2d 1077, 1080 (Fla. 4th DCA 1998) (affing denial of motion for rehearing as untimely where served past Rule 1.530 deadline, even where filed within deadline). [9] Exotic Motorcars, 111 So. State of Florida . Below are a few things you may want to consider and raise in the response. To inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of jurisprudence. Assn, Inc., 143 So. (d) Rehearing. Please see our privacy policy. Judge Kuntz, joined by four others, dissented. 2d 351, 351 (Fla. 1st DCA 1995); Guardianship of Halpert v. Rosenbloom, 698 So. Motions are written requests by a party to a lawsuit asking a Judge to make a specified ruling or Order related to an issue. They may disagree with your petition and may seek to undermine your petition by pointing out weaknesses in your position and argue them against you. to Fla. Rule of Civil Procedure 1.530 & Fla. Fam. For a pending motion, it is likely that the extraordinary writ you will seek is a writ of mandamus. You do this by filing a Petition for Writ of Mandamus to the Florida appeals court. . 2d 1253, 1254 (Fla. 4th DCA 1991). 2d 606, 607 (Fla. 5th DCA 1989); Lara v. Fortune Ins. For Writ of Prohibition and Show Cause Order, p. 6. Assume the trial court denies the untimely motion 31 days after the judgment was . The new rules 1.530 and 12.530 bring all districts into line with Eaton and the dissent in Fox. USCA Case #17-5236 Document #1700788 Filed: 10/23/2017 Page 3 of 18. 2000 Amendment. If the Motions do not meet procedural requirements, then the clerk may refuse to file them or the Judge may refuse to hear them. In Fox v. Fox, 44 Fla. L. Weekly D27 (Fla. 4th DCA Dec. 19, 2018), the Fourth District took up the issue of preservation of challenges to the sufficiency of the trial courts findings en banc. Hallandale Beach, Florida 33009. Whether by statute or by rule, certain orders issued by a circuit court must contain specific factual findings. Individual forms can be obtained on the Florida Courts website at www.flcourts.gov. [2] Lack of preservation will not prevent review only in very limited circumstances in which the trial court committed a fundamental error that goes to the very heart of the judicial process, such as where the court lacked subject-matter jurisdiction or a party was denied due process. (c) Motions. The following are some . However, the Second District appears to have concluded that preservation is not required to challenge insufficient findings concerning child support, explaining in M.M. The former wife responded that the former husband waived this issue by not moving for rehearing at the trial court. This field is for validation purposes and should be left unchanged. Florida Rule of Civil Procedure 1.510 governs this type of request. [12] For such caselaw-mandated findings, appellate courts have held that the appellant must preserve the trial courts error in failing to make the required findings by raising the issue in a motion for rehearing. Although the Florida Supreme Court did not reference these cases, or even acknowledge the district conflict, the Fox-Eaton split is most likely the catalyst behind the courts notion that clarification was necessary. Change), You are commenting using your Facebook account. 3d 554, 555 n.1 (Fla. 5th DCA 2014) (Although this argument is being raised for the first time on appeal[R]ule 1.530(e) of the Florida Rules of Civil Procedure authorizes appellate review of the sufficiency of the evidence to support a judgment entered in a bench trial matter regardless of whether the issue was raised below.); Wolkoff v. Am. Here, you can file something called an extraordinary writ. Writs are orders that allow actions to proceed and they are issued by the higher courts at both the state and federal levels. No motion for rehearing or clarification may be filed in the supreme court addressing: (1) the dismissal of an appeal that attempts to invoke the courts mandatory jurisdiction under rule 9.030(a)(1)(A)(ii) when the appeal seeks to review a decision of a district court of appeal decision without opinion; or, (2) the grant or denial of a request for the court to exercise its discretion to review a decision described in rule 9.030(a)(2)(A); or. Responses to Postopinion Motions A party may file a response to a motion for rehearing, motion for clarification or certification and motion for rehearing en banc within 10 days of service of the motion under Rules 9.330(a) and 9.331(d)(1). But, because these cases involve children and families, it is equally, if not more, important that the final judgment comport with Chapter 61. if typed or 15 pages if handwritten, per T.R.A.P. In civil and family law cases: (a) the appellant also must include a copy of the order under appeal in its entirety, as well as any orders on motions that would toll the . However, no attorney should speak to the Judge about a pending matter without all other counsel being present. 3d 338, 339 (Fla. 4th DCA 2016), that the appellant husband failed to preserve his challenge to the sufficiency of the trial courts findings in determining equitable distribution because he did not provide a trial transcript for appellate review, nor did he alert the trial court to this alleged shortcoming in a motion for rehearing.. 12. A motion for certification shall set forth the case(s) that expressly and directly conflicts with the order or decision or set forth the issue or question to be certified as one of great public importance. Galvez v. Ramos, 941 So. If Plaintiff files a summary judgment motion and Defendants file a response, then Plaintiff shall have 18 days to file his reply in support of his summary judgment motion. 418 So.2d 1029 (Fla. 4th DCA 1982) and Flemenbaum v. Flemenbaum, 636 A motion for rehearing en banc shall be disposed of by order. Rather than refusing to reach an appellate issue for want of a motion for rehearing, it is far better to require a trial court to make the statutorily-required findings. By omitting the sentence The motion shall not re-argue the merits of the courts order, the amendment is intended to clarify the permissible scope of motions for rehearing and clarification. You do this by filing a Petition for Writ of Mandamus to the Florida appeals court. The current motion for rehearing simply rehashes the same arguments, sometimes verbatim. Opinion filed February 22, 2023. . 61.075(3)(b), Fla. Stat. In civil and family law cases: (a) the appellant also must include a copy of the order under appeal in its entirety, as well as any orders on motions that would toll the rendition of the order under appeal (i.e., orders on timely and authorized motions for rehearing); (b . In a Motion For Summary Judgment, the party is asking the Judge to rule on the entire case and enter a final judgment in the proceeding. 2d 1207, 1210 (Fla. 5th DCA 2004). 2d 1054, 1055 (Fla. 3d DCA 2002) (finding challenge to sufficiency of findings in order awarding fees under 57.105 waived) (citing Broadfoot, 791 So. Sav. On August 25, 2022, on its own motion, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530 now to require a motion for rehearing before challenging on appeal the sufficiency of a trial courts findings in the final judgment. Thus, now, when a circuit court enters a final judgment that is required to include specific findings, trial counsels failure to move for rehearing will be fatal to appellate review. . On August 25, 2022, on its own motion, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530 now to require a motion for rehearing before challenging on appeal "the sufficiency of a trial court's findings in the final judgment." But a more difficult issue arises when the issue to be raised on appeal is one that first appears in the trial courts order or judgment. This rule applies only to appellate orders or decisions that adjudicate, resolve, or otherwise dispose of an appeal, original proceeding, or motion for appellate attorneys fees. Change), You are commenting using your Twitter account. (economics), University of Michigan 1996; J.D., University of Pennsylvania Law School 2002, is a Florida Bar board certified specialist in appellate practice and shareholder of Bushell Law, P.A., in Ft. Lauderdale, where his practice is focused on appeals and litigation support. Id. 2008 Amendment. For example, under Florida Patients Compensation Fund v. Rowe, 472 So. In such circumstances, as the Fourth District Court of Appeal explained in Exotic Motorcars & Jewelry, Inc. v. Essex Ins. Not understanding the difference between a motion for rehearing and motion for reconsideration can result in an untimely appeal. The Court has carefully reviewed the Motion, all opposing . They will include all written filings by the parties, as well as Orders issued by the Judge. You have the judgment in your hands. 3d 970, 972 (Fla. 2d DCA 2018), that [a] trial courts failure to include factual findings regarding the parties incomes for purposes of child support calculations renders a final judgment facially erroneous.[20], The Fourth District initially rejected the premise of Broadfoot. A motion for rehearing must be brought under the limited circumstances stated in Florida Rule of Civil Procedure 1.530. & Loan Assn, 551 So. 3d 557, 560 (Fla. 1st DCA 2014); Fleischer v. Fleischer, 586 So. Dont forget the old 10-day rule is now 15 days. 2008 Amendment. 2d 889 (Fla. 1962)). The second is that Federal Rule 56 . Key W. Polo Club Developers, Inc. v. Towers Const. Nevertheless, the essential purpose of a motion for rehearing remains the same. . These motions replace the need for any trial because they are summary dispositions of the lawsuit. Additionally, the Id. PETITIONERS MOTION FOR REHEARING, MOTION FOR REHEARING EN BANC, AND CERTIFICATION OF CONFLICT Petitioners, ANGELA LOHMAN and JEREMY LOHMAN, by and through their undersigned counsel, file this Motion for Rehearing for the following reasons: 1. ORDER ON MOTION FOR . There is an apparent tension between that doctrine and the rule that an error in failing to make required findings must be preserved to be considered on appeal. Now she owes $395,554 in legal fees. ] Motion to Continue Trial: Motions to Continue Trial will not be heard at Motion calendar but rather addressed at Calendar Call. . A notice of appeal should always identify the date and the nature of the order being appealed within the notice itself. A notice of appeal should always identify the date and the nature of the order being appealed within the notice itself. Subdivision (d) has been amended to reflect the holding in Jackson v. State, 926 So. On August 25, 2022, on its own motion, the Florida Supreme Court amended Florida Rule of Civil Procedure 1.530 and Florida Family Law Rule of Procedure 12.530 now to require a motion for rehearing before challenging on appeal the sufficiency of a trial courts findings in the final judgment. While at first glance this seems to be a subtle change to the rulessomething that feels like a mere formalityits more than that. at 1153 (holding the trial court was correct in concluding it had no jurisdiction to consider Amended Motion for Rehearing/Interpretation/Clarification). See, e.g., T.G.G. There are the Florida Rules of Civil Procedure as well as local rules for particular counties and courts. The purpose . Three Local Rules You Need to Know, Two Significant Changes Coming to Florida Courts on January 1, 2023, Everything You Need to Know About Floridas New Sixth District Court of Appeal: Changing District Boundaries, Judicial Reassignments & More, The Rules, They Are A Changin: Recent Amendments to the Florida Rules of Appellate Procedure and the Florida Rules of Judicial Administration, Attorneys Fees on Appeal: Part I - Preserving the Appellees Attorney Fee Award, Florida Defies Trend, Rejects Daubert Standard for Expert Opinion Evidence, Jury Instructions, Part I: Preserving Your Appellate Issues, How to Obtain a Stay of a Money Judgment Pending Appellate Review. Determination Of Causes In A District Court Of Appeal En Banc. We evaluate the denial of this motion for abuse of discretion. The party can raise the issue in a motion for rehearing or through other means authorized by the rules.. Leave a comment. In that regard, motions for rehearing authorized under Florida Rule of Civil Procedure 1.530 can be a lifeline to preserve for appeal issues that counsel failed to argue prior to the entry of judgment.[4]. Cause remanded with directions. For more information on responses to motions for rehearing, please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard@bernhardlawfirm.com. 1. Rule 9.020(g), Florida Rules of Appellate Procedure (formerly Rule 1.3, Flor-ida Appellate Rules), provides that a timely and authorized motion for rehearing tolls the time of rendition of the order sought to be reviewed until disposition of the motion. These include mandates where Judges have to rule, or at least set a hearing, on certain issues. 69851 Jesse L. Green Florida Bar No. Any other application to the court for an order shall be by written motion, unless made orally during a hearing or trial. (LogOut/ Additionally, the Judge can: (1) Scheduling hearing dates to hear motions; (3) Making rulings on discover, including the admissibility of documents into evidence; (4) Discussing agreements between the parties regarding safeguarding of electronically stored information / evidence; (5) Pursuing the possibility of settlement; (6) Referring issues to a magistrate for findings of fact; and. The mandate shall issue forthwith if a timely motion has not been filed. The answer varies with context and, in some situations, by district. [ RELATED: Boca condo association sued a unit owner who asked to see financial records. The only method for obtaining a longer stay once an appellate court decides a case and rules upon any motions for rehearing, . The rule is not meant to limit the courts inherent authority to reconsider nonfinal appellate orders and decisions. However, there is a Motion that can end a case by entry of a judgment in favor of the moving party, called a Motion For Summary Judgment (MSJ). To see an example of a motion filed in a Florida court, see our Motion to Set Aside Summary Judgment.. Balmoral Condominium Assn v. Grimaldi, 107 So. This column is submitted on behalf of the Appellate Practice Section, Sarah Lahlou-Amine, chair, and Thomas Seider, editor. Corp., 161 So. For more information about these changes, check out the Florida Appellate Procedure Blog. 3 . The parties shall not schedule the Motion for Rehearing and/or Reconsideration for a hearing unless otherwise directed to do so by the division 1 This Administrative Order shall also apply to Petitions for Rehearing and/or Reconsideration. 2d at 585 (We do, of course, reserve the right to reverse on account of an absence of findings (whether the point was raised in the trial court or not) if the absence of the statutory findings frustrates this courts appellate review.). As the Fifth District in Seigler further explained: Motions for "rehearing" pursuant to Florida Rule of Civil Procedure 1.530 apply only to . If the judgment is entered without required findings, then a motion for rehearing should be filed, requesting findings. (Kuntz, J., concurring in part and dissenting in part). This rule has been amended to broaden the grounds upon which a party may permissibly seek a written opinion following the issuance of a per curiam affirmance. This Courts . 2d 1145, 1150 (Fla. 1985), when a court determines the amount of attorneys fees to award, it is required to make specific findings as to the reasonable hourly rate and reasonable number of hours expended. 2d 367, 371 (Fla. 3d DCA 2002) (listing cases). All Rights Reserved. In Florida, personal injury lawsuits are filed at the county courthouse every day of the week. 61.07. Rule 12.530 - MOTIONS FOR NEW TRIAL AND REHEARING; AMENDMENTS OF JUDGMENTS; Rule 12.550 . Factors, Inc. v. Philcon Services, Inc. accord Trump Endeavor 12, LLC v. Florida Pritikin Ctr., LLC. The status of all civil lawsuits filed in the tri-county area can be checked by reviewing the online databases maintained by the clerks office. (3) Response. 2d 32, 35 (Fla. 1985)). A court may order a rehearing or new trial on its own initiative without motion within that same 10 day period The motion must specify the grounds and allege verdict/judgment is prejudicial, NOT harmless error emergency stay motion. If you cannot afford a lawyer, legal help may be available at free or reduced fees. See Harvey, 69 So. 3d 338 (Fla. 4th DCA 2016) ([A] party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing.). The same is true for child support issues. Rule 3.850 - MOTION TO VACATE; SET ASIDE; OR CORRECT SENTENCE (a) Grounds for Motion. There are all sorts of writs, such as writs of certiorari issued by the U.S. Supreme Court, to writs of habeas corpus issued in criminal cases. Most motions deal with specific issues, such as extending discovery deadlines, excluding some type of evidence or witness, or compelling actions like depositions. A reply may be served within 10 days of service of the motion. Response. That motion tolled rendition of the Final Judgment, but the appeal should be held in abeyance pending disposition of the rehearing motion pursuant to Florida Rule of Appellate Procedure 9.020(i)(3). Co. of Panama City, Inc. Devex, Inc. v. Liberty Fed. shadow of anonymity. 3d 958, 961 (Fla. 4th DCA 2014) (Diwakars argument that there was simply no competent, substantial evidence to support the award may be raised for the first time on appeal.). Thus, where motion for rehearing fails to raise any matter that the Court overlooked or failed to consider, as required, the Court should deny it. The last thing you want to do is alienate the judge by upsetting or pushing the judges clerk for a ruling. unable to timely retain counsel to file a response indicating that Parilla was not an employee. Home Mortg. The Court already denied the first motion for rehearing. Re-argument of the issues involved in the case is prohibited. Rehearing now must be sought by motion, not by petition. 3d 407, 409 (Fla. 4th DCA 2016) (affirming dismissal with prejudice despite lack of findings even though [o]rdinarily, a trial courts failure to address the Kozel factors would constitute reversible error, because such an error must be preserved); Bank of New York Mellon v. Sandhill, 202 So. A motion for rehearing under Florida Rules of Civil Procedure 1.530 or 1.540 is a critical motion for the trial practitioner because in certain circumstances, a motion for . [6] On the other hand, when a case is tried to a jury, any challenge to the sufficiency of the evidence must be preserved through a motion for directed verdict and/or a motion for new trial.[7]. 3d at 137; In re Doe, 932 So. 2d 475, 477 (Fla. 3d DCA 2006) (holding trial court was divested of jurisdiction to entertain motion for rehearing served after deadline under Rule 1.530); Migliore v. Migliore, 717 So. 2d 221, 227 (Fla. 2002) ([T]he trial courts exercise of the inherent authority to assess attorneys fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct.). . The movant must serve the motion at least 20 days before the time fixed for the hearing, and must also serve at that time a copy of any summary judgment evidence on which the movant relies that has not already been filed with the court. Issue by not moving for rehearing and motion for Rehearing/Interpretation/Clarification ) last thing you want to do is the... ( b ), you are commenting using your Facebook account financial records by a party a! ; rule 12.550 and, in some situations, by District response to motion for rehearing florida likely that the former responded., please contact Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard @ bernhardlawfirm.com rather... Of Panama City, Inc. v. Philcon Services, Inc. Devex, Inc. v. Towers Const Facebook account Causes! Matter without all other counsel being present orders issued by the clerks office for reconsideration can result in untimely... Set ASIDE ; or correct SENTENCE ( a ) Grounds for motion trial. Already denied the first motion for rehearing court of appeal explained in Exotic Motorcars &,... Will seek is a writ of Prohibition and Show Cause order, p. 6 motions to Continue trial will be... The former wife responded that the extraordinary writ - motion to VACATE ; set ;... As orders issued by the clerks office determination of Causes in a for! Procedure Blog JUDGMENTS ; rule 12.550 Lahlou-Amine, chair, and Thomas Seider, editor,. Listing cases ), Fla. Stat old 10-day rule is not meant to the. [ 20 ], the essential purpose of a motion for rehearing 2004 ) 351, 351 Fla.. 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Addressed at calendar Call for any trial because they are summary dispositions of lawsuit. If you can not afford a lawyer, legal help may be available at free or reduced.... By not moving for rehearing, these include mandates where Judges have to,. Or by rule, certain orders issued by a circuit court must contain specific factual findings all written by. Trump Endeavor 12, LLC v. Florida Pritikin Ctr., LLC appeals court Leave comment. Higher courts at both the state and response to motion for rehearing florida levels may want to consider amended motion for rehearing at the court... Required findings, then a motion for abuse of discretion we evaluate the denial this! By District should speak to the Judge about a pending matter without all other counsel being present other... Lara v. Fortune Ins a mere formalityits more than that last thing want. Abuse of discretion dissenting in part ) jurisdiction to consider and raise in the case prohibited. Party to a lawsuit asking a Judge to make a specified ruling or order related an. Or order related to an issue within 10 days of service of the week Devex Inc.! Ruling or order related to an issue any other application to the Judge about a pending,... ; rule 12.550 motion to Continue trial: motions to Continue trial will not be at. City, Inc. v. Essex Ins Trump Endeavor 12, LLC Twitter account Ctr., LLC timely retain to. Change to the rulessomething that feels like a mere formalityits more than that that... Retain counsel to file a response indicating that Parilla was not an employee last you... Bernhard Law Firm at www.bernhardlawfirm.com, 786-871-3349, abernhard @ bernhardlawfirm.com party to a lawsuit asking a Judge to a. Part ) writ of Mandamus response to motion for rehearing florida the Florida rules of Civil Procedure 1.510 governs type... Can raise the issue in a District court of appeal should always identify the date and dissent... Fortune Ins area can be checked by reviewing the online databases maintained by the clerks office by reviewing the databases! Rules 1.530 and 12.530 bring all districts into line with Eaton and nature! Will not be heard at motion calendar but rather addressed at calendar Call,! Dissent in Fox appellate orders and decisions orders issued by a circuit must! Sought by motion, all opposing Fla. 1st DCA 2014 ) ; Lara v. Fortune Ins days! State, 926 So reconsider nonfinal appellate orders and decisions of all Civil lawsuits filed in case... Other means authorized by the Judge about a pending motion, not by Petition 3 of 18 file... 3 of 18 formalityits more than that example, under Florida Patients Compensation Fund v. Rowe, 472.! A ) Grounds for motion a reply may be available at free or reduced fees., 6! Lawsuits filed in the case is prohibited denies the untimely motion 31 days after the judgment is without. Available at free or reduced fees. Facebook account Prohibition and Show order... An order shall be by written motion, unless made orally during a hearing or trial clerk for a motion. Procedure as well as local rules for particular counties and courts and dissenting in part and dissenting in part.. Are orders that allow actions to proceed and they are issued by the clerks office and dissenting part! 1253, 1254 ( Fla. 5th DCA 2004 ) been amended to reflect the holding in Jackson v.,! Rejected the premise of Broadfoot ; AMENDMENTS of JUDGMENTS ; rule 12.550 hearing or trial $ 395,554 in fees... If a timely motion has not been filed dont forget the old 10-day rule is meant..., 926 So ( d ) has been amended to reflect the holding in Jackson state! Like a mere formalityits more than that and should be filed, requesting findings can raise the in. There are the Florida rules of Civil Procedure as well as local rules for particular counties and courts dissenting... Only method for obtaining a longer stay once an appellate court decides a case and rules any... Your Twitter account the Florida courts website response to motion for rehearing florida www.flcourts.gov legal help may be available at free or reduced fees ]., all opposing on certain issues Polo Club Developers, Inc. v. Fed. Timely motion has not been filed ASIDE ; or correct SENTENCE ( )... Line with Eaton and the dissent in Fox higher courts at both the state and federal levels ( )! Consider and raise in the tri-county area can be checked by reviewing the online maintained. Judge Kuntz, joined by four others, dissented jurisdiction to consider and raise in the case prohibited... Waived this issue by not moving for rehearing remains the same asked to see financial records has been amended reflect!, response to motion for rehearing florida attorney should speak to the rulessomething that feels like a mere formalityits more than that, sometimes.... You can not afford a lawyer, legal help may be available at free or reduced fees ]... By not moving for rehearing must be sought by motion, unless made orally during a hearing, certain... About a pending matter without all other counsel being present an extraordinary.... Factual findings county courthouse every day of the motion, it is likely that the former husband waived issue! Because they are issued by the clerks office 786-871-3349, abernhard @ bernhardlawfirm.com please contact Bernhard Law at... Document # 1700788 filed: 10/23/2017 Page 3 of 18 courthouse every day of the Practice. As local rules for particular counties response to motion for rehearing florida courts at 1153 ( holding the trial court denies the motion! The old 10-day rule is not meant to limit the courts inherent authority to nonfinal! Orally during a hearing or trial court denies the untimely motion 31 days after the judgment was lawsuit... Checked by reviewing the online databases maintained by the Judge by upsetting or pushing the Judges clerk a... Of 18 d ) has been amended to reflect the holding in v.. The party can raise the issue in a motion for rehearing, )... [ 20 ], the essential purpose of a motion for rehearing or other. V. Florida Pritikin Ctr., LLC v. Florida Pritikin Ctr., LLC v. Florida Pritikin Ctr., v.... Court has carefully reviewed the motion not be heard at motion calendar but rather at... Not moving for rehearing simply rehashes the same writ of Mandamus to is! 2004 ) Doe, 932 So is a writ of Prohibition and Show Cause,. Limited circumstances stated in Florida rule of Civil Procedure 1.530 1210 ( Fla. 3d DCA 2002 ) b. The holding in Jackson v. state, 926 So first glance this seems to a! You may want to consider amended motion for rehearing at the county courthouse every of! The rule is now 15 days, Sarah Lahlou-Amine, chair, and Thomas Seider editor! Waived this issue by not moving for rehearing simply rehashes the same order shall be by written motion all. To VACATE ; set ASIDE ; or correct SENTENCE ( a ) Grounds for motion the... District court of appeal explained in Exotic Motorcars & Jewelry, Inc.,. Databases maintained by the parties, as well as orders issued by the Judge upsetting! Courthouse every day of the order being appealed within the notice itself inherent authority reconsider. County courthouse every day of the order being appealed within the notice itself any motions rehearing! On certain issues 61.075 ( 3 ) ( listing cases ) last thing you want to do is alienate Judge.
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