Preservation of error: To rehear or not to rehear, that is the question

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Preservation of error: To rehear or not to rehear, that is the question

8/28/25

There is some confusion about when a motion for rehearing is required to preserve an issue for appeal under Florida Rule of Civil Procedure 1.530. The rule requires a motion when a trial court fails to make “required finding of fact in the final judgment.” Fla. R. Civ. P. 1.530(a).

Despite this seemingly clear statement, some attorneys believe a motion is required anytime a court makes a perceived error in the final judgment. But that is not the case. “[T]he rules apply only when a judge is required to make specific findings of fact and not when a party seeks to make other challenges to a trial court’s order. In re Amends. to Fla. Rule of Civil Proc. 1.530 & Fla. Family Law Rule of Proc. 12.530, 373 So. 3d 1115, 1115 (Fla. 2023).

The court’s commentary, however, provides that the rule “does not address or affect, by negative implication, any other instance in which a motion for rehearing is or might be necessary to preserve an issue for appellate review.” So to the extent caselaw requires a motion for rehearing, one must be filed. For example, if an error appears for the first time on the face of the final judgment, a motion for rehearing is required to preserve the issue for appeal. Williams v. Williams, 152 So. 3d 702, 704 (Fla. 1st DCA 2014).

A motion for rehearing must be filed in the trial court not later than 15 days after a verdict is returned or the date the final judgment is rendered. Fla. R. Civ. P. 1.530(b). The rule does not apply to non-final orders. A trial court does, however, have the inherent authority to reconsider (not to be confused with rehearing) interlocutory orders. Iriarte v. Citizens Prop. Ins. Corp., 307 So. 3d 63, 66 (Fla. 4th DCA 2020). As with final orders, a notice of appeal from a non-final order must be filed “within 30 days of rendition of the order to be reviewed.” Fla. R. App. P. 9.130(b); 9.110(b) (final judgments).

An example of a statute that requires specific factual findings is Florida Statute section 61.08 (alimony). And Florida Rule of Civil Procedure 1.510(a) requires a trial court to “state on the record the reasons for granting or denying” summary judgment. A party’s failure to raise the trial court’s lack of required findings in a motion for rehearing precludes appellate review. Hardison v. Bank of New York Mellon, 399 So. 3d 1173, 1174 (Fla. 3d DCA 2024). If, however, the trial court makes the required findings on the record, and if a transcript of the hearing is included in the record on appeal, a motion for rehearing is not required. See id.

A motion for rehearing is not required to challenge whether a final judgment is unsupported by competent, substantial evidence. Ospina-Shone v. Shone, 399 So. 3d 1143, 1145 n.1 (Fla. 3d DCA 2024) (citing Aguilera v. Agustin, 374 So. 3d 4, 4 (Fla. 4th DCA 2023)); see also Fla. R. Civ. P. 1.530(e) (noting a motion is not required to challenge the sufficiency of the evidence in non-jury cases).

Trial courts may consider new arguments raised for the first time in a motion for rehearing. Melrose Ventures, LLC v. Uptempo Mktg. Corp., No. 6D2023-3824, 2025 WL 2088722, at *1 (Fla. 6th DCA July 25, 2025). In the Second, Third, Fourth and Sixth DCAs, “new and different arguments untimely raised for the first time in motions for rehearing which were denied are unpreserved.” Id. at *2 (collecting cases) (certifying conflict).

The First DCA appears to agree. See Pisano v. Mayo Clinic Fla., 47 Fla. L. Weekly D304 (Fla. 1st DCA Jan. 27, 2022) (explaining that the issue would have been preserved if the trial court considered the motion for rehearing and noting that the abandonment of a motion forecloses appellate review). New arguments raised in a motion for rehearing, which is denied by the trial court, are considered preserved in the Fifth DCA. Kawsar v. Alhamdi Grp., LLC, 369 So. 3d 1227, 1228 (Fla. 5th DCA 2023) (citing Elser v. Law Offs. of James M. Russ, P.A., 679 So. 2d 309, 312 (Fla. 5th DCA 1996)).

Moving for rehearing from a non-final order is “unauthorized” and will not toll the time to file a notice of appeal. Send Enterprises, LLC v. Set Drive, LLC, 390 So. 3d 48, 50 (Fla. 3d DCA 2023). Successive motions are also unauthorized. Poky Mgmt., LLC. v. Solutrean Inv. Group, LLC., 390 So. 3d 753, 756 (Fla. 5th DCA 2024).

Some interlocutory orders must include findings of fact. For example, a trial court must make specific factual findings on whether testimony is “scientifically reliable and factually relevant.” Goodman v. Ningbo Litesun Elec. Co., Ltd., 398 So. 3d 1020, 1022 (Fla. 4th DCA 2025). “[I]f an interlocutory order fails to make required findings and the party has not moved the court to reconsider the interlocutory order to make such findings, the party must move for rehearing from the final judgment on that basis to preserve the issue for appellate review.” Id.

Rule 1.530 was amended in 2022 and again in 2023, and there may still be some gray areas. Counsel should be mindful of the procedural posture of their case and double-check whether factual findings are required by statute, rule or caselaw.

For information on how we can assist you with appeals and complex motions, please contact Robert Scavone Jr. at robert.scavone@fmglaw.com.

Information conveyed herein should not be construed as legal advice or represent any specific or binding policy or procedure of any organization. Information provided is for educational purposes only. These materials are written in a general format and not intended to be advice applicable to any specific circumstance. Legal opinions may vary when based on subtle factual distinctions. All rights reserved. No part of this presentation may be reproduced, published or posted without the written permission of Freeman Mathis & Gary, LLP.

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