demonstrate that the court committed material error in the first instance. Showing mere harmless error would be legally insufficient.[60] Second, given human nature,[61] the likelihood of reaching the threshold, highly persuasive, motion for rehearing goal may only be reasonably considered either unlikely, very small, or nonexistent. This principle seems to hold true because all human beings are fallible,[62] yet many or, perhaps, most persons are loathe to admit they made a mistake;[63] the intimate human element awakened. Generally, the chances of prevailing the second time upon rehearing or reconsideration would not appear to favor the movant.[64] Unfortunately, these appear to be the actual rehearing and reconsideration conditions or realities that may not inspire the court when the court addresses the remains of the day.[65]

[1] Seigler v. Bell, 148 So. 3d 473, 478-79 (Fla. 5th DCA 2014) (“Motions for ‘rehearing’ pursuant to Florida Rule of Civil Procedure 1.530 apply only to final judgments and those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.” “Motions for ‘reconsideration’ apply to nonfinal, interlocutory orders, and are based on a trial court’s inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action.”) (citing Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1390 n.6 (Fla. 3d DCA 1986); Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998)).

[2] Seigler, 148 So. 3d at 479 (citing Magnum Towing, Inc. v. Sunbeam Television Corp., 781 So. 2d 379, 380 (Fla. 3d DCA 1998)) (“[T]reating a motion that was ‘mislabeled’ a motion for ‘reconsideration’ as a [R]ule 1.530 motion for ‘rehearing’ because it was aimed at a final order.” (citing Rebholz v. Floyd, 327 So. 2d 806 (Fla. 2d DCA 1976)); Bettez v. City of Miami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987) (“[T]reating a motion that was ‘mislabeled’ a motion for ‘rehearing under [R]ule 1.530’ as a motion for ‘reconsideration’ because it was aimed at an interlocutory ruling” (citing Alabama Hotel Co. v. J.L. Mott Iron Works, 86 Fla. 608, 98 So. 825 ([Fla.] 1924)).

[3] State v. Reaves, 609 So. 2d 701, 707 (Fla. 4th DCA 1992); Lundstrom v. Lyon, 86 So. 2d 771, 772 (Fla. 1956) (“The supreme court shall have the following powers, and action taken by it thereunder shall have the force of law until otherwise provided by the legislature, to-wit: (1) [t]o make rules of practice, etc. — [t]o make, amend, annul, or modify rules of practice or pleading of the supreme court or any other court as it may see fit not inconsistent with the law.”); Keen v. State, 103 So. 399, 400 (Fla. 1925) (providing, in material part, “the Supreme Court has power to make rules of practice which shall have the force of law”).

[4] Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 611 (Fla. 4th DCA 1975) (providing, in relevant part, “our Rules of Civil Procedure are patterned very closely after the Federal rules”); Deltona Corp. v. Bailey, 336 So. 2d 1163, 1170 (Fla. 1976) (same); Jones v. Seaboard Coast Line RR Co., 297 So. 2d 861, 863 (Fla. 2d DCA 1974) (“To begin with, it’s well known that our Rules of Civil Procedure are patterned very closely after the [f]ederal rules.”).

[5] VLX Properties, Inc. v. Southern States Util., Inc., 792 So. 2d 504, 509 (Fla. 5th DCA 2001) (en banc); see Blackwell v. State, 86 So. 224, 237-38 (Fla. 1920) (Browne, C.J., dissenting) (In such a case, as forcibly said by Chief Justice Bleckley, in Ellison v. Georgia R.R. & Banking Co., 87 Ga. 691 [(Ga. 1891)], the maxim for a [s]upreme [c]ourt, supreme in the majesty of duty as well as in the majesty of power, is not stare decisis, but ‘fiat justitia.’ Let this decision be right, whether other decisions were right or not.”); Westphal v. City of St. Petersburg/City of St. Petersburg Risk Mgmt., 122 So. 3d 440, 447 (Fla. 1st DCA 2013) (“Although fidelity to precedent is the first choice, an appellate court must be willing to consider the correctness of its prior work and, above all, willing to admit that it has made a mistake.”), quashed on other grounds, Westphal v. City of St. Petersburg, 194 So. 3d 311, 314 (Fla. 2016); Mills v. Moore, 786 So. 2d 532, 544 (Fla. 2001) (Anstead, J., dissenting) (When a life is at stake, this Court should not hesitate to admit its past mistakes. We did so in Cochran [v. State, 547 So. 2d 928 (Fla. 1989)] on this precise issue. We should do so here.”); Headley v. Baron, 228 So. 2d 281, 286 (Fla. 1969) (“on rehearing”) (“We have carefully re-examined the entire record presented before us in this case, and must candidly admit that we were mistaken in finding that Glenn Baron confessed before the grand jury to accepting two bribes of $3,000.00 each.”); Parks v. St. Lucie Plaza, 353 So. 2d 597, 598 (Fla. 4th DCA 1977) (“Moreover in an extraordinary hearing, held in an attempt to set the summary judgment aside, some two months after rendition, the trial judge frankly and honestly admitted that he had made a mistake and that the [p]laintiffs (appellants) are entitled to the relief sought. We commend him for his forthrightness in so doing.”); Land v. State, 293 So. 2d 704, 706 (Fla. 1974) (“The trial court recognized its mistake, and admitted having erred in its [o]rder on [m]otion for [n]ew [t]rial.”).

[6] Fla. R. Civ. P. 1.530(b) (“A motion for new trial or for rehearing shall be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.”).

[7] See Fla. R. Civ. P. 1.100(b). See note 10.

[8] Balmoral Condo. Ass’n v. Grimaldi, 107 So. 3d 1149, 1151 (Fla. 3d DCA 2013).

[9] Capital Bank v. Knuck, 537 So. 2d 697, 698 (Fla. 3d DCA 1989) (citations omitted); see Fla. R. Civ. P. 1.090(b) (“[T]he court…may not extend the time for making a motion…for rehearing.”).

[10] Fassy v. Crowley, 884 So. 2d 359, 362-63 (Fla. 2d DCA 2004) (“Nonfinal orders are generally reviewable only on plenary appeal of the final order disposing of the case.”); Centennial Ins. Co. v. Life Bank, 953 So. 2d 1, 3 (Fla. 2d DCA 2006) (“Because the underlying action was not yet resolved, the First District held that the order was not a final appealable order and that it was not appealable as a nonfinal order under then-[R]ule 9.130(a)(3)(C)(iv), which permitted an appeal from a nonfinal order determining liability in favor of a party seeking affirmative relief.”) (citing Canal Ins. Co. v. Reed, 653 So. 2d 1085 (Fla. 1st DCA 1995)); Dyes v. Dyes, 454 So. 2d 746, 747 (Fla. 1st DCA 1984) (“The protective order is neither a final order nor a nonfinal, interlocutory order reviewable pursuant to Florida Rule of Appellate Procedure 9.130.…The order partially granting appellee’s motion for judgment on the pleadings is likewise neither a final order nor a nonfinal, interlocutory order reviewable pursuant to Fla. R. App. P. 9.130.”) (citing Sgrignuoili v. Barakat, 384 So. 2d 657 (Fla. 3d DCA 1980)).

[11] Fla. Const. art. V §5(b) (“The circuit courts shall have original jurisdiction not vested in the county courts, and jurisdiction of appeals when provided by general law.”); Fla. R. App. P. 9.030(c)(1) (“The circuit courts shall review, by appeal….”).

[12] Calabro v. State, 995 So. 2d 307, 314 (Fla. 2008) (“This [c]ourt has held from time immemorial that we must primarily determine the effect and purpose of statutes and rules of court by first examining the actual words used in the statute or rule and determine the plain meaning of those words”) (citing Holly v. Auld, 450 So. 2d 217, 219 (Fla. 1984), citing A.R. Douglass, Inc. v. McRainey, 137 So. 157, 159 ([Fla.] 1931)).

[13] Fla. R. Civ. P. 1.530.

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] ARC HUD I, LLC v. Ebbert, 212 So. 3d 513, 516 (Fla. 2d DCA 2017) (“We also note that ARC HUD I was not precluded from filing an amended affidavit in connection with its motion for rehearing.”).

[21] Grimaldi, 107 So. 3d at 1151 (same).

[22] Van v. Schmidt, 122 So. 3d 243, 254 (Fla. 2013) (“When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion.”); Petrucci v. Brinson, 179 So. 3d 398, 400 (Fla. 1st DCA 2015) (“A trial court has broad discretion to grant a rehearing of a summary judgment when the party seeking rehearing submits matters that would have created an issue precluding summary judgment.”) (citing Fatherly v. Cal. Fed. Bank, FSB, 703 So. 2d 1101, 1102 (Fla. 2d DCA 1997)); Grimaldi, 107 So. 3d at 1151 (“The grounds for rehearing under [R]ule 1.530 are broad.”).

[23] Lacombe v. Deutsche Bank Nat’l Trust Co., 149 So. 3d 152 (Fla. 1st DCA 2014) (“Because the final judgment was based on a bench trial and Appellants challenge the sufficiency of the evidence to support the judgment, the general rule requiring specific contemporaneous objection to preserve the asserted error for appeal does not apply. Rather, [Fla. R. Civ. P. 1.530(e)] allows review of the sufficiency of the evidence despite any deficiencies in the objections made at trial and absence of post-trial motions. Rule 1.530(e) applies to appeals challenging the sufficiency of the evidence in mortgage foreclosure actions after bench trial.”) (citing Correa v. U.S. Bank N.A., 118 So. 3d 952, 954 (Fla. 2d DCA 2013)).

[24] Pensacola Beach Pier, Inc. v. King, 66 So. 3d 321, 325 (Fla. 1st DCA 2011) (“In order to be preserved for further review by a higher court, 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.”) (citing Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 (Fla. 2005) (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 1985))); Winchel v. PennyMac Corp., 222 So. 3d 639, 644 n.4 (Fla. 2d DCA 2017) (“As such, rule 1.530(e)’s exception to the general rules of preservation, which applies in this case, could not have applied in Rosen” [v. Wilson, 922 So. 2d 401 (Fla. 4th DCA 2006)]).

[25] Grimaldi, 107 So. 3d at 1151 (same) (quoting Langer v. Aerovias, S.A., 584 So. 2d 175, 176 (Fla. 3d DCA 1991)).

[26] Arleo v. Garcia, 695 So. 2d 862, 862 (Fla. 4th DCA 1997) (per curiam) (“[T]rial courts have no authority to permit the filing of any further motion for rehearing beyond the one authorized by [R]ule 1.530.”) (citing Capital Bank v. Knuck, 537 So. 2d 697, 698 (Fla. 3d DCA 1989)).

[27] Food Lion v. Jackson, 712 So. 2d 800, 803 (Fla. 5th DCA 1998) (Thompson, J., dissenting) (“Food Lion should not be given an opportunity for a second bite at the liability apple because it neither complied with the statute nor filed a motion for a new trial pursuant to rule 1.530(a), Florida Rules of Civil Procedure.”); Cleveland v. Crown Financial, LLC, 212 So. 3d 1065, 1069 (Fla. 1st DCA 2017) (citing Correa v. U.S. Bank N.A., 118 So. 3d 952, 956 (Fla. 2d DCA 2013) (“citing cases refusing to give a party a second bite at the apple”)).

[28] Fla. R. Civ. P. 1.530(b).

[29] Aubourg v. Erazo, 922 So. 2d 1106, 1108 (Fla. 4th DCA 2006) (en banc) (“As appellee argues, the trial court is entitled to assume that the party’s motion for new trial contains all relevant arguments such that an oral hearing is unnecessary before the court denies the motion. Further, if the court contemplates granting the motion for new trial, the court can satisfy due process by holding a hearing or giving the opposing party an opportunity to be heard through written responses.”); but see Freeland v. Freeland, 974 So. 2d 477, 480 (Fla. 2d DCA 2008) (“It is clear, however, that the motion had sufficient merit that the trial court needed to conduct a hearing to consider the merits of the motion [for rehearing]. To the extent that the trial court denied a hearing on this issue, it abused its discretion.”).

[30] Grimaldi, 107 So. 3d at 1150 (“This case illustrates the danger of conflating the very different approaches to rehear or vacate final orders provided by [R]ules 1.530 and 1.540.”).

[31] Id. at 1152.

[32] Bank of Am., N.A. v. Lane, 76 So. 3d 1007, 1008 (Fla. 1st DCA 2011).

[33] Grimaldi, 107 So. 3d at 1152 (specifying the limited number of grounds for a Rule 1.540(b) motion to vacate); Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998) (“Rule 1.540 was designed to operate under a limited set of circumstances; it was not intended to serve as a substitute for appellate review of judicial error.”) (citing A.W. Baylor Plastering, Inc. v. Mellon Stuart Co., 611 So. 2d 108, 109 (Fla. 5th DCA 1992)).

[34] Voce v. Wachovia Mortgage, FSB, 174 So. 3d 545, 547 (Fla. 4th DCA 2015).

[35] Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1389 (Fla. 3d DCA 1986) (same) (citing Pruitt v. Brock, 437 So. 2d 768, 773 (Fla. 1st DCA 1983); St. Cloud Utilities v. Moore, 410 So. 2d 973, 974 n.3 (Fla. 5th DCA 1982)).

[36] Romero v. Wells Fargo Bank, N.A., 209 So. 3d 633, 635 (Fla. 2d DCA 2017) (“Once beyond the reach of [R]ule 1.540(b), the final judgment of foreclosure passes into the unassailable realm of finality.”) (quoting Holm v. Demetree, 681 So. 2d 868, 869 (Fla. 5th DCA 1996)); Voce v. Wachovia Mortgage, FSB, 174 So. 3d 545, 547 (Fla. 4th DCA 2015) (same) (quoting Bank One, N.A. v. Batronie, 884 So. 2d 346, 349 (Fla. 2d DCA 2004)); Barnett v. Barnett, 718 So. 2d 302, 304 (Fla. 2d DCA 1998) (citing Holm v. Demetree, 681 So. 2d 868, 869 (Fla. 5th DCA 1996) (“holding that correctness of judge’s ruling is not an appropriate issue on motion for relief from judgment; when not appealed, judgment has passed into the unassailable realm of finality”)). See note 57.

[37] See note 12.

[38] Fla. R. App. P. 9.330(a)(1)(2)(A). Sub-parts (B), Motion for Clarification, (C) Motion for Certification, and (D) Motion for Written Opinion, were omitted as outside the scope of this article.

[39] See Williams v. State, 845 So. 2d 987, 989 (Fla. 1st DCA 2003) (“Below, the appellant failed to preserve any error as to the jury instructions and, on appeal, did not argue that the instructions were improper and constituted fundamental error, until his reply brief. Because appellant failed to raise these issues in the initial brief, we cannot consider them”) (citing Reed v. State, 837 So. 2d 366 (Fla. 2002); Medrano v. State, 795 So. 2d 1009, 1010 (Fla. 4th DCA 2001)); Ferguson v. State, 200 So. 3d 106, 111 (Fla. 5th DCA 2015) (“However, Ferguson did not preserve any claim of fundamental error because the issue was only presented in his reply brief”) (citing Wheeler v. State, 87 So. 3d 5, 6 (Fla. 5th DCA 2012) (“determining that appellate court was not required to undertake fundamental error analysis where defendant did not raise claim of fundamental error in initial appellate brief”)); Lowry v. State, 963 So. 2d 321, 328 (Fla. 5th DCA 2007) (“However, unfamiliarity with fundamental error doctrine and Florida Rule of Appellate Procedure 9.330(a) is not a sufficient basis for a motion for rehearing.”) (citing Lawyers Title Ins. Corp. v. Reitzes, 631 So. 2d 1100, 1100-01 (Fla. 4th DCA 1993)).

[40] See, e.g., Williams v. State, 113 So. 2d 833, 833 (Fla. 1959) (per curiam) (“Because of a palpable and egregious violation of Florida Appellate Rule 3.14, subd. b, 31 F.S.A. providing that petitions for rehearing must set forth concisely, and without argument, the alleged omissions, oversights, causes or grounds on which it is based….It is ordered that said petition be and the same is hereby stricken.”); Cleveland v. State, 887 So. 2d 362, 364 (Fla. 5th DCA 2004) (“Motions for rehearing are strictly limited to calling an appellate court’s attention-without argument-to something the appellate court has overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy.”) (citing Goter v. Brown, 682 So. 2d 155 (Fla. 4th DCA 1996), rev. denied, 690 So. 2d 1299 (Fla. 1997)); Goter, 682 So. 2d at 158 (“Motions for rehearing are strictly limited to calling our attention-without argument-to something we have obviously overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy. It should be demonstrative only — i.e., merely point to the overlooked or misunderstood fact or circumstance. If we want additional argument, we know how to say so.”) (emphasis in original); First Nat’l Bank v. Ashmead, 2 So. 665, 666 (Fla. 1887) (“A petition for a rehearing is a pleading, and, according to the rule, it should set forth concisely the particular omission or cause for which the judgment is supposed to be erroneous. Such alleged omission or cause should be simply stated in order that the court may consider it, (without argument) and determine whether it is a point which has failed to receive proper deliberation, and suggests any error of judgment, and the propriety of a rehearing.”) (emphasis in original); Dabbs v. State, 230 So. 3d 475, 476 (Fla. 4th DCA 2017) (“A motion for rehearing is strictly limited to calling the Court’s attention — without argument — to something obviously overlooked or misapprehended and is not a vehicle for counsel or the party to continue its attempts at advocacy.”) (citing Goter, 682 So. 2d at 158 (emphasis in original)); Barnes v. State, 743 So. 2d 1105 (Fla. 4th DCA 1999): “We had thought we made quite clear 3 years ago. .. that we will not suffer a flouting of the requirement that motions for rehearing shall abstain from argument. Motions for rehearing are strictly limited to calling our attention — without argument — to something we have obviously overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy. It should be demonstrative only — i.e., merely point to the overlooked or misunderstood fact or circumstance. If we want additional argument, we know how to say so.” (emphasis in original). Id. at 1113 (quoting Goter, 682 So. 2d at 158).

[41] See Cleveland, Goter, Dabbs, and Barnes. A frequent error on appeal upon rehearing.

[42] As presently constituted, the First DCA is comprised of 13 judges, the Second DCA is comprised of 16 judges, the Third DCA is comprised of 10 judges, the Fourth DCA is comprised of 12 judges, and the Fifth DCA is comprised of 12 judges, which includes two senior judges.

[43] Fla. R. App. P. 9.331(d)(1); 9.331(d)(2). The rule only applies to the district courts of appeal.

[44] Id.

[45] See, e.g., University of Miami v. Wilson, 948 So. 2d 774, 788 (Fla. 3d DCA 2006) (Shepherd, J., concurring) (“Florida Rule of Appellate Procedure 9.331(d) authorizes motions for rehearing en banc in but two circumstances.”); Morris v. State, 789 So. 2d 1032, 1037 (Fla. 1st DCA 2001) (Browning, J., dissenting) (“Fla. R. App. P. 9.331(a) provides two bases for en banc consideration.”); State v. Navarro, 464 So. 2d 137, 141 (Fla. 3d DCA 1984) (Hubbart, J., concurring) (“There are thus two alternative bases for en banc review.”); Mitchell v. Brogden, 249 So. 3d 781, 783 (Fla. 1st DCA 2018) (Makar, J., dissenting) (“Decisional uniformity is so important that it is one of only two grounds for en banc review, the other involving cases of exceptional importance.”); Romero v. State, 870 So. 2d 816, 818 (Fla. 2004) (“Florida Rule of Appellate Procedure 9.331(d), which governs motions for rehearing en banc, states that a party may move for an en banc rehearing solely on the grounds that the case is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions.”); Jedak Corp. v. Seabreeze Office Assoc., LLC, 248 So. 3d 242, 244 (Fla. 5th DCA 2018) (“Pursuant to Florida Rule of Appellate Procedure 9.331(d)(1), there are only two bases for requesting rehearing en banc: (1) that the case or issue is of exceptional importance or (2) that rehearing is necessary to maintain uniformity in the court’s decisions.”).

[46] See, e.g., Ortiz v. State, 24 So. 3d 596, 597 (Fla. 5th DCA 2009) (“First, we note that the present case fleshes out the borders of both the ‘feared medical emergency’ exception to the warrant requirement articulated by the Florida Supreme Court in Riggs v. State, 918 So. 2d 274 (Fla. 2005), and the now well-recognized community caretaking function of police officers. Unlike the dissent, we view both issues to be of exceptional importance.”); Marr v. State, 470 So. 2d 703, 708 (Fla. 1st DCA 1985) (“The Court, by majority vote, has determined that this case involves an issue of exceptional importance under Rule 9.331, Florida Rules of Appellate Procedure, as amended effective January 1, 1985, Re Rules of Appellate Procedure, 463 So. 2d 1114 (Fla. 1984), and therefore convened an en banc conference for consideration of appellee’s motion for rehearing en banc of the panel decision released January 29, 1985.”); see also State v. Georgoudiou, 560 So. 2d 1241, 1247-48 (Fla. 5th DCA 1990) (Cowart, J., dissenting) (“‘Exceptional importance’ cannot mean exceptionally important to the parties because every case is exceptionally important to the parties and counsel. ‘Exceptional importance’ surely does not mean any case in which the en banc majority disagrees with the reasoning or result of a panel majority. ‘Exceptional importance’ must be interpreted to mean a case exceptionally important to the jurisprudence of the [s]tate as a judicial precedent.”); Chancellor Media Whiteco Outdoor v. Dep’t of Transp., 795 So. 2d 991, 997 (Fla. 5th DCA 2001) (Pleus, J., dissenting) (“I agree with Judge Cowart, who dissented in State v. Georgoudiou, 560 So. 2d 1241 (Fla. 5th DCA 1990), that ‘exceptional importance’ does not mean any case in which the en banc majority disagrees with the reasoning or result of a panel majority. Exceptional importance means a case exceptionally important to the jurisprudence of Florida as a judicial precedent.”); Fla. Dep’t of Agriculture & Consumer Servs. v. Lopez-Brignoni, 114 So. 3d 1135, 1136 (Fla. 3d DCA 2013) (Logue, J., dissenting) (“I believe this case warrants en banc review. Whether or not the majority’s opinion is correct, the decision will impact the 83,630 homeowners whose trees were destroyed and the budget of the State of Florida. Because ‘the outcome of the case (or its notoriety) is of greater moment or impact within the community’ and ‘the case is important beyond the effect it will have on the litigants,’ this matter presents a textbook example of a case of exceptional importance that should be considered en banc, even under the very exacting, but proper standard set forth by Judge Shepherd in University of Miami v. Wilson, 948 So. 2d 774, 791 (Fla. 3d DCA 2006) (Shepherd, J., concurring).”); State v. Diamond, 553 So. 2d 1185, 1192 (Fla. 1st DCA 1988) (per curiam) (“The court has chosen to consider this case en banc pursuant to Fla. R. App. P. 9.331, upon a majority vote that en banc consideration is necessary because the case is of exceptional importance.”); Englander v. St. Francis Hosp., 506 So. 2d 423, 424 n.1 (Fla. 3d DCA 1987) (“Our basis for granting rehearing en banc is that the case is of exceptional importance.”); but see State v. Dorian, 619 So. 2d 311, 311-14 (Fla. 3d DCA 1993) (en banc) (failing to disclose in majority opinion why case was considered en banc).

[47] See, e.g., Schreiber v. Chase Fed. Sav. & Loan Ass’n, 422 So. 2d 911, 912 (Fla. 3d DCA 1982) (“The court has granted the appellant’s motion for rehearing en banc, because, as demonstrated by the uncontested factual recitals in the dissenting opinion, the panel majority’s affirmance, 424 So. 2d 799, has created a lack of uniformity within the meaning of Fla. R. App. P. 9.331(a) in this court’s decisions in this case and in Florida National Bank & Trust Co. at Miami v. Havris, 366 So. 2d 491 (Fla. 3d DCA 1979). Upon consideration of the merits, we adhere to Havris and adopt the dissenting panel opinion as the opinion and decision of this court.”), quashed on other grounds, Chase Fed. Sav. & Loan Ass’n v. Schreiber, 479 So. 2d 90 (Fla. 1986); Finney v. State, 420 So. 2d 639, 640-41 (Fla. 3d DCA 1982) (“On its own motion, this court granted a rehearing en banc to review the original majority opinion due to a conflict in Furr v. State, 420 So. 2d 341 (Fla. 3d DCA 1982).”); Green v. Green, 501 So. 2d 1306, 1306 (Fla. 4th DCA 1986) (“Appellee sought rehearing en banc, contending affirmance was necessary to maintain uniformity in this court’s decisions. The bases for the alleged conflict were Beville v. Beville, 415 So. 2d 151 (Fla. 4th DCA 1982), and Burrows v. Burrows, 384 So. 2d 1312 (Fla. 4th DCA 1980).”); Hearn Properties, Inc. v. Cruce, 20 So. 3d 877, 878 (Fla. 1st DCA 2009) (“As an en banc court, we overrule our decisions that cannot be reconciled with contrary decisions of the Supreme Court of Florida, specifically Van Meter v. Kelsey, 91 So. 2d 327 (Fla. 1956), and Shaw v. Williams, 50 So. 2d 125 (Fla. 1950), and reverse the judgment below on the authority of Van Meter and Shaw.”); VLX Properties, Inc. v. Southern States Util., Inc., 792 So. 2d 504, 506 (Fla. 5th DCA 2001) (“We grant en banc review of a panel opinion which reversed the trial court’s decision that inverse condemnation had not been established because the trial court, the panel determined, had applied the wrong standard. The panel decision was based on our previous decision in this case, VLX Properties, Inc. v. Southern States Utilities, Inc., 701 So. 2d 391 (Fla. 5th DCA 1997), hereinafter referred to as ‘VLX1.’ Because we find that this court erred in VLX1 and that to adhere to that decision would work ‘a manifest injustice,’ we recede from VLX1 and thereby affirm the decision on appeal.”).

[48] Wood v. Fraser, 677 So. 2d 15, 18 (Fla. 2d DCA 1996); Tracy v. Wells Fargo Bank, N.A., as Trustee, 264 So. 3d 1152, 1175 (Fla. 2d DCA 2019) (same) (Sleet, J., concurring, in part, dissenting, in part) (quoting Fraser).

[49] See note 38; Lowe Inv. Corp. v. Clemente, 685 So. 2d 84, 86 (Fla. 2d DCA 1996) (“Lowe’s motion does not contain a point of law or fact that this court overlooked or misapprehended, which is the standard for rehearing on appeal.…The often-quoted passage from Judge Wigginton’s opinion in State v. Green, 105 So. 2d 817 (Fla. 1st DCA 1958), cert. discharged, 112 So. 2d 571 (Fla. 1959), continues to be instructive: Certainly it is not the function of a petition for rehearing to furnish a medium through which counsel may advise the court that they disagree with its conclusion, to reargue matters already discussed in briefs and oral argument and necessarily considered by the court, or to request the court to change its mind as to a matter which has already received the careful attention of the judges, or to further delay the termination of litigation.”).

[50] See Whipple v. State, 431 So. 2d 1011, 1013 (Fla. 1st DCA 1983) (“In 1982, for example, motions for rehearing were filed in about one out of every four cases we heard on the merits. With very few exceptions they were denied.”).

[51] See note 43.

[52] See note 33.

[53] Richardson v. Watson, 611 So. 2d 1254, 1255 (Fla. 2d DCA 1992) (per curiam).

[54] Smith v. State, 967 So. 2d 1008, 1008 (Fla. 1st DCA 2007) (per curiam) (“Appellant’s Motion For Reconsideration Of Defendant’s Motion For Rehearing, is an unauthorized motion for rehearing and does not delay rendition of the trial court’s order of September 27, 2006.”) (citing Fla. R. App. P. 9.020(h); Morris v. State, 630 So. 2d 232 (Fla. 3d DCA 1994)).

[55] Black’s Law Dictionary 891 (6th ed. 1991). See note 25. Florida became a state in 1845.

[56] Fitchner v. Lifesouth Cmty. Blood Centers, Inc., 88 So. 3d 269, 278 (Fla. 1st DCA 2012) (“It is clear from a comparison of the text of these two rules that the standard to be applied in trial courts is much broader than the one that applies on appeal.”).

[57] Alhambra Homeowners Ass’n v. Asad, 943 So. 2d 316, 319 (Fla. 4th DCA 2006) (providing, in material part, “there must be some end to litigation on the merits”); West v. Kawasaki Motors Mfg. Corp., 595 So. 2d 92, 96 (Fla. 3d DCA 1992) (“There must be an end to litigation.”); Gonzalez v. Stern, 244 So. 3d 1187, 1187 (Fla. 5th DCA 2018) (“There comes a point when litigation must end. We are at that point in the instant case.”).

[58] Ardis v. Pensacola State College, 128 So. 3d 260, 263 (Fla. 1st DCA 2013) (per curiam).

[59] See note 5.

[60] See Special v. West Boca Med. Ctr., 160 So. 3d 1251, 1256 (Fla. 2014) (“To test for harmless error, the beneficiary of the error has the burden to prove that the error complained of did not contribute to the verdict. Alternatively stated, the beneficiary of the error must prove that there is no reasonable possibility that the error contributed to the verdict.”); see also Hurtado v. Desouza, 166 So. 3d 831, 835 (Fla. 4th DCA 2015) (“on motion for rehearing”) (“We initially found error in the admission of both the mental anguish testimony and the plaintiff’s financial problems following the accident, but found the errors harmless. We therefore affirmed the judgment. But, under the new standard announced in Special v. West Boca Medical Center, 160 So. 3d 1251 (Fla. 2014), we can no longer say that the errors were harmless.”).

[61] Matarranz v. State, 133 So. 3d 473, 485 (Fla. 2013) (“This [c]ourt is keenly aware of the unique biases, prejudices, predilections, predispositions, and viewpoints that each of us possesses and that cannot be altered or undone by the court or counsel over the course of voir dire. These proclivities may be neither wrong nor perverse. Rather, they are realities of human nature.”); Rollo v. Wiggins, 5 So. 2d 458, 462 (Fla. 1942) (“We are well aware that the ancient doctrine, that favor is not to be presumed against a judge, has been overruled by practical modern legislation, and that it can be applied that a judge should be absolutely free from bias of any kind. It can also be insisted that even judges are not exempt from the frailties of human nature.”); see also Da Costa v. Dibble, 33 So. 466, 471 (Fla. 1902) (Carter, J., dissenting) (“The majority opinion in this case seems to proceed upon the theory that upon a petition for a rehearing it is only necessary for the court to ascertain that it did not overlook the particular matter complained of, and that, if the court gave careful consideration to such matter upon the first hearing, its conclusions of law thereon must necessarily be right. But experience proves that such assumption of infallibility is contrary to the nature of man, and the rule respecting rehearings is based upon this trait of human nature.”).

[62] Gelsthorpe v. Weinstein, 897 So. 2d 504, 509 n.9 (Fla. 2d DCA 2005) (“When a witness gives his personal opinion on the stand — even if he qualifies as an expert — the jurors may temper their acceptance of his testimony with a healthy skepticism born of their knowledge that all human beings are fallible.”); Casas v. Siemens Energy & Automation, Inc., 1 So. 3d 294, 298 (Fla. 3d DCA 2009) (“Safety devices are required precisely because human beings are fallible”). See note 5.

[63] The Florida Bar v. Rotstein, 835 So. 2d 241, 246 (Fla. 2003) (per curiam) (“Instead of being truthful and admitting his mistake from the start, he engaged in the extremely dishonest and fraudulent misconduct of creating a backdated letter to his client. He then repeatedly made intentional misrepresentations to the Bar. Rotstein has demonstrated basic, fundamental dishonesty.”); see Florida Bd. of Bar Examiners Re M.R.I., 623 So. 2d 1178, 1180 (Fla. 1993) (per curiam) (“This [c]ourt has made it abundantly clear that candor is essential to be admitted to the Bar. As we stated previously, while there is no litmus test by which to determine whether an applicant for admission to the Bar possesses good moral character, we have said that no moral character qualification for Bar membership is more important than truthfulness and candor.”); cf. The Florida Bar v. Swidler, 173 So. 2d 705, 706 (Fla. 1965) (“It is inevitable that lawyers being human beings, and therefore fallible, will make mistakes that may harmfully affect their clients. When this occurs and it is clear that the attorney was at fault, as was admitted in this case, the attorney must act with dispatch to rectify his error with least inconvenience and harm to his client.”).

[64] See Lowe Inv. Corp. v. Clemente, 685 So. 2d 84, 85 (Fla. 2d DCA 1996) (“Some losing advocates, as here, apparently believe that a request for rehearing has a better chance for success if demanded in the strongest of terms.”) (citing Patton v. State Dep’t. of Health & Rehabilitative Servs., 597 So. 2d 302, 303 (Fla. 2d DCA 1991) (“We also understand that human emotions occasionally cause such motions to be written with stronger rhetoric than is truly necessary or effective.”)). See note 50.

[65] See Lundy v. Hochberg, 79 Fed. App’x 503, 504 (3d Cir. 2003) (“Before us are the remains of the day”: multiple challenges to several trial court rulings by Marvin Lundy.).


H. Michael MuñizH. Michael MuñizB.C.S., is appellate counsel at Kass Shuler, P.A., in Boca Raton, specializing in appeals and trial support. He obtained a B.S. in business administration from SUNY at Buffalo; a CPA license from the Board of Accountancy of the State of Florida; and a J.D. from Nova Southeastern University.