New Amendment to Fla. Rule of Civil Procedure Adds Step in Trial Court to Preserve Error
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With the Florida Supreme Court's recent amendment to Florida Rule of Civil Procedure 1.530, litigants statewide now must take an extra step in the trial court to preserve for appeal challenges to defects that appear on the face of final orders and judgments.
Effective Aug. 25, the Florida Supreme Court on its own motion amended Florida Rule of Civil Procedure 1.530, which addresses motions for rehearing. The court's decision, which resolved a split among Florida's district courts of appeal on whether a motion for rehearing is required to maintain certain challenges to a final order or judgment on appeal, has serious consequences for noncompliance: state appellate courts asked to consider these issues as a basis for reversal will likely deem them abandoned in the absence of a timely filed motion for rehearing.
The new amendment targets final orders or judgments that may lack sufficient findings that a trial court is required to make under Florida law. Because errors on the face of a final order or judgment often do not become apparent until the order or judgment is entered, some district courts of appeal have held that a timely filed motion for rehearing is required to alert the trial court of the alleged error and preserve the point for appeal. This approach is rooted in judicial economy. It provides trial courts with the first opportunity to correct errors to which litigants alert them and moots the need for further appellate proceedings if the errors are remedied.
The district courts' disagreement on this issue naturally created uncertainty among litigants in Florida. For example, a litigant's preservation obligation could vary depending on the location of the lower court, creating a trap for unwary litigants that potentially carries a severe penalty: complete abandonment of the issue on appeal.
In amending Rule 1.530, the Florida Supreme Court has eliminated any guesswork by adopting a uniform policy on preservation throughout Florida that favors judicial economy. The amendment attempts to make compliance simple, adding the following new language to Rule 1.530: "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." The court's stated purpose for the amendment is to clarify that filing a motion for rehearing is required to preserve an objection to insufficient trial court findings in a final order or judgment.
The amendment applies to all final orders or judgments entered on or after Aug. 25. Litigants on the receiving end of an adverse final order or judgment that lacks the requisite findings Florida law requires will now proceed at their peril if they do not challenge that defect in a timely filed motion for rehearing. Litigants that fail to comply will likely be forever barred from raising the issue as a basis for reversal in the appellate court.
There are two important caveats to consider.
First, the amendment does not expressly override the fundamental-error exception, which permits a party to raise an issue for the first time on appeal if it constitutes fundamental error. Although parties should never solely rely on fundamental error to argue reversal, future appeals may have to confront the interplay between what the amendment requires and fundamental error.
Second, the new language in Rule 1.530 has no effect on allegedly deficient nonfinal orders that are made immediately reviewable in the appellate court by operation of rule or otherwise. Motions for rehearing that request findings will not affect the deadline to seek timely appellate review of nonfinal orders.
All aspects of the new amendment considered, attorneys litigating in Florida trial courts should now be prepared to take additional time to review a final order or judgment and identify issues that should be considered in a motion for rehearing under Rule 1.530. The rule now definitively establishes their last opportunity to raise them.
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