When is a Motion for Rehearing Required in Probate Matters?

It happens to every litigator, you lose a matter.  You and your client want to appeal the loss.  Should you file a motion for rehearing, to ask the judge to change his mind?  And how often does that really happen?  Do you ever have to file a motion for rehearing?

What is a Motion for Rehearing Under the Florida Rules of Civil Procedure?

A motion for rehearing under Florida Rule of Civil Procedure 1.530 is a request from a losing litigant to ask the Court to essentially change its mind, based on an assertion of factual or legal error, as follows:

RULE 1.530. MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS; REMITTITUR OR ADDITUR

(a) Jury and Non-Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. To preserve for appeal a challenge to the failure of the trial court to make required findings of fact in the final judgment, a party must raise that issue in a motion for rehearing under this rule. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.

(b) Time for Motion. A motion for new trial or for rehearing must be served not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action. A timely motion may be amended to state new grounds in the discretion of the court at any time before the motion is determined.

(c) Time for Serving Affidavits. When a motion for a new trial is based on affidavits, the affidavits must be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.

(d) On Initiative of Court. Not later than 15 days after the date of filing of the judgment or within the time of ruling on a timely motion for a rehearing or a new trial made by a party, the court of its own initiative may order a rehearing or a new trial for any reason for which it might have granted a rehearing or a new trial on motion of a party.

(e) When Motion Is Unnecessary; Non-Jury Action. In a non-jury action, the sufficiency of the evidence to support the judgment may be raised on appeal whether or not the party raising the question has made any objection thereto in the trial court or made a motion for rehearing, for new trial, or to alter or amend the judgment.

(f) Order Granting to Specify Grounds. All orders granting a new trial must state the specific grounds therefor. If such an order is appealed and does not state the specific grounds, the appellate court shall relinquish its jurisdiction to the trial court for entry of an order specifying the grounds for granting the new trial.

(g) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 15 days after the date of filing of the judgment, except that this rule does not affect the remedies in rule 1.540(b).

(h) Motion for Remittitur or Additur. (1) Not later than 15 days after the return of the verdict in a jury action or the date of filing of the judgment in a non-jury action, any party may serve a motion for remittitur or additur. The motion must state the applicable Florida law under which it is being made, the amount the movant contends the verdict should be, and the specific evidence that supports the amount stated or a statement of the improper elements of damages included in the damages award. (2) If a remittitur or additur is granted, the court must state the specific statutory criteria relied on. (3) Any party adversely affected by the order granting remittitur or additur may reject the award and elect a new trial on the issue of damages only by filing a written election within 15 days after the order granting remittitur or additur is filed.  (October 19, 2023.)

Probate, trust and guardianship matters are almost always heard without a jury.  Motions for rehearing are typically optional, but a properly filed motion for rehearing tolls the time for filing a Notice of Appeal, which is 30 days from the entry of the order or judgment to be appealed.

Rule 1.530(a) has a severe trap for the unwary, in that a motion for rehearing must be filed to preserve appellate rights, if the appeal is going to be based upon the trial court’s failure to make requisite findings of fact in the final judgment.  The Florida Supreme Court explained the rule as follows:

Having considered the comments filed, we further amend rules 1.530 and 12.530 by replacing “sufficiency of a trial court’s findings in the final judgment” in subdivision (a) (Jury and Non-Jury Actions) of both rules with “failure of the trial court to make required findings of fact in the final judgment.” This change makes clear that the 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 Amendments to Fla. Rule of Civil Procedure 1.530, SC2022-0756 (Fla. Oct 19, 2023).

Does a Motion for Rehearing Toll the Deadline for Filing an Appeal?

The deadline for appealing a ruling of a trial court is 30 days, as set forth at Florida Rules of Appellate Procedure 9.110(b):

(b) Commencement. Jurisdiction of the court under this rule shall be invoked by filing a notice, accompanied by any filing fees prescribed by law, with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed, except as provided in rule 9.140(c)(3).

Certain motions “toll,” or extend the deadline for filing the Notice of Appeal.  Florida Rules of Appellate Procedure 9.020(h)(1) sets forth a list of motions that toll the appellate deadline.  Those relevant to probate, trust and guardianship matters are as follows:

(1) Motions Tolling Rendition. The following motions, if authorized and timely filed, toll rendition unless another applicable rule of procedure specifically provides to the contrary:

(A) motion for new trial, remittitur, or additur;

(B) motion for rehearing;

(C) motion for certification;

(D) motion to alter or amend;

(E) motion for judgment in accordance with prior motion for directed verdict.

Combining the rules together results in the following conclusions:  an “authorized” motion for rehearing is required to be filed to appeal a “final judgment” based on the lack of requisite factual findings, and such a motion tolls the deadline for filing a Notice of Appeal, but an “unauthorized” motion for rehearing does not toll the deadline for filing a Notice of Appeal.

Final Judgment Rule

An earlier version of rule 1.530(a) from April 27, 2023, covered all orders, as well as final judgments.  That earlier version stated as follows:

(a) Jury and Non–Jury Actions. A new trial may be granted to all or any of the parties and on all or a part of the issues. To preserve for appeal a challenge to the failure of the trial court to make required findings of fact, a party must raise that issue in a motion for rehearing under this rule. On a motion for a rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.

Fla. R. Civ. P. 1.530(a) (April 27, 2023).

The Florida Supreme Court explained that the April 2023 change was:

applicable to all orders, not just final judgments, and makes clear that the 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 Amendments to Fla. Rule of Civil Procedure 1.530, SC2022-0756 (Fla. Apr 27, 2023).

The requirement to file a motion for rehearing was changed between the April, 2023 and October, 2023 versions in that the April version required a motion for rehearing on all orders and judgments, and the newer October version only requires a motion for rehearing to be filed to appeal a final judgment due to the lack of requisite factual findings in the judgment.

A motion for rehearing directed to a non-final order is not authorized and therefore does not toll the deadline for filing a Notice of Appeal.  As explained in Send Enters. v. Set Drive, LLC, 3D23-1175 (3rd DCA  2023):

It is therefore well-established Florida law that motions for rehearing of non-final orders are unauthorized and cannot toll rendition of an order pursuant to Rule 9.020(h)(1)(B). See LaCarrere v. Reilly, 987 So.2d 816, 816 (Fla. 3d DCA 2008) (“Unlike authorized and timely motions directed to a final order, however, motions for reconsideration or rehearing of non-final orders are unauthorized and, therefore, do not toll the thirty-day time limit for filing the notice of appeal.”); Avael Law Firm, PLLC v. Sechrist, 347 So.3d 424, 427 n.5 (Fla. 3d DCA 2022) (“‘[A] motion for rehearing directed to a nonfinal order . . . is not authorized under the rules and does not toll the time for filing the notice of appeal’ from an appealable, non-final order.” (quoting Deal v. Deal, 783 So.2d 319, 321 (Fla. 5th DCA 2001))); Doukas v. Doukas, 335 So.3d 218, 219 (Fla. 1st DCA 2022)  (“A motion for rehearing is not authorized as to a non-final order, so it does not toll the time for appeal.”); Lovelace v. Lovelace, 124 So.3d 447, 447 (Fla. 1st DCA 2013) (“The law in Florida is well settled that a motion for rehearing or reconsideration does not toll the time for filing an appeal from a non-final order reviewable pursuant to the provisions of Florida Rule of Appellate Procedure 9.130.”).

The language of rule 1.530(a), requiring a motion for rehearing to challenge the making of factual findings is “final judgment.”  A motion for rehearing, in the language of the caselaw, is allowed for “final orders,” but not for “non-final orders.  So is the motion for rehearing required for a “final order” that is not characterized as a judgment?  And how does a litigant distinguish between a “final order” and a “non-final order”?

To make matters more confusing, some non-final orders can be appealed, but most cannot be.  Fortunately, the Florida Rule of Appellate Procedure 9.130 provides a list of non-final orders that can be appealed.  (To be clear, these are orders that can be appealed, for which a motion for rehearing would be improper, and for which, obviously, a motion for rehearing is not required to be filed before an appeal can be filed based on the lack of requisite factual findings.)  Those relevant in probate, trust and guardianship matters are as follows:

(1) This rule applies to appeals to the district courts of appeal of the nonfinal orders authorized herein and to appeals to the circuit court of nonfinal orders when provided by general law. Review of other nonfinal orders in such courts and nonfinal administrative action shall be by the method prescribed by rule 9.100.

(3) Appeals to the district courts of appeal of nonfinal orders are limited to those that:

(A) concern venue;

(B) grant, continue, modify, deny, or dissolve injunctions, or refuse to modify or dissolve injunctions

(C) determine:

(i) the jurisdiction of the person;

(ii) the right to immediate possession of property, including but not limited to orders that grant, modify, dissolve, or refuse to grant, modify, or dissolve writs of replevin, garnishment, or attachment;

(iii) in family law matters: a. the right to immediate monetary relief; b. the rights or obligations of a party regarding child custody or time-sharing under a parenting plan; or c. that a marital agreement is invalid in its entirety;

(iv) the entitlement of a party to arbitration, or to an appraisal under an insurance policy;

(viii) the issue of forum non conveniens;

(ix) that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed; or

(x) that a permanent guardianship shall be established for a dependent child pursuant to section 39.6221, Florida Statutes;

(E) grant or deny a motion to disqualify counsel;

(4) Orders disposing of motions for rehearing or motions that suspend rendition are not reviewable separately from a review of the final order; provided that orders granting motions for new trial in jury and nonjury cases are reviewable by the method prescribed in rule 9.110.

(5) Orders entered on an authorized and timely motion for relief from judgment are reviewable by the method prescribed by this rule. Motions for rehearing directed to these orders are not authorized under these rules and therefore will not toll the time for filing a notice of appeal.

Florida Rule of Appellate Procedure 9.170 states that appeals of orders in probate and guardianship cases is limited to “orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code.”  Rule 9.170 also provides a non exhaustive list of appealable final orders.  As always, if there is any doubt as to whether a ruling is a final order within the ambit of the rule, an appeal should be filed.  The worst outcome is that the appellate court rejects hearing the appeal as not final enough.

RULE 9.170. APPEAL PROCEEDINGS IN PROBATE AND GUARDIANSHIP CASES

(a) Applicability. Appeal proceedings in probate and guardianship cases shall be as in civil cases, except as modified by this rule.

(b) Appealable Orders. Except for proceedings under rule 9.100 and rule 9.130(a), appeals of orders rendered in probate and guardianship cases shall be limited to orders that finally determine a right or obligation of an interested person as defined in the Florida Probate Code. Orders that finally determine a right or obligation include, but are not limited to, orders that:

(1) determine a petition or motion to revoke letters of administration or letters of guardianship;

(2) determine a petition or motion to revoke probate of a will;

(3) determine a petition for probate of a lost or destroyed will;

(4) grant or deny a petition for administration pursuant to section 733.2123, Florida Statutes;

(5) grant heirship, succession, entitlement, or determine the persons to whom distribution should be made;

(6) remove or refuse to remove a fiduciary;

(7) refuse to appoint a personal representative or guardian;

(8) determine a petition or motion to determine incapacity or to remove rights of an alleged incapacitated person or ward;

(9) determine a motion or petition to restore capacity or rights of a ward;

(10) determine a petition to approve the settlement of minors’ claims;

(11) determine apportionment or contribution of estate taxes;

(12) determine an estate’s interest in any property;

(13) determine exempt property, family allowance, or the homestead status of real property;

(14) authorize or confirm a sale of real or personal property by a personal representative;

(15) make distributions to any beneficiary;

(16) determine amount and order contribution in satisfaction of elective share;

(17) determine a motion or petition for enlargement of time to file a claim against an estate;

(18) determine a motion or petition to strike an objection to a claim against an estate;

(19) determine a motion or petition to extend the time to file an objection to a claim against an estate;

(20) determine a motion or petition to enlarge the time to file an independent action on a claim filed against an estate;

(21) settle an account of a personal representative, guardian, or other fiduciary;

(22) discharge a fiduciary or the fiduciary’s surety;

(23) grant an award of attorneys’ fees or costs;

(24) deny entitlement to attorneys’ fees or costs; or

(25) approve a settlement agreement on any of the matters listed above in (b)(1)–(b)(24) or authorizing a compromise pursuant to section 733.708, Florida Statutes.

Some of the proceedings set forth above will be as a result of an evidentiary hearing and some will be as a result of summary judgment.  An order that grants summary judgment but does not actually enter a judgment is a nonfinal order that cannot be appealed.  As explained in Gnaegy v. Morris, 3D22-2065 (3rd DCA 2023):

In addition, the order on appeal merely “grants” summary judgment, but does not actually enter judgment in favor of Appellee on her claims, nor does it contain the traditional words of finality. This independently renders that portion of the order nonfinal and nonappealable. See Lidsky Vaccaro & Montes, P.A. v. Morejon, 813 So.2d 146, 149 (Fla. 3d DCA 2002) (noting “the law is settled that an order which merely grants a motion for summary judgment and does not otherwise contain the traditional words of finality is not a final order subject to appellate review. An order granting only summary judgment merely establishes an entitlement to a judgment, but is not itself a judgment.”) (internal citations omitted).

What Probate, Trust and Guardianship Matters Require Factual Findings?

In order to avoid falling into the trap of not filing the required motion for rehearing to appeal a ruling based on the lack of requisite factual findings, two principles come to mind.  First, most probate, trust and guardianship proceedings do not end up with a final order that is called a “judgment.”  In the absence of a ruling styled as a “judgment,” the requirement to file the motion for rehearing should not apply – especially because the Florida Supreme Court amended the rule between April and October of 2023 to limit the requirement to only those results that are styled as “judgments.”

In the event that a probate court does issue a final order styled as a judgment, a number of proceedings require factual findings from the trial court, which would necessitate the filing of the Motion for Rehearing if an appeal based on the insufficiency of the factual findings is going to be brought.

Practice Tip:  A Motion for Rehearing should never be filed in a probate, trust or guardianship matter unless the ruling to be appealed is styled as a “judgment.”  If the ruling to be appealed is styled as a judgment, if the grounds for appeal are a lack of requisite factual findings, a Motion for Rehearing must be filed, but a Notice of Appeal should always be filed within 30 days of the entry of the judgment, with a request to return jurisdiction to the trial court to consider the Motion for Rehearing.  Even for appellate grounds other than the lack of factual findings, if a Motion for Rehearing is filed (which would then be optional), strong consideration should always be given to filing the Notice of Appeal within 30 days of the entry of the judgment with a request to the appellate court to return jurisdiction to the trial court.  Missing the deadline for filing the Notice of Appeal cannot normally be cured.

The following is a nonexhaustive list of proceedings requiring the trial court to make factual findings, which to reiterate, requires a  Motion for Rehearing to challenge the sufficiency of the factual findings if the ruling is in the form of a “judgment.”

  • To award attorney fees in a guardianship matter less than what is requested.  As explained in Fletcher v. Bennett, 2D22-1794 (2nd DCA 2023):

In awarding fees under section 744.108, a circuit court must explain the basis for the award, including the reasonable hourly rate, the number of compensable hours, and the other factors that the court considered in determining the award. In re Kesish, 98 So.3d 183, 185 (Fla. 2d DCA 2012) (citing Thorpe, 67 So.3d at 346). Such findings are necessary for “meaningful appellate review.” Ansley, 94 So.3d at 713 (quoting Jones v. Dunning, 661 So.2d 941, 942 (Fla. 5th DCA 1995)). Where an order fails to contain “meaningful findings concerning the reasonable hourly rates and the number of hours compensated [or where it] omits any statement of other factors that the circuit court considered in reducing the amount requested[, such] deficiencies make it impossible for [an appellate] court to engage in meaningful appellate review of the order on appeal.”

Id. at 714. We have previously recognized that section 744.108 “does not require the court to make findings of fact in support of . . . fee awards,” yet we have also acknowledged that in the absence of such a statutory requirement, “courts have required findings to support discretionary rulings on specific kinds of issues when the absence of such findings might create a perception of arbitrariness or deprive the parties of meaningful appellate review.” In re Guardianship of Sitter, 779 So.2d 346, 348 (Fla. 2d DCA 2000).

A circuit court need not explicitly reference the statute as long as the circuit court provides a sufficient explanation for the reduction in a fee request. See Meyer v. Watras, 223 So.3d 1010, 1013 (Fla. 4th DCA 2017). However, at a minimum, it must provide sufficient factual findings regarding the compensable number of hours and the reasonable hourly rate on which the fee award was based. See id. The court in Meyer acknowledged that sorting through time entries is “exceedingly painstaking and time consuming,” but it is also “a necessary evil [for] trial judges [to] make that effort.” Id. (quoting Haines v. Sophia, 711 So.2d 209, 211 (Fla. 4th DCA 1998)). We agree.

  • To overcome the presumption that the title on an account controls who is to receive such account at death.  As explained in Larkins v. Mendez, 3D21-2039, 3D22-484 (3rd DCA 2023):

Hence, contrary to Larkin, Jr.’s assertion, the probate court’s inquiry was not limited to the four corners of the signature card; rather, its inquiry was whether the personal representative established, by clear and convincing evidence, that, notwithstanding the signature card, Decedent’s intent was to create a convenience account. Thus, on appeal, our inquiry, is whether there exists competent, substantial evidence of “clear and convincing proof of a contrary intent.” Id. Put another way, because the signature card executed in connection with the conversion of the bank account indicated that the account would be a joint account with a right of survivorship, we review the trial record to determine whether there was competent, substantial evidence – of a clear and convincing nature supporting the probate court’s conclusion that Decedent intended for this account to be a convenience account, rather than a joint account with a right of survivorship. Estate of Sonder, 63 So.3d at 10; § 655.79(2), Fla. Stat. (2021). We do not reweigh the evidence; in fact, in conducting a competent, substantial evidence inquiry, we look only at the evidence supporting the probate court’s conclusion, disregarding all contrary evidence. Edwards, 257 So.3d at 588.

  • To award attorney’s fees for bad faith conduct in litigation.  As explained in In re Buechele, 3D22-1038 (3rd DCA 2023):

While the Sanctions Order cites no legal basis for the award of fees, the parties agree that the trial court relied upon its inherent authority to impose fees as a sanction pursuant to Moakley, 826 So.2d at 226. In Moakley, the Florida Supreme Court clarified that “a trial court possesses the inherent authority to impose attorneys’ fees against an attorney for bad faith conduct.” Id. A trial court exercising this authority, it continued, must strike “an appropriate balance . . . between condemning as unprofessional or unethical litigation tactics undertaken solely for bad faith purposes, while ensuring that attorneys will not be deterred from pursuing lawful claims, issues, or defenses on behalf of their clients or from their obligation as an advocate to zealously assert the clients’ interests.” Id.   Accordingly, the inherent authority to impose attorney’s fees for bad faith conduct “carries with it the obligation of restrained use and due process.” Id at 227.

The Moakley Court established several requirements which must be followed by a trial court in exercising its inherent authority to impose fees as a sanction for bad faith conduct:

1. The attorney’s fees sanction “must be based upon an express finding of bad faith conduct.” Id.
2. The attorney’s fees “must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees. Thus, a finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings.” Id.
3. “[T]he amount of the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney.” Id.
4. “[S]uch a sanction is appropriate only after notice and an opportunity to be heard-including the opportunity to present witnesses and other evidence.” Id.
See also Goldman v. Est. of Goldman, 166 So.3d 927, 930 (Fla. 3d DCA 2015) (holding the trial court could not impose sanctions without making an express finding of bad faith and detailed factual findings describing specific bad faith acts).

  • To modify a trust after the death of the settlor, but not if the settlor and all beneficiaries agree with the modification.  As explained in Demircan v. Mikhaylov, 306 So.3d 142 (3rd DCA 2020):

The cases on which the current trustee relies for the proposition that factual findings pursuant to chapter 736 must be made before modification is allowed under Preston are inapposite. As the Second District noted in Peck, responding to an identical challenge, these cases are distinguishable because they do not involve modifications jointly agreed to by settlors and beneficiaries. 133 So. 3d at 591. In Bellamy v. Langfitt, 86 So. 3d 1170, 1171 (Fla. 3d DCA 2012), Horgan v. Cosden, 249 So. 3d 683, 687 (Fla. 2d DCA 2018), and Featherston v. Tompkins, 339 So. 2d 306, 307 (Fla. 3d DCA 1976), the settlors were deceased, and modification was sought by other parties. Moreover, Bellamy and Horgan involved only statutory modifications. Bellamy, 86 So. 3d at 1174 ; Horgan, 249 So. 3d at 685, 687.

 

Jeffrey Skatoff is a Florida probate attorney.  To have Mr. Skatoff review your case free of charge, please go to his website.

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