MOTION FOR REHEARING REQUIREMENT FOR HEARING ON MOTION “While Florida Rule of Civil Procedure 1.530(a) does not specifically require a hearing on a motion for rehearing, . . . due process requires a hearing on such a motion before a trial court can grant the motion and amend a final judgment.” J.R. Fenton, Inc. v. Gallery 600, Inc., 488 So.2d 587 (Fla. 2nd DCA 1986). The holding in Fenton is indicative of the law in the appellate districts in Florida in cases where a motion for rehearing has been granted. In Seaboard Coast Line Railroad Company v. Magnuson, 288 So.2d 302 (Fla. 4th DCA 1974), a case often cited as authority for when a trial court does not have to conduct a hearing on a motion for rehearing, although the Fourth District stated: “. . . when one of the parties to an adversary proceeding files a timely motion for new trial under Rule 1.530, RCP, 31 F.S.A. due process requires a hearing thereon after notice to all parties,” the court went on to say that the error in not conducting a hearing is harmless “in view of the fact that the motion contained no matters which had not been argued previously to the court during the course of the trial.” Id at 303 – 304. This holding was echoed by the Third District in Alberger v. Harvison, 342 So.2d 537 (Fla. 3rd DCA 1977), in finding that no new matter was raised in the motion that had not already been argued before the trial judge. Last year, the Fourth District spoke on the issue and provided some minor clarification under which circumstances a live hearing should be conducted. In Aubourg v. Erazo, 922 So.2d 1106 (Fla. 4th DCA 2006), the Fourth District did not step over the line to say that Florida Rule of Civil Procedure 1.530 requires a live hearing on all motions for new trial, but clarified that the only reason one was not ordered in Seaboard Coast Line (a previous holding from the Fourth District) was “failing to hold a hearing . . . was harmless because the motion contained no new matters which had not been argued previously to the court during the course of the trial.” Id. In Carnell v. Carnell, 398 So.2d 503 (Fla. 5th DCA 1981), the Fifth DCA specifically stated: We therefore conclude that the requirement of a hearing in a non-jury case is less compelling than in a jury trial. However, if a hearing is required (we agree with the court in Alberger and find no such requirement in the rule), appellant’s motion for rehearing contained no matters with merit that had not been previously argued to the court during trial. Id at 507. An analogous situation appears in another Fourth District case from 1982, Stella v. Stella, 418 So.2d 1029 (Fla. 4th DCA 1982), where a spouse in a divorce filed a motion seeking relief on the basis of fraud, misrepresentation or misconduct of the other party. Although the Fourth District Court of Appeal found that her allegations could easily be considered under Florida Rule of Civil Procedure 1.540(b)(3), it also opined that such conduct may also be the proper subject of a timely filed motion for rehearing under rule 1.530. The trial court in Stella denied the wife’s motion without a hearing. In reversing the trial court, the Fourth District stated that a party asserting fraud is entitled to an evidentiary hearing on the issue. Id. at 1030. In that case, the wife had evidence that the husband had given false testimony of the value of certain assets.
Posted on: Thu, 11 Jul 2013 14:02:37 +0000
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