A motion for rehearing can be a useful tool to allow the trial court to correct potential error without appellate court proceedings. However, a party filing a motion for rehearing with an eye toward a potential appeal must be careful to adhere to applicable deadlines. Failure to comply with the deadlines could result in dismissal of an appeal. A brief explanation of the procedure for a motion for rehearing and initiating an appeal from a final order in a civil case follows. The reader is urged to always consult the applicable Florida procedural rules to discern the timeframes applicable to a particular case.
Most attorneys know that a party generally has thirty days to file a notice of appeal of a final order in a civil case. Fla. R. App. P. 9.110(b). But what if a party files a motion for rehearing directed at the order the party may wish to appeal? Florida Rule of Civil Procedure 1.530(b) provides that the party must serve the motion for rehearing within ten days of the filing of the order at which it is directed. Attorneys should note that this ten-day time period really means ten days (they cannot add an additional five days for mailing). The failure to comply with this deadline for timely service of a motion for rehearing sets a deadly trap for a future appeal.
The reason involves Florida Rule of Appellate Procedure 9.020(h), which states that certain motions, including motions for rehearing, suspend rendition of the final order at which they are directed until the trial court disposes of the rehearing motion by filing a signed written order. In other words, the date of rendition of the order disposing of a party’s motion for rehearing becomes the effective rendition date of the order at which the party directed its motion for rehearing. The practical point to take away is that the thirty-day timeframe to file the notice of appeal will run from the date of rendition of the order on the rehearing motion. Additionally, attorneys should note that a motion for rehearing only suspends rendition of final orders, not appealable non-final orders.
The fatal pitfall is present when a party fails to serve its motion for rehearing within ten days. A timely motion for rehearing suspends rendition of a final order, but Florida’s appellate courts hold that an untimely motion for rehearing does not suspend rendition. Boehm v. Thomas, 963 So. 2d 984 (Fla. 4th DCA 2007); Martini v. Young, 921 So. 2d 647 (Fla. 5th DCA 2005). The result is that a party that files an untimely motion for rehearing, and allows the thirty day deadline to file a notice of appeal to expire while it waits for a ruling, will forever lose the right to appeal. Id. It is crucial to note here that the time period for filing the notice of appeal to initiate review is jurisdictional in most cases and cannot be cured by a showing of excusable neglect. A party with doubts over whether it timely served its motion for rehearing will therefore be wise to abandon its motion for rehearing and file the notice of appeal prior to expiration of the thirty day deadline in an abundance of caution to protect the right to appeal.
A party that receives an order denying its motion for rehearing can then initiate an appeal by filing the notice of appeal thirty days from the date of rendition of that order. As with any order, attorneys should remember that rendition occurs “when a signed, written order is filed with the clerk of the lower tribunal.” Fla.R.App.P. 9.020(h). The date on which the signed order is filed with the clerk is the relevant date for determining rendition rather than the date the judge signed the order, in the fairly common situation that these two dates differ slightly. Attorneys should avoid reliance on the filing date as shown on the trial court’s online docket, and instead should obtain a copy of the rendered order to verify the render date reflected on the clerk’s date-stamp.
A party that has properly initiated the appeal is on its way and can now focus on ensuring a proper record on appeal exists (including transcripts) and calendaring briefing deadlines.