motion for rehearing

Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein on February 11, 2017
Trial Perspectives / Comments Off on Timely Filing Motion for Attorney’s Fees and Costs

Florida Rule of Civil Procedure 1.525 provides:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion no later than 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal, which judgment or notice concludes the action as to that party.

This is a specific statutory time period and a motion for rehearing does NOT toll this 30 day period. Jackson v. Anthony, 39 So.3d 1285, 1286 (Fla. 1st DCA 2010). This means that a motion for a final judgment taxing attorney’s fees and costs must be made within 30 days after the filing of a judgment or voluntary dismissal that concludes the action as to that party. (A court in certain circumstances may grant an extension of time to this 30 day period if the motion for extension is filed within 30 days).   Not timely filing a motion for attorney’s fees and costs can result in…(you guessed it)…a loss of a party’s right to recover attorney’s fees and costs.

In Hovercraft of South Florida, LLC v. Reynolds, 42 Fla. L Weekly D367a (Fla. 5th DCA 2017), the plaintiffs prevailed and received a final judgment. The defendant moved for a new trial and/or rehearing which was denied.   Within 30 days of the denial of the defendant’s motion for rehearing, but well outside the 30 days from when the final judgment was entered, the plaintiffs moved for attorney’s fees and costs. However, the motion for attorney’s fees was not timely filed within 30 days of the filing of the final judgment meaning…(you guessed it again)…the plaintiff’s lost the right to recover their attorney’s fees and costs!!!  Do not let this happen to you.  

Notably, an exception to this 30 day requirement is if the final judgment itself determines entitlement to attorney’s fees reserving only the right to determine the quantum of the reasonable attorney’s fees.   Hovercraft of South Florida, supra (“In order to avoid the thirty-day requirement, the judgment itself must determine entitlement to attorney’s fees and costs and reserve jurisdiction only as to the amount owed.”) Notwithstanding this exception, file the motion for attorney’s fees and costs within 30 days — no excuses.

 

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

 

 

 

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I Lost the Appeal. Should I File an Appellate Motion for Rehearing???

Posted by David Adelstein on August 13, 2015
Appeal / Comments Off on I Lost the Appeal. Should I File an Appellate Motion for Rehearing???

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Oh no. I have lost the appeal. Now what? Do I file an appellate motion for rehearing?

Florida Rule of Appellate Procedure 9.330(a) states in pertinent part:

“A motion for rehearing…a written opinion may be filed within 15 days of an order or within such other time set by the court. A motion for rehearing shall 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.…A response may be served within 10 days of service of the motion.”

Unfortunately, there is the strong sentiment, however, that motions for rehearing are misused. These motions are NOT grounds for raising arguments for the first time. See Cleveland v. State, 887 So.2d 362, 364 (Fla. 5th DCA 2004). They are NOT grounds for rearguing the merits of the appeal. See Seslow v. Seslow, 625 So.2d 1248 (Fla. 4th DCA 1993). And, they are NOT to be used for expressing displeasure with the written opinion. See Ayala v. Gonzalaez, 984 So.2d 523, 526 (Fla. 5th DCA 2008).

Then what are motions for rehearing really for? As set forth in the above rule, these motions are for raising “points of law or fact that…the court has overlooked or misapprehended.”

“Motions for rehearing are strictly limited to calling our attention-without argument-to something we have obviously overlooked or misapprehended. The motion for rehearing is not a vehicle for counsel or the party to continue its attempts at advocacy. It should be demonstrative only-i.e. merely point to the overlooked or misunderstood fact or circumstance. If we want additional argument, we know how to say so.”

Goter v. Brown, 682 So.2d 1255, 1256 (Fla. 4th DCA 1996).

What if the court does not issue a written opinion and instead issues a per curiam affirmance (known as a PCA) without opinion? In other words, how could the court overlook something if it doesn’t issue a written opinion? Generally, it cannot. In this instance, motions for rehearing “are [very] rare and are most often limited to occasions when a relevant decision of the Supreme Court or another District Court of Appeal is rendered after briefing and oral argument and not considered by the court.”

Now, even more rare is a motion for rehearing en banc pursuant to Florida Rule of Appellate Procedure 9.331. “A party may move for an en banc rehearing [of all the district court of appeal’s judges in regular active service] solely on the grounds that the case or issue is of exceptional importance or that such consideration is necessary to maintain uniformity in the court’s decisions.”  Fla.R.App.P. 9.331(d)(1).  

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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