Preservation of Error: When a Motion for Rehearing is Necessary

This is the first in a series on tactical and timing considerations with respect to motions for rehearing.

Preservation of Error: When a Motion for Rehearing is NecessaryA motion for rehearing under Florida Rules of Civil Procedure 1.530 or 1.540  is a critical motion for the trial practitioner because in certain circumstances, a motion for rehearing must be filed to preserve an error for appellate review. In the absence of a motion for rehearing, an Appellant’s otherwise winning appellate argument will likely be affirmed.

Preservation generally

To preserve an error for appellate review, a party must make a contemporaneous objection, state the specific legal ground, and obtain a ruling by the trial court. In some instances, the objection must be followed by either requests for the court to admonish opposing counsel and a curative instruction to the jury or a motion for mistrial. The purposes of the preservation-of-error rule are to provide notice to the trial judge that an error may have been committed (so the judge has an opportunity to correct the error at an early stage of the proceedings) and to prevent the non-objecting party from gaining a tactical advantage at a later time. These considerations are based on practical necessity and basic fairness in the operation of the judicial system.

Objecting to an order?

But how does a party “object” to an error if it appears for the first time on the face of a final judgment or order? A motion for rehearing. Florida’s courts require a motion for rehearing to preserve errors appearing for the first time on the face of the final judgment or final order so that the trial court will have an opportunity to correct the error before an appeal. Holland v. Cheney Bros., Inc., 22 So. 3d 648, 650 (Fla. 1st DCA 2009). The rehearing requirement applies in both judicial and administrative settings, such as workers’ compensation claims. Id.

Examples of errors that can appear for the first time on the face of a final order or judgment

If a statute requires the trial court to make certain findings or evaluate a list of factors, for example equitable distribution or time sharing, the trial court’s failure to do so must also be brought to the trial court’s attention through a motion for rehearing before the order becomes final—rule 1.530(b) imposes a 15-day requirement. See A.M. v. Dep't of Children & Families, 118 So. 3d 998, 999 (Fla. 1st DCA 2013); Owens v. Owens, 973 So. 2d 1169, 1170 (Fla. 1st DCA 2007).

But when to appeal?

Fortunately, many motions for rehearing of final judgments toll the 30-day jurisdictional window to appeal.  However, as will be discussed in an upcoming blog post, some motions for rehearing will not toll the time to appeal and can result in the loss of the right to appeal—so be careful!

  • Jake  Monk

    Jake Monk is a litigation partner in the Miami office of Shutts & Bowen LLP, where he is a member of the Insurance Law and Appellate Practice Groups.

    Jake regularly represents insurance carriers and other corporations, defending them

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