Rule 1.530(a) of the Florida Rules of Civil Procedure authorizes a motion for rehearing directed to a final order entered after a summary disposition or bench trial. There are benefits to filing a motion for rehearing; however, practitioners should keep in mind the risk in filing an untimely motion and how it affects the appeal process.
(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. 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.
The purpose of such a motion is to provide the trial court an opportunity to correct an error if it is convinced it has erred. As practitioners know, filing a motion for rehearing generally suspends rendition (tolls the time for filing an appeal) of a final judgment until the trial court disposes of the rehearing motion. Fla. R. App. P. 9.020(i).
In some circumstances, a motion for rehearing can be crucial to preserve issues for appellate review. See, e.g., Pensacola Beach Pier, Inc. v. King and Preservation of Error: When a Motion for Rehearing is Necessary.
Timely filing of a motion for rehearing is critical
But, can filing a motion for rehearing blow a party’s right to appeal? Yes! Under Rule 9.020(i), rendition of a final order is suspended when “there has been filed in the lower tribunal an authorized and timely” motion for rehearing. Filing an untimely or unauthorized rehearing motion does not toll the time to file a notice of appeal. In determining whether a motion for rehearing will toll the time for filing a notice of appeal, it is critical to make sure that the motion is both authorized and timely.
Three common examples when a rehearing motion will not toll the time to appeal an order that otherwise is reviewable:
- Late motion for rehearing of final judgment: Rule 1.530(b) requires the rehearing motion to be served not later than 15 days after the date of filing of the judgment. So a motion for rehearing served 17 days after the date the judgment is filed is untimely. Assume the trial court denies the untimely motion 31 days after the judgment was entered and the losing party files a notice of appeal the next day. In that scenario, the appellate court lacks jurisdiction to review the final judgment and the appeal will be dismissed. See, MCB Oil Co. v. City of Gainesville, 932 So. 2d 504 (Fla. 1st DCA 2006). In that same scenario, however, a notice of appeal of the judgment would be timely so long as the notice was filed within thirty days of the date the judgment was filed.
- Motion for rehearing directed to non-final order: Rule 9.130 authorizes interlocutory review of specified non-final orders (e.g., orders determining venue; injunctive relief; class certification; entitlement to arbitration). Since Rule 1.530 only authorizes rehearing motions directed to final orders, motions for rehearing are not “authorized” as to non-final orders listed in Rule 9.130 and will not toll the time to file a notice of appeal. See, Princess Cruises, Inc. v. Edwards, 611 So. 2d 598 (Fla. 2d DCA 1993). The same principle applies in original proceedings involving non-final orders. Thus, for example, a party who intends to petition for certiorari as to an order compelling discovery should not move for rehearing. An untimely 9.130 appeal or petition for certiorari will be dismissed.
- Motion for rehearing directed to order on Rule 1.540 motion: Rule 9.130(a)(5) authorizes review of orders on “an authorized and timely motion for relief from judgment” and also expressly states that “[m]otions for rehearing directed to those orders will not toll time for filing a notice of appeal.” Once a trial court enters an order granting or denying relief from judgment, the only avenue for additional review is to timely file a notice of appeal in the appellate court; filing a motion for rehearing directed to such an order will not toll the time for the appeal, even if the trial court considers the motion for rehearing. Helmich v. Wells Fargo Bank, N.A., 136 So. 3d 763 (Fla. 1st DCA 2014).
Don’t think of a motion for rehearing as a way to ‘buy time’ for an appeal. The 30 day deadline is jurisdictional and an untimely or unauthorized rehearing motion will not toll that deadline.
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