July 3, 2024
Reconsideration, Rehearing, and Rule 1.540

Attorneys are often confused about whether to ask for “rehearing” or “reconsideration” of an unfavorable order, so they end up filing a “Motion for Rehearing and/or Reconsideration,” hoping to cover all bases. Another source of confusion is when to use Rule 1.530 versus Rule 1.540, Florida Rules of Civil Procedure, to seek relief from a judgment (or its equivalent). This article will help to clarify those distinctions and avoid some pitfalls.

It can sometimes be difficult to tell the difference between a non-final order, such as a detailed order that grants a motion for summary judgment but does not actually enter the judgment, as opposed to the actual summary final judgment, which is a final order. Technically, the former is just an interlocutory order, and the court retains inherent authority to reconsider any of its interlocutory orders, until such time as a judgment (or other similarly dispositive order) is entered. Helmich v. Wells Fargo Bank, N.A., 136 So. 3d 763, 765-66 (Fla. 1st DCA 2014). Once a judgment or its equivalent is entered, the court has far more limited jurisdiction and may only entertain a timely motion for rehearing under Rule 1.530, Florida Rules of Civil Procedure, to revisit its order. Id.

If you file a motion for rehearing after the entry of the related interlocutory order but before the entry of the final/dispositive order or judgment, there is some precedent for the court to consider the motion for rehearing as a premature filing directed at the final order, but there is also harsh (and more recent) precedent for treating the premature motion for rehearing as a nullity, which may cause you to miss the deadline to move for rehearing and potentially your 30-day deadline to appeal, because the appeal deadline is driven by the entry of the final order or the denial of a timely motion for rehearing. Compare Bass v. Jones, 511 So. 2d 441 (Fla. 1st DCA 1987) (citing precedent from Florida’s 4th DCA) with Hickox v. Taylor, 933 So. 2d 675 (Fla. 1st DCA 2006). If you find yourself in that situation, having moved for rehearing under Rule 1.530 on something like an order granting a summary judgment motion, you should file an amended motion for rehearing soon after the actual judgment is entered.

Importantly, a timely-filed motion for rehearing suspends the enforcement of a final judgment (including the ability to have a foreclosure sale or serve a writ of garnishment) until the court disposes of that motion. Rohret v. Anthony Zucco, N.A., 334 So. 3d 686, 687 (Fla. 2d DCA 2022). If the court denies the motion for rehearing, reconsideration of that denial is likely not possible, and your best recourse at that point is likely an appeal. Helmich, 136 So. 3d at 766.

Once you are outside the short rehearing period under Rule 1.530, Florida Rules of Civil Procedure, Rule 1.540 provides a much longer period to seek relief, but on much more limited grounds enumerated in the rule. “Litigants intermingle the provisions of these rules at their risk.” Balmoral Condo. Ass’n v. Grimaldi, 107 So. 3d 1149, 1151 (Fla. 3d DCA 2013). The grounds for rehearing under Rule 1.530 are very broad, including that the “final order conflicts with the governing law and is otherwise simply wrong on the merits,” whereas to vacate a final order under Rule 1.540 you will have to fit the argument within one of the several narrow, enumerated grounds for relief. Id.

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Published: July 3, 2024
Author: Bo Boatman
Categories : Uncategorized