HCBA Lawyer Magazine Vol. 28, No. 4 | Page 16

another ProCedural traP Appellate Practice Section Chairs: Heather Fesnak - Akerman LLP & Tom Seider - Brannock & Humphries T his column has previously warned about the procedural trap of filing a motion for rehearing that is not authorized by the procedural rules that govern your case. 1 While that article focused on motions for rehearing in small claims cases, a recent decision from the Fifth District Court of Appeal addresses another type of rehearing motion that has too often become a procedural trap in civil circuit court cases: a motion for reconsideration of an order disposing of a motion for new trial. In Gustavsson v. Holder, 2018 WL 300229 (Fla. 5th DCA Jan. 5, 2018), a plaintiff filed a motion for 14 motion for additur or new reconsideration. trial, arguing Id. The court that he was explained that, awarded an absent fraud or inadequate clerical error, amount of an order granting damages. Id. or denying a at *2. After that motion for motion was new trial is denied, the not subject to plaintiff filed rehearing or a motion for modification, reconsideration, because such arguing for the an order confers first time that filing a motion to rehear a substantive the jury had right and is not rendered a or reconsider an order interlocutory compromise ruling on a motion for in nature. Id. verdict. Id. The new trial can easily (citing State v. trial court denied Burton, 314 So. that motion also, become a procedural 2d 136, 137 (Fla. and the plaintiff trap — and cost your 1975); Owens v. appealed from Jackson, 476 So. the resulting client the right to appeal. 2d 264, 264 (Fla. final judgment. 1st DCA 1985); The Fifth Huffman v. Little, DCA held that 341 So. 2d 268, the plaintiff 269 (Fla. 2d DCA 1977)). failed to preserve the compromise verdict issue because the trial court Continued on page 15 lacked jurisdiction to consider his © Can Stock Photo / alphaspirit MAR - APR 2018 | HCBA LAWYER