Have the Trial Court Rule on a Motion BEFORE the Court Loses Jurisdiction

In a recent construction posting that I posted here, it discusses when a trial court loses jurisdiction. This is a worthy consideration because in this case the trial court no longer had jurisdiction to rule on a motion after the final judgment was entered and the time for a rehearing and appeal expired. Here are the key takeaways from the case: (1) "The general rule is that an action remains pending in the trial court until after a final judgment and such time as an appeal is taken or time for an appeal expires. By the time the trial court had ruled...

05 February

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Word to the Wise: File Your Notice of Appeal TIMELY

Posted by David Adelstein

in Appeal

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....

12 August

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Inducement is NOT a Required Element in Proving the Defense of Unilateral Mistake

Posted by David Adelstein

in Appeal, Trial Perspectives

Earlier this year I wrote an article regarding proving the defense of unilateral mistake. In that article, I discussed a case where the appellate court ruled a party asserting the defense of unilateral mistake must prove that the mistake was induced by the party seeking to benefit from the mistake. Based on this opinion, a party moved for a rehearing en banc under Florida Rule of Appellate Procedure 9.331--see applicable portion of 9.331(d)(1)--arguing that in some prior opinions the appellate court required a party asserting unilateral mistake to prove inducement, and in other decisions it did not. The appellate court granted...