Florida Appellate Law Blog

Practitioners know that civil and appellate rules contemplate motions for rehearing. But what is the difference between the two rules? Simply put, one leaves the door open for new arguments while the other keeps it shut.

Starting with the basics

Rule 1.530(a): “on a motion for rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.”

Rule 9.330(a): “state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.”

Cliff note translation

While a Rule 1.530 motion is your last chance to preserve issues for appeal and may raise new arguments, Rule 9.330 motions are limited to mistakes or oversights by the appellate court based on the issues already raised. As explained in the procedurally nuanced decision in Fitchner v. Lifesouth Community, 88 So. 3d 269 (Fla. 1st DCA 2012), Rule 1.530 is necessarily broader by procedural design.

In Fitchner, the appellate court considered a new argument raised in plaintiff’s 1.530 rehearing motion that followed the dismissal of its complaint. Although the trial court acknowledged the new argument established the dismissal was based on a statute that did not even apply, it denied the motion for rehearing after concluding the new argument was untimely. Observing trial courts have the discretion to ignore new arguments, the appellate court found the trial court’s ruling was “an unnecessary triumph of procedure over substance” and therefore an abuse of discretion. Criticizing the trial court’s failure to employ simple judicial economy to remedy the situation, the appellate court reversed the dismissal.

Ultimately, Rule 9.330 is as limited as Rule 1.530 is open-ended.  So while Rule 1.530 motions are expectedly commonplace, Rule 9.330 motions should be employed under very limited circumstances – and with extreme caution. Appellate courts have long since been frustrated with the perceived frequency of 9.330 motions, one court declaring such motions seemed “to occupy a singular status of abuse” in our legal system. Lawyers Title Insurance Corp., v. Reitzes, 631 So. 2d 110 (Fla. 4th DCA 1993). In those instances where the motion is viewed as simply bemoaning “the bottomless depth of displeasure” of an unsuccessful appeal in “open defiance of Rule 9.330,” sanctions may follow.  McDonnell v. Sanford Airport Authority, 2015 WL 2260504 (Fla. 5th DCA 2015).

So parties beware

Rule 1.530 may serve as a safety net for an overlooked argument, but as Fitchner emphasized, a trial has the discretion to ignore it.  If that happens, demonstrating the trial court abused its discretion may prove out of reach on appeal. Likewise, an ill-conceived Rule 9.330 motion may be branded “meritless and insulting” and result in an invitation to show cause why sanctions should not be imposed.

Take away

Think of a trial and appeal like baking a cake, i.e. Rule 1.530 lets you keep adding ingredients to your batter, but once you bake the cake, Rule 9.330 leaves you stuck with the ingredients you actually used.* So if you do not want the appellate court deservedly burning you and your appellate cakes to a crisp, make sure you know your rules and their recipes.

The *

But of course there is an exception – but only in exceptionally rare instances.  When reviewing a Rule 9.330 motion for rehearing, an appellate court may exercise its discretion to consider a new argument or information in effort to avoid fundamental error.

Relevant Resources

Fitchner v. Lifesouth Community, 88 So.3d 269 (Fla. 1^st DCA 2012)