Response to a Motion for Rehearing in Florida – Grounds to Deny Without More Hearings

Bernhard Law FirmYou just won a lawsuit! You have the judgment in your hands. As you’re about to celebrate with your client, you receive the opponent’s motion for rehearing. The motion for rehearing fails to cite a rule, fails to say anything new, and seems more a last way to churn the bill than a good faith argument. Now you must respond while trying to save expenses for judgment execution and appeals. Below are a few things you may want to consider and raise in the response. For more information on responses to motions for rehearing, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

Is this motion actually a motion for rehearing?

A motion for rehearing must be brought under the limited circumstances stated in Florida Rule of Civil Procedure 1.530. The purpose of a motion for rehearing is to give the Court an opportunity to consider matters that it overlooked or failed to consider. Balmoral Condominium Ass’n v. Grimaldi, 107 So. 3d 1149, 1151 (Fla. 3d DCA 2013); Francisco v. Victoria Marine Shipping, Inc., 486 So. 2d 1386, 1389 (Fla. 3d DCA 1986) (“The purpose of a motion for rehearing is to give the trial court an opportunity to consider matters which it overlooked or failed to consider”); Pingree v. Quaintance, 394 So. 2d 161, 162 (Fla. 1st DCA 1981) (citing Diamond Cab Co. of Miami v. King, 146 So. 2d 889 (Fla. 1962)).

If the motion you received has the right title but the wrong content, you may wish to raise this with the Court and opposing counsel. The solution may simply be requesting an amended motion under the right title.

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Is this motion timely? Don’t forget the old 10-day rule is now 15 days

 Under Florida Rule of Civil Procedure 1.530(b), a motion for rehearing must be served within 15 days of the order’s rendition. Fla. R. Civ. P. 1.530(b). The Court is divested of jurisdiction to entertain an untimely motion for rehearing. Galvez v. Ramos, 941 So. 2d 475, 477 (Fla. 3d DCA 2006) (holding trial court was divested of jurisdiction to entertain motion for rehearing served after deadline under Rule 1.530); Migliore v. Migliore, 717 So. 2d 1077, 1080 (Fla. 4th DCA 1998) (aff’ing denial of motion for rehearing as untimely where served past Rule 1.530 deadline, even where filed within deadline).

If the Court renders a judgment or amended judgment, the 15-day time limit triggers. If the movant fails to serve (not file) the motion within 15 days, the Court is divested of jurisdiction to consider it and must deny the motion for rehearing.

Does the motion raise anything new or overlooked?

The purpose of a motion for rehearing is to give the Court an opportunity to consider matters that it overlooked or failed to consider. Grimaldi at 1151 (Fla. 3d DCA 2013) (trial court lacked jurisdiction to entertain successive motion for rehearing or vacate summary judgment on motion for relief); Francisco, 486 So. 2d at 1389 (Fla. 3d DCA 1986) (“The purpose of a motion for rehearing is to give the trial court an opportunity to consider matters which it overlooked or failed to consider”); Pingree, 394 So. 2d at 162. Failure to provide such grounds should result in denial of the motion. Id.

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In most cases, the Court already specifically considered and addressed all of the arguments raised in a motion for rehearing. The Court usually provides opportunities to each of the attorneys to show: (i) which affirmative defense is not refuted, (ii) what necessary discovery is pending and dispositive; (iii) any direct conflicts in the documents; or (iv) genuine issues of material fact. In preparation for a judgment hearing, the Court specifically noted that it had should also have reviewed a substantial portion of the record including the claims, defenses, motions, responses, and the relevant documentation. Thus, where motion for rehearing fails to raise any matter that the Court overlooked or failed to consider, as required, the Court should deny it.

Is this a duplicate? Is this an amended motion for rehearing after a previous denial?

As the Third District Court of Appeal has held, this Court has no jurisdiction to consider an amended motion for rehearing after denial of the original motion for rehearing. Wilson, 949 So. 2d at 1152 (Fla. 3d DCA 2007) (denial of original motion for rehearing deprived trial court of authority to consider amended motion). This holds true where the movant frames its motions as an “Amended Motion for Rehearing/Interpretation/Clarification” or some other permutation thereof. Id. at 1153 (holding the trial court was correct in concluding it had no jurisdiction to consider “Amended Motion for Rehearing/Interpretation/Clarification”).

Sometimes, the motion for rehearing is a duplicate. The Court already denied the first motion for rehearing. The opposing party simply cannot accept the Court’s decision. The current motion for rehearing simply rehashes the same arguments, sometimes verbatim. Given that the Court already denied the original motion for rehearing, the Court must now deny the amended motion for lack of jurisdiction.

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Does the Court need to actually hear oral argument on the motion for rehearing?

Under well-established Florida law, the Court can deny a motion for rehearing without a hearing where it does not state on its face a legally sufficient reason to overcome lack of jurisdiction and to hold a second trial or hearing. See Harvey, 69 So. 3d at 304 (aff’ing denial of motion for rehearing/reconsideration without a hearing, as due process does not require a hearing for denial of this motion); Aubourg v. Erazo, 922 So. 2d 1106, 1108 (Fla. 4th DCA 2006) (due process not entitled movant to hearing on Rule 1.530 motion); Flemenbaum v. Flemenbaum, 636 So. 2d 579, 580 (Fla. 4th DCA 1994) (motion that attempted to re-litigate issues already covered was facially deficient, not entitled to hearing.); Carnell v. Carnell, 398 So. 2d 503, 507 (Fla. 5th DCA 1981) (“As to the motion for rehearing, we find that the Fla. R. Civ. P. do not specifically provide for a hearing.”); Alberger v. Harvison, 342 So. 2d 537, 539 (Fla. 3d DCA 1977) (aff’ing denial of Rule 1.530 motion without hearing, where no new matter was raised in motion that had not already been argued before trial judge).

Thus, where the motion for rehearing fails to state on its face a legally sufficient reason to overcome the Court’s lack of jurisdiction and to hold another hearing; and immediately denying motion for rehearing on its face would conserve judicial resources, attorney’s fees, and time; the Court should deny the motion for rehearing without further hearings and costs.

For more information on responses to motions for rehearing, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com.

Bernhard Law Firm

 

 

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