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This principle is well established, but not very well known. Florida’s
appellate courts have long held that a trial court may not rehear or
reconsider an order disposing of a motion for new trial. See Frazier v.
Seaboard Sys. R.R., Inc., 508 So. 2d 345, 347 (Fla. 1987); State Farm
Mut. Auto. Ins. Co. v. Miller, 688 So. 2d 935, 935 (Fla. 4th DCA 1997);
Lee v. Elliott, 155 So. 2d 169, 170 (Fla. 3d DCA 1963). The same
applies to orders disposing of motions for remittitur or additur. See
Salkay v. State Farm Mut. Auto. Ins. Co., 398 So. 2d 916, 917 (Fla. 3d
DCA 1981). And although trial courts have the inherent authority to
reconsider any interlocutory ruling before entry of final judgment,
that does not apply to orders disposing of motions for new trial because
they are not interlocutory in nature. See id.; Frazier, 508 So. 2d at 347;
Huffman, 341 So. 2d at 269.
Filing a motion to rehear or reconsider an order ruling on a motion
for new trial can easily become a procedural trap — and cost your
client the right to appeal. Because such a motion is not authorized, it
will not toll the time to appeal if an appealable judgment or order has
already been entered. See Frazier, 508 So. 2d at 347; Owens, 476 So. 2d
at 265. As a result, attorneys who are unfamiliar with this rule could
allow the 30-day deadline for filing a notice of appeal to expire, under
the mistaken belief that the period won’t begin running until the trial
court disposes of the motion for reconsideration. See Reilly v. Hyster Co.,
307 So. 2d 202, 202-03 (Fla. 4th DCA 1975). That typically happens
when the motion for reconsideration is denied.
Another kind of procedural trap arises when the unauthorized
motion for reconsideration is granted. Then the moving party, thinking
it has obtained the relief it wanted, could forego appealing from the
original judgment or order — only to have it reinstated when the
appellate court reverses the order granting the motion for
reconsideration. See Pompano Atlantis Condo. Ass’n, Inc. v. Merlino, 415
So. 2d 153, 154-55 (Fla. 4th DCA 1982); Volumes in Value, Inc. v. By
Mail Int’l, Inc., 177 So. 2d 511, 512 (Fla. 3d DCA 1965). By then, it
will be too late to appeal.
In a way, the plaintiff in Gustavsson was lucky. Because the final
judgment was not entered until after his motion for reconsideration was
denied, he was still able to appeal — and he won a partial reversal of
the denial of his original motion for additur. Other cases have not
turned out so well, so beware the procedural trap of moving for
reconsideration of an order granting or denying a
motion for new trial.
See Ari Fitzgerald, Don’t Lose Your Appeal Over
This Procedural Trap, The Hillsborough County Bar
Association Lawyer, Jan. – Feb. 2017, at 16-17.
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Author: Shea Moxon – Brannock & Humphries
MAR - APR 2018
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HCBA LAWYER
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