In an earlier posting, I discussed the difference between a motion for rehearing and motion for reconsideration.  

From that posting, you know that a motion for rehearing is a post-trial motion and, in particular, a motion that applies post-judgment. A properly filed motion for rehearing will toll the time to file an appeal. 

There are times where a party after a judgment is entered will file a motion for rehearing. Then, before that motion is ruled on, will file a notice of appeal. Why? The party is not appealing the order on the motion for rehearing because such an order has not been issued. Thus, the party is filing a notice of appeal of the judgment – yes, the same judgment that prompted the motion for rehearing.

Previously, the law stated that the party abandoned its post-trial motion for rehearing. “[B]y filing a notice of appeal prior to obtaining a ruling on the motion for rehearing, Appellant abandoned its motion.” Dep’t of Revenue v. Vanamburg, 174 So.3d 640, 642 (Fla. 1^st DCA 2015) (“Florida Rule of Appellate Procedure 9.020(i)(3) provided that if a motion for hearing or a motion to alter or amend, among other post-judgment motions, is filed ‘and a notice of appeal is filed before the filing of a signed, written order disposing of all such motions, all motions filed by the appealing party that are pending at the time shall be deemed abandoned, and the final order shall be deemed rendered by the filing of the notice of appeal.’”). See also Kee v. Bailey, 634 So.2d 654 (Fla. 3d DCA 1994) (“The Florida Supreme Court has clearly stated that a party abandons previously filed post-judgment motions when he files a notice of appeal of that judgment.”).

In 2015, Florida Rule of Appellate Procedure 9.020(i)(3) was amended to eliminate the abandonment of such post-judgment motions.  Now, the  Rule states that if the Notice of Appeal is filed before the trial court issues an order on the post-judgment motions, the appeal is held in abeyance:

And, what if the party filed a motion for rehearing, but then withdrew the motion for rehearing and filed a notice of appeal? In this scenario, “the rendition of the final judgment in this circumstance occurs at the time the notice of appeal is filed, not at the earlier time when the final judgment is entered.” Rice v. 1989 Ford Bronco, 609 So.2d 639, 640 (Fla. 2d DCA 1992).   In other words, when a party abandons its timely filed post-trial motion, the abandonment occurs when the notice of appeal is filed. And, thus, the time to file the notice of appeal is not initiated when the final judgment is entered, but when the post-trial motion is abandoned such as through the filing of the notice of appeal. See Rice, supra, (denying motion to dismiss appeal as untimely due to post-trial motion being abandoned by party filing notice of appeal).

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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In a big case for employers that rely on referrals for the viability of their business, the Florida Supreme Court held that referral sources may be a protected legitimate business interest under Florida Statute s. 542.335 based on the context and proof.  Hence, referral sources can be protected under a non-compete / non-solicitation agreement that prohibits the employee, upon leaving, from soliciting referrals for a period of time.   White v. Mederi Caretenders Visiting Services of Southeast Florida, LLC, 42 Fla. L. Weekly S803a (Fla. 2017) (holding that referral sources for a home health care company may be a protected legitimate business interest depending on the context and proof).

This is a big win for employers that have employees sign non-compete and non-solicitation agreements as a condition of employment to safeguard referral lists and sources.   Notably, the term “referral sources” is not specifically called out in Florida Statute s. 542.335, which is a statute that deals with valid restraints on trade (or restrictive covenants in employment agreements such as non-compete or non-solicitation-type agreements). However, the Florida Supreme Court confirmed that the specific legitimate business interests called out in the statute are non-exhaustive meaning other interests, such as referral sources, can constitute a legitimate business interest of an employer.   The context and proof is important, however, with respect to any business interest to establish it is actually a legitimate business interest that should be protected in a restrictive covenant (such as a non-compete or non-solicitation-type agreement).

In language that I find to be extremely germane, the Florida Supreme Court stated:

However, the statute ameliorates any concern regarding overly restrictive covenants. Section 542.335 commands courts to modify, or blue pencil, a non-competition agreement that is “overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest,” instructing courts to “grant only the relief reasonably necessary to protect such interest.” Thus, section 542.335’s phrasing of the business interests that may be protected in broad terms and its restricting courts from applying certain rules of contract construction, the statute grants trial courts fairly wide discretion to fashion the appropriate context-dependent remedy. 

White, supra, (internal citations omitted).

This language is germane because it reaffirms a trial court’s wide discretion to modify or blue-pencil (red-line) a non-compete or non-solicitation agreement that may be overly broad to protect only those business interests the court deems legitimate. Thus, the trial court does not have to deem the agreement unenforceable, but can modify the terms of the restrictive covenant language and fashion the appropriate remedy to protect the true, legitimate business interests of an employer.

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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Motions titled rehearing and reconsideration are routinely used interchangeably, as if there is no difference between the name “rehearing” and the name “reconsideration. There is a difference though. A motion for a rehearing is distinct from a motion for reconsideration and this distinction is key. Not understanding the difference between a motion for rehearing and motion for reconsideration can result in an untimely appeal.

Motions for rehearing apply to final judgments. They are filed pursuant to Florida Rule of Civil Procedure 1.530 because they “only apply to final judgments and ‘those orders that partake of the character of a final judgment, i.e., orders that complete the judicial labor on a portion of the cause.’” Seigler v. Bell, 148 So.3d 473, 478 (Fla. 5^th DCA 2014) quoting Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1290, n.6 (Fla. 3d DCA 1986).

Motions for reconsideration, on the other hand, apply to non-final, interlocutory orders prior to final judgment. Helmich v. Wells Fargo Bank, N.A., 136 So.3d 763, 765 (Fla. 1^st DCA 2014). These motions are based on the trial court’s “‘inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action.’” Seigler, 148 So.3d at 478 quoting Silverstrone v. Edell, 721 So.2d 1173, 1175 (Fla. 1998).

Although a motion for rehearing and motion for reconsideration are oftentimes mistitled, a court will treat a mistitled motion for reconsideration as a motion for rehearing and vice-versa. Seigler, 148 So.3d at 479. Mistitling or not understanding the distinction between the two motions can be problematic since “[a] motion for reconsideration does not toll the time to file an appeal from a non-final order.” Agere Systems, Inc. v. All American Crating, Inc., 931 So.2d 244 (Fla. 5^th DCA 2006). Conversely, a properly filed motion for rehearing will toll the time to file an appeal. Remington v. Remington, 705 So.2d 920, 922 (Fla. 4^th DCA 1997); But see E-Z Marine Supply, Inc. v. Wachovia Commercial Mortgage, Inc., 875 So.2d 279 (Fla. 4^th DCA 2004 (improperly filed motion for rehearing will not toll time to file appeal).

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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