Disclaimer

The information on this website is presented as a service for our clients and Internet users and is not intended to be legal advice, nor should you consider it as such. Although we welcome your inquiries, please keep in mind that merely contacting us will not establish an attorney-client relationship between us. Consequently, you should not convey any confidential information to us until a formal attorney-client relationship has been established. Please remember that electronic correspondence on the internet is not secure and that you should not include sensitive or confidential information in messages. With that in mind, we look forward to hearing from you.

 Skip to Content

Motions For Rehearing: An Often Overlooked Preservation Requirement
December 23, 2023

Judges and jurists alike champion the notion that rehearings should be used sparingly and only when the conditions are just right. A lesser known concept is that sometimes a motion for rehearing is absolutely necessary to preserve a winning issue for appeal. 

Occasionally, a jurisdiction’s rules will expressly require a motion for rehearing in order to preserve an issue for appellate review. For example, a Florida rule of civil procedure directs that, if the trial court fails to provide its reasoning on the record, a party cannot raise that failure on appeal unless the party first raises that issue in a motion for rehearing in the trial court.[1]

That particular preservation requirement falls into a more general and far-reaching requirement that often does not appear in a written set of civil or appellate rules. Depending on the jurisdiction, any error that appears for the first time on the face of the final order or judgment must first be brought to the trial court’s attention in a motion for rehearing, or the issue is waived. If the issue is not properly preserved, the party may be left having to climb the steep hill of arguing that the error is fundamental.

Unfortunately, it is not always clear when an issue can be considered to have appeared “for the first time” on the face of a final order. Moreover, case law addressing this issue is often sparse. As a result, the safest route generally is to move for rehearing even if it is only arguable that the error appeared for the first time in the final order.

[1] Fla. R. Civ. P. 1.530(a).
Authored By
Image: Dean A. Morande
Dean A. Morande
Related Practices
Appellate & Trial Support
©2024 Carlton Fields, P.A. Carlton Fields practices law in California through Carlton Fields, LLP. Carlton Fields publications should not be construed as legal advice on any specific facts or circumstances. The contents are intended for general information and educational purposes only, and should not be relied on as if it were advice about a particular fact situation. The distribution of this publication is not intended to create, and receipt of it does not constitute, an attorney-client relationship with Carlton Fields. This publication may not be quoted or referred to in any other publication or proceeding without the prior written consent of the firm, to be given or withheld at our discretion. To request reprint permission for any of our publications, please use our Contact Us form via the link below. The views set forth herein are the personal views of the author and do not necessarily reflect those of the firm. This site may contain hypertext links to information created and maintained by other entities. Carlton Fields does not control or guarantee the accuracy or completeness of this outside information, nor is the inclusion of a link to be intended as an endorsement of those outside sites.