Word to the Wise: File Your Notice of Appeal TIMELY

Here is a recent case that is really more about a word to the wise. “[A] motion for rehearing directed to a non-final order…is not authorized under the rules and does not toll the time for filing the notice of appeal.” Omni Healthcare, Inc. v. North Brevard County Hospital District, 48 Fla. L. Weekly D257b (Fla. 5th DCA 2023). This means filing a motion for rehearing based on a non-final order does NOT toll the time for you the timely preserve your appellate rights by filing a notice of appeal. This case involved a commercial eviction dispute where the commercial tenant...

05 November

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Writ of Prohibition to Prevent Trial Court from Exceeding Jurisdiction

Posted by David Adelstein

in Appeal

A writ of “[p]rohibition lies to prevent a court from acting in excess of its jurisdiction.” Allstate Fire and Casualty Ins. Co. v. Hoffman, 2022 WL 14681489, *1 (Fla. 4th DCA 2022). An example of an appellate court granting a writ of prohibition can be found in Allstate Fire and Casualty Insurance Company. As an important backdrop, Florida Rule of Civil Procedure 1.530 governs motions for rehearing. A motion for rehearing “must be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action.” Fla.R.Civ.P....

23 September

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Abandonment of Post-Trial Motions through Notice of Appeal? Not Anymore…

Posted by David Adelstein

in Appeal

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...

03 September

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Motion for Rehearing or Reconsideration: What is the Difference?

Posted by David Adelstein

in Appeal

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,...

11 February

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Timely Filing Motion for Attorney’s Fees and Costs

Posted by David Adelstein

in Trial Perspectives

Florida Rule of Civil Procedure 1.525 provides: Any party seeking a judgment taxing costs, 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...

13 August

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

Posted by David Adelstein

in Appeal

There are times when appeals lose. In these situations, people often find themselves lost and unsure what to do next. Do they file an appellate motion for rehearing? Florida Rule of Appellate Procedure 9.330(a) states in pertinent part: "A motion for rehearing...