- Is the opinion a written opinion as opposed to a per curiam decision?
- Does the opinion refer to cases not cited by the parties?
- Does the opinion fail to mention truly important cases that the losing party cited in his or her appellate brief(s)?
- Does the opinion refer to facts that the parties did not cite?
- Does the opinion fail to mention truly important facts that the losing party cited in its appellate brief(s)?
- Does the opinion directly conflict with the decisions of another district court?
- Does the opinion pass on a question of great public importance?
- Does the opinion clearly conflict with prior decisions of the same court?
1. Motions for Rehearing, Clarification, and Certification, and Request for Written Opinion Under Rule 9.330.
a. Motion for Rehearing.
The purpose of a motion for rehearing is very limited. Under Florida Rule of Appellate Procedure 9.330(a), a motion for rehearing cannot simply reargue the issues raised in the appellate briefs. The only grounds for a motion for rehearing are to point out specific facts or specific legal issues the court may have missed or misunderstood, also known as facts or issues which the court has “overlooked or misapprehended.” The motion for rehearing is not a chance for a party to complain about the appellate court or to tell the court how much it disagrees with the decision or how unfair it thinks the court is.If a party cannot point to specific facts or law already brought to the appellate court’s attention to show why the appellate decision is wrong, then there are generally no grounds to file a motion for rehearing. Florida Rule of Appellate Procedure 9.410 gives the appellate court the ability to sanction a party who files a motion for rehearing that is without any basis or is insulting or disrespectful to the court or the opposing party.
b. Motion for Clarification.
A motion for clarification is used to clarify something in a written opinion. For example, if the appellate panel stated its opinion, but missed a key fact, a party may want to file a motion for clarification. If the appellate court only partially explained the reason for its decision, then a party may want to file a motion for clarification. A party must follow the same procedures and standards in preparing a motion for clarification as when preparing a motion for rehearing. A party must also point to specific facts or legal issues that it believes need to be clarified.c. Motion for Certification.
A motion for certification asks the appellate court that decided the appeal to send the case to the Florida Supreme Court based on a specific and important question which needs to be answered or based on a conflict among the appellate courts.If certification is sought based on an important question, that question must be an issue which has great importance from the appellate court’s outlook, not the party’s, and which could have a great impact on the general public. So, before filing a motion for certification, a party must honestly ask whether the issue it would like to have certified to the Florida Supreme Court is an issue that is not just important to the party, but is important to most, if not all, Florida citizens or a specific group of citizens.
For example, a breach of contract question may only be important to the parties in that case, but not important to all Florida citizens. On the other hand, whether or not any person should get a hearing before having his or her property taken away by someone who said he breached a contract, may be a question of greater importance to all Florida citizens. As another example, getting a speeding ticket may be very important to the person who gets the ticket, but not important to all Florida citizens. On the other hand, the fact that one person was part of a specific group of people who were given speeding tickets while not even in a car may be important to more than just that one person, and, thus, it might also be an issue of great importance to all Florida citizens.
A party may also ask the appellate court to certify that its decision is in “direct conflict” with a decision of another district court of appeal.
A party must follow the same general procedures and standards in preparing a motion for certification as when preparing a motion for rehearing. A party must explain the specific question of great public importance and/or the direct conflict it is asking the district court to certify to the Florida Supreme Court.
d. Motion Requesting That the Appellate Court Issue a Written Opinion.
When the appellate court issues a decision without a written opinion, a party can file a motion asking the appellate court to write an opinion explaining its reasoning. However, to make that request, the motion must explain why the party believes that a written opinion would provide a basis for seeking Florida Supreme Court review. A party must follow the same general procedures and standards for this type of motion as when preparing a motion for rehearing.2. Motions for Rehearing En Banc Under Rule 9.331.
The appellate courts of Florida are divided into five districts covering specific counties:Second District Court of Appeal,
Third District Court of Appeal,
Fourth District Court of Appeal, and
Fifth District Court of Appeal.
A motion for rehearing en banc is filed under Florida Rule of Appellate Procedure 9.331(d). It asks the full court - meaning all appellate judges serving on that appellate court, not just the three judges who decided the case - to review the opinion and consider it, as a full court. There are two grounds upon which a party can ask the appellate court to do this:
(2) because it is necessary to “maintain uniformity in the court’s decisions,” meaning because the opinion in the case conflicts with other opinions of the same appellate court on the same issue.
A motion for rehearing en banc asks the entire appellate court to take the highly unusual step of reviewing the opinion and comparing it with previous decisions of that same appellate court. For that reason, a motion for rehearing en banc should only be filed after careful study of the current opinion and the law and facts controlling it. Good judgment must be used.
A motion for rehearing en banc must be filed within 15 days of the challenged decision or order. If a party wants to file such a motion, it is often advisable to combine the motion for rehearing en banc with a regular rehearing motion (for example, a “motion for rehearing and/or rehearing en banc”). This is because, as a matter of courtesy and common sense, before going to the entire court, the judges who issued the decision should first be given the opportunity to reconsider their own decision. Those judges are most familiar with the facts and legal issues of the appeal. Therefore, those judges would be the best place to start when trying to get a problem corrected.
