Rule Change: Rehearing Required to Preserve Challenge to Sufficiency of Trial Court Findings

Seal of the Florida Supreme CourtThe Florida Supreme Court Friday amended Florida Rule of Civil Procedure 1.530 and Florida Family Law Rules of Civil Procedure 12.530 to expressly require that “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule,” effective immediately upon the issuance of the order on August 25, 2022. See In Re: Amendments to Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530 (Aug. 25, 2022) [official court link]. While this is a change to the civil rules, it has a direct and real effect on whether a successful appeal is possible, so it is important for anyone who is considering an appeal to think carefully and act quickly to ensure this appellate issue is preserved by filing a motion for rehearing pursuant to Rule 1.530 or 12.530 within 15 days of rendition of a final judgment. And this means that if you have any interest in appeal, it is urgent that you speak with an appellate lawyer well before that 15 day deadline to ensure that you don’t inadvertently waive the issue on appeal.

The Supreme Court was no doubt intending to resolve a split among the District Courts of Appeal regarding whether a motion for rehearing is required in such circumstances. In 2019, the Second District Court of Appeal in Engle v. Engle, 277 So.3d 697 (Fla. 2d DCA 2019) [official court link] held that such a motion for rehearing was not required to preserve an appellate challenge to the adequacy of statutorily required findings of fact, and thus the failure to comply with a statute’s requirement of factual findings “is reversible error regardless of whether a motion for rehearing is filed.” Id. at 699, citing Fox v. Fox, 262 So. 3d 789 (Fla. 4th DCA 2018) (en banc) [official court link]. In Engle, which was a family law case and thus applied Rule 12.530, the court stated that while it would be preferable to allow the trial court the option to fix its mistake prior to appeal, “if a litigant fails to do so for whatever reason, he or she should not be foreclosed from having the error corrected.” The Second District explained that, especially in family law proceedings, “to impose such a procedural constraint on a family law litigant elevates judicial convenience over equity.” Id. at 703. The court described the rehearing motion requirement as a “judicially created…trap” for family law litigants, partiuclarly those acting pro se, and instead placed the burden squarely on trial courts to follow the law in the first instance or be subjected to reversal.

Indeed, both the Second in Engle and the Fourth District in Fox urged the Famly Law Rules Committee to review and address this issue to make this clearer.

The Florida Supreme Court’s amendment is made “on its own motion” and does not come directly from a Family Law Rules Committee proposal. The Court will be accepting comments on the rule through November 8, 2022. So be on the lookout for a potential further change to the process. But for now, make sure you are on top of these important preservation issues.

Here’s the Full Text of the Changes, with additions indicated by underlining:
RULE 1.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS
(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues.
To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.

On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.
(b) – (g) [NO CHANGE]
Committee Notes
[NO CHANGE]
Court Commentary
1984 Amendment. [NO CHANGE]
2022 Amendments.
The amendment to subdivision (a) does not address or affect, by negative implication, any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review

FLORIDA FAMILY LAW RULES OF PROCEDURE
RULE 12.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS

(a) Jury and Non-Jury Actions. A new trial or rehearing may be granted to all or any of the parties and on all or a part of the issues.
To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment, a party must raise that issue in a motion for rehearing under this rule.

On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.
(b) – (h) [NO CHANGE]

Court Commentary
2022 Amendments.
The amendment to subdivision (a) does not address or affect, by negative implication, any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review.

What Do I Do if the Other Side Files a Writ of Certiorari, Prohibition, or Mandamus in Florida Cases?

Writs of Certiorari, Writs of Mandamus, and Writs of Prohibition are three different ways a party in Florida state court litigation can seek appellate court intervention even though the judge has not made a final decision. If the other side seeks one of these writs from the appellate court, what do you need to do to protect yourself?

No Response Required — at First

The party who files a petition for a writ is referred to in the appellate court as the Petitioner, and the party who won the trial court victory is referred to in the appellate court is called the Respondent. But in most cases, a Respondent is neither required nor allowed to respond to the Petition. A response is only allowed if ordered by the appellate court. The appellate court will first review the petition and decide whether it needs or wants a response. Florida Rule of Appellate Procedure Rule 9.100(h) states that if the Court believes the petition “demonstrates a preliminary basis for relief,” the Court will issue an “order to show cause” asking the Respondent to explain why relief should not be granted. The Court could also instead direct the Respondent to file a response. Either order will state a deadline for the Respondent to respond.

Do I Need Appellate Counsel?

It is a good idea to consult with appellate counsel if the other side files a writ. Appellate counsel can help in several ways. First, appellate counsel can provide an initial assessment of how likely the appellate court is to request a response. Second, appellate counsel can be at the ready in case the appellate court does order a response. The Court will set a deadline, and depending on how urgent the issues in the petition are, the deadline might be quite fast. Bringing appellate counsel on board as soon as the writ is filed can help ensure that you are ready to respond quickly if ordered. Third, if a response is ordered, appellate counsel is generally much more familiar with the procedural and jurisdictional quirks of these rare writs, and will often be in a better position to show the appellate court why the writ should not be granted based on appellate counsel’s wider experience in appellate standards of review. And finally, separate appellate counsel can allow your trial counsel to stay focused on the main litigation, which is most likely moving forward even though the writ is pending.

If you are on the receiving end of an extraordinary writ — whether it is a writ of certiorari, a writ of mandamus, or a writ of prohibition, consider engaging appellate counsel for a substantive consultation and/or to appear on your behalf in the appellate court. If we can help, feel free to contact us at 813-778-5161 or fill out our intake form here to initiate scheduling a consultation.

What is a Writ of Certiorari in Florida State Courts?

The term writ of certiorari is used in many different contexts, depending on the courts involved. The Latin word certiorari (often abbreviated as “Cert.”) means “to be made certain,” and in Old English courts such writs actually began with the Latin words “Certiorari volumus…” (“We wish to be made certain…”). In Florida state courts, the writ of certiorari most often refers to a proceeding in which a party asks an intermediate appellate court, here known as a District Court of Appeal, to review a decision of a trial court. But importantly, it can’t be just any trial court decision, because otherwise litigants would file a writ every time they disagreed with the trial court. For the District Court of Appeal to have jurisdiction to hear a Writ of Certiorari, the order must be otherwise unappealable, and the party seeking certiorari relief must demonstrate that harm caused by the order is irreparable and cannot be remedied on plenary appeal, and that the ruling was “a departure from the essential requirements of law.” Let’s drill down on what each of these requirements mean.

Not an Otherwise Appealable Nonfinal Order

There are some kinds of nonfinal orders that Florida has decided are automatically appealable — essentially, Florida has made a policy decision that certain kinds of cases do not need to make the showing that is normally required by certioari, because there is clearly a lack of remedy by the time the case is over. Before you consider filing a writ of certiorari, be sure to check out the list of directly appealable nonfinal orders found in Rule 9.140. But if the order you want reviewed is not on the list of appealable non final orders, you should determine if a writ of certiorari is available to you.

Harm Not Remedied by Plenary Appeal

Assuming the ruling is not covered by Rule 9.140, the threshold issue the appellate court will consider is whether the harm caused by the order is of a character that it needs to be resolved now, rather than at the end of the case. The term “plenary appeal” refers to an appeal of a final order, which comes at the end of the case. Most rulings, no matter how wrong, can be fixed at the end of the case, or more importantly, don’t need to be fixed — usually because it did not affect the ultimate outcome of the case. This prong of the test is also sometimes referred to as “irreparable harm.” And not all types of harm are considered irreparable. For example, a ruling costing a party a lot of money is not sufficient to cause irreparable harm. W. Florida Reg’l Med. Ctr., Inc. v. See, 18 So. 3d 676, 682 (Fla. 1st DCA 2009), approved, 79 So. 3d 1 (Fla. 2012). Even disclosure of information in which the party has a “valid privacy interest in avoiding unnecessary disclosure of matters of a personal nature” does not generally meet this standard. Id.

What does constitute irreparable harm? The most common example is described as “’cat out of the bag’ material that could be used to injure another person or party outside the context of the litigation, and material protected by privilege, trade secrets, work product, or involving a confidential informant may cause such injury if disclosed.” Allstate Ins. Co. v. Langston, 655 So. 2d 91, 94 (Fla. 1995). A litigant must carefully consider, by reviewing existing cases, whether the harm of the order would be considered irreparable by the appellate court.

Departure From the Essential Requirements of Law

Once you prove the harm is irreparable, you still cannot get relief on a writ of certiorari unless you also demonstrate to the court that the trial court’s ruling is a “departure from the essential requirements of law.’ This phrase means, for example, that the law is very clear, and the violation of that clearly established principle of law results in a miscarriage of justice. It has to be more than just the appellate judges simply disagreed with the circuit court’s determination and interpretation of the applicable law. See Custer Med. Ctr. v. United Auto. Ins. Co., 62 So. 3d 1086, 1094 (Fla. 2010).

Successful Writs of Certioari Are and Should Be Rare

The Florida Supreme Court does not want litigants to run to the appellate courts for every little disagreement with the trial judge. That is why it says that “common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So. 3d 344, 349 (Fla. 2012) (citation omitted).

There Are Other Writ of Certiorari Standards In Florida

This post talks about the most common type of writ of certiorari, but there may be other times the term writ of certiorari is used in Florida Courts to apply to different situations. Those other situations also have different standards of review. If you have a question about whether you should file a writ of certiorari, or if the other side of your litigation has filed a writ of certiorari and you need help, feel free to contact us at 813-778-5161 or fill out our intake form here to initiate scheduling a consultation.