a rEmInDEr on rEHEarIng
Appellate Practice Section
Chairs: Tom Seider – Brannock & Humphries and Joe Eagleton – Brannock & Humphries
appellate litigants
considering these
post-opinion [motions
for rehearing] should be
M
circumspect and frank
about compliance with
otions for rehearing
and rehearing en
banc are subject to
clear but exacting
requirements under Florida’s Rules
of Appellate Procedure. Two recent
decisions from the Third and Fifth
District Courts of Appeal remind
litigants to review the rules carefully
before submitting either of these
post-opinion motions.
Rules 9.330 and 9.331, Florida
Rules of Appellate Procedure,
govern motions for rehearing and
rehearing en banc, respectively. 1
As to the former, Rule 9.330(a)
requires a movant to “state with
particularity the points of law or
fact that, in the opinion of the
movant, the court has overlooked
or misapprehended.” Although the
rule was amended in 2000 to remove
an express prohibition on re-arguing
the merits, the Committee Notes
confirm that the purpose of the
the applicable rules.
motion remains the same. A proper
motion directs the court to over-
looked points of law or fact; it does
not express “mere disagreement”
with the outcome of the appeal.
Although a motion for rehearing
may occasionally be appropriate
after issuance of a per curiam
affirmance without an opinion,
those rare circumstances usually
exist only where an intervening
change in the law has occurred. 2
Motions for rehearing en banc are
subject to even greater constraints.
Rule 9.331(d) delineates the only
two permissible grounds for such
a motion: “that the case or issue is
of exceptional importance or that
such consideration is necessary to
maintain uniformity in the court’s
decisions.” Counsel must include a
statement designating one or both
of these grounds and, in case of
the latter, identify the potentially
conflicting decisions.
In a pair of recent decisions,
two District Courts of Appeal
disapproved of motions that
deviated from these rules. In
Jedak Corporation v. Seabreeze Office
Associates, LLC, the Fifth District
Court of Appeal addressed an
emergency motion for rehearing
and rehearing en banc. 3 The court
disapproved of the motion for
rehearing as “consist[ing] primarily
of prohibited re-argument.” As to
the motion for rehearing en banc,
the court issued a show cause order
indicating that sanctions would
be appropriate under the court’s
inherent authority and section
Continued on page 23
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22
JAN - FEB 2019
|
HCBA LAWYER