The Fourth DCA recently issued an opinion on rehearing in which it reiterated a pretty basic, but nonetheless important point: If you didn’t raise an issue in your initial brief, you can’t raise it for the first time on a motion for rehearing before the appellate court. See Philip Morris USA, Inc. v. Naugle, No. 4D10-1607 (Dec. 12, 2012) [.pdf]. The lesson, of course, is that if it is important enough to argue it all, an issue must go in your initial brief. Remember, Rule 9.330 requires that a party seeking rehearing point out “with particularity the points that…the court has overlooked or misapprehended in its decision.” The court cannot misapprehend or overlook that which a party never argued to begin with!
The First District Court of Appeal recently explained the different standards for rehearing at the appellate level versus the trial level under the Florida rules, and it’s an important distinction for both trial and appellate practitioners to keep in mind. The take home lesson: Your last chance at issue preservation is a motion for rehearing, particularly for cases decided at early stages.
The case is Fitchner v. Lifesouth Community Blood Centers, Inc., ___ So.3d ___, No. 1D10–2019 (Fla. 1st DCA April 13, 2012) [.pdf]. Against the background of a complicated procedural history, the Court sets out a terrific discussion of the rehearing standards. The Fitchners sought to amend their complaint after an appellate remand dismissing their complaint, and the trial court denied their motion. With new counsel, they moved the trial court for rehearing, making a new and (as the trial court admitted) “meritorious” argument as to why the amended complaint should be allowed. The trial court nonetheless denied the motion because the argument was being raised for the first time, and had not been “overlooked” or “misapprehended.”
The First DCA ruled the Fitchners had not waived their argument. The Court started its analysis, as we all should, with the text of the rules, in this case a comparison of the text of the appellate rehearing rule, Rule 9.330(a), with the trial-level rule, Rule 1.530(a). The Appellate Rule requires that the movant:
“state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding .”
The Civil Procedure rule, by contrast, states:
“[o]n a motion for 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.”
Reading these rules side-by-side, the Court concluded:
“It is clear from a comparison of the text of these two rules that the standard to be applied in trial courts is much broader than the one that applies on appeal. Rule 1.530 is not limited to a mistake the court has made. To the contrary, rehearing may be granted in an appropriate case to prevent an injustice that would be caused by an error or omission by one of the lawyers.”
Trial practitioners should beware, however: Just because the trial court has the power to consider a newly raised issue on a motion for rehearing made pursuant to Rule 1.530, does not mean it is required to do so. It is still best to raise every issue in your original motion. But the trial court did have the power to consider the new argument raised, and as a result the new issue was preserved for appellate review. The Court went on to reverse the dismissal based upon the legal argument raised and rejected in the Fitchners’ motion for rehearing.
As an aside, the decision also contains helpful analysis of the law of the case doctrine. More on law of the case in a future post.
Some state court litigators scoff at the need for paying for a court reporter’s presence at trial. But the importance of having an adequate record on appeal cannot be over-emphasized. In some instances, the absence of a record has caused the courts to dismiss an appeal entirely. But the Fifth DCA recently went one step further and ordered a new trial, even though a technological malfunction, not party failure to preserve the record, was to blame for the lack of a transcript.
Practice Lesson: If there is any chance of appealable error — and isn’t there always? — ensure you get a transcript!