HCBA Lawyer Magazine Vol. 28, No. 4 | Seite 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
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