Supreme Court Again Amends Preservation Requirements of Rehearing Rule

The Florida Supreme Court has once again amended the language of Florida Rule of Civil Procedure 1.530 and Florida Family Law Rules of Procedure 12.530 — this time, to state that “to preserve for appeal a challenge to the failure of the trial court to make required findings of fact, a party must raise that issue in a motion for rehearing under this rule.” See In re Amendments to Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.630, No. SC2022-0756 (April 27, 2023) [.pdf] (bolding indicates new language).

This language regarding “required findings of fact” replaces language stating that the motion is required “To preserve for appeal a challenge to the sufficiency of a trial court’s findings in the final judgment.” (emphasis added). The Court explains that “This change makes both rules applicable to all orders, not just final judgments, and makes clear that the rules apply only when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court’s order.” Id. at 2.

The statement that it makes the rules “applicable to all orders” is somewhat unfortunate wording, in that it could be read to infer that a 1.530 motion is requried after every order if findings of fact are at issue. But a Rule 1.530 or 12.530 motion is still a motion directed only to jury verdicts and judgments, according to the unchanged portion of the rule. This means that if there is an interlocutory order that is missing findings of fact, even if you raise the issue in an interlocutory motion for reconsideration, that may not be sufficient to preserve the issue for appeal. Rather, the rule should be read to mean that a post-verdict or post-judgment motion for Rehearing must address insufficient findings of fact, whether those findings are found in the final judgment itself or in an interlocutlory order, in order to preserve the issue for appeal.

This unfortunate wording also opens the door for possible waiver of the right to appeal altogether. What if the order that does not have a proper finding of fact is non-final but still directly appealable pursuant to Rule 9.130? This change and the Supreme Court’s implementing “all orders” language could be read to state that you must file a motion for rehearing in order to preserve a challenge to the findings in that non-final order. Yet, a Rule 1.530/12.530 only acts to toll the time for appeal if it is “authorized and timely.” And there is a plethora of case law that states that a motion for reconsideration directed at a non-final order does not toll the time for appeal. For example, as the Fifth District has explained:

A motion for reconsideration does not toll the time to file an appeal from a non-final order. See Caufield v. Cantele, 837 So.2d 371, 376, n. 3 (Fla. 2002). The reason, of course, is that motions addressed to non-final orders are not “authorized” within the meaning of Rule 9.020(h), Florida Rules of Appellate Procedure, and thus do not postpone rendition.

Agere Sys. Inc. v. All Am. Crating, Inc., 931 So. 2d 244, 244 (Fla. 5th DCA 2006).

Given the mixed messages here, I recommend two courses of action:

(1) Make sure any post-judgment or post-verdict motion for rehearing addresses all required factual findings you may want to challenge on appeal, not just those missing from a final order or judgment.
(2) If the order you wish to appeal is an appealable non-final order — which is fairly common in post-dissolution family court cases, in particular — you should both file a motion for rehearing within 15 days of the entry of the to-be-challenged order, and file a timely notice of appeal within 30 days of entry of the order. Do not assume that the motion for rehearing will toll the time for appeal. You can then ask the appellate court to relinquish jurisdiction to the trial court to rule on the rehearing motion. This will ensure that you don’t lose jurisdiction for the appeal while awaiting the trial court’s reconsideration decision.

By focusing on the failure to make findings rather than the sufficiency of the findings, a fair reading of the change in language is that it actually narrows the rehearing requirements to situations where a court has made no findings at all. Still, with preservation at stake, until the contours of the new rule are expounded by appellate court decisions, it is best practice to bring any issues with the sufficiency of findings in a ruling to the trial court’s attention on reconsideration or rehearing. And because those motions need to be brought quickly, we recommend contacting appellate counsel as soon as you know you have an order you may want to appeal. To contact us, just call 813-778-5161 or use this form to request a consultation.

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]. [Author’s note: There have since been further amendments — check out our follow-up here]. 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.

Please note: There have been further amendments since we posted this. Be sure to check out our latest post on the amendments to Rule 1.530 and 12.530 here.

Is Memorial Day, May 27, a Court Holiday? (2019 edition)

Memorial Day–May 27, 2019–is a day that we remember and honor those that have made the ultimate sacrifice for our freedom.  You probably already suspect that it is a court holiday, too

Navy Sailors and women in dress and large hats pose with flowers on a ship.

Memorial Day in 1918, just over a century ago.

But if you’re anything like us, you want–nigh, you NEED–to see it in writing from an authoritative source and you’ll probably be checking court websites at 11 p.m. on Sunday night to be sure.  Let us help.

The short answer is YES in Florida state courts.  Here’s the authority.

In Florida state courts, Memorial Day is one of the enumerated “Legal Holidays” in Florida Rule of Judicial Procedure 2.514(a)(6)(A) (.pdf) (defining “Legal Holiday”).

Additionally, every court lists Memorial Day on their own calendars:

Florida Appellate Courts

Florida Circuit Courts

Are you in federal court? You get the day off, too.

Was this post helpful? Subscribe for more!

This post is a continuation of our “Is it a holiday” series:

https://floridaappellate.com/2019/04/18/is-good-friday-a-court-holiday-2019-edition/

https://floridaappellate.com/2014/04/18/is-good-friday-a-holiday-it-depends/

https://floridaappellate.com/2015/01/19/is-martin-luther-king-day-a-holiday-in-florida-courts/

If you want to get updates on court holidays and other appellate happenings, subscribe to this blog under the “FLORIDA APPELLATE PROCEDURE UPDATES BY EMAIL” on this page.