A recent opinion from the Sixth District Court of Appeal highlights a critical procedural issue for trial and appellate lawyers: whether an argument raised for the first time in a motion for rehearing is considered preserved for appeal.
In Hannah v. Malkani, No. 6D2023-1983, 51 Fla. L. Weekly D 279 (Fla. 6th DCA 2026), the Sixth District affirmed a trial court’s order granting summary judgment against the appellant. On appeal, the appellant argued that the doctrines of collateral estoppel and res judicata barred the appellee’s claim. However, the appellant did not raise this argument in opposition to the motion for summary judgment; rather, it was raised for the first time in a motion for rehearing directed at the summary judgment order. The trial court denied the motion, and the Sixth District subsequently found the collateral estoppel and res judicata argument to be unpreserved.
In reaching this conclusion, the Sixth District relied on its 2025 decision in Melrose Ventures, LLC v. Uptempo Mktg. Corp., 418 So. 3d 217 (Fla. 6th DCA 2025), certifying a direct conflict with the Fifth District’s decisions in Kawsar v. Alhamdi Grp., LLC, 369 So. 3d 1227 (Fla. 5th DCA 2023) and Elser v. Law Offs. of James M. Russ, P.A., 679 So. 2d 309 (Fla. 5th DCA 1996). Both Fifth District cases hold that a party can preserve a new argument by raising it for the first time in a motion for rehearing.
In Melrose, the Sixth District noted that a trial court has discretion to grant rehearing and consider new arguments, but it is not required to do so. 418 So. 3d at 219. Thus, the Sixth District will treat a trial court’s summary denial of a motion for rehearing raising new arguments as an exercise of its discretion to not consider those new arguments.
The Case for the Fifth DCA’s Approach
While the Sixth District has drawn a hard line, a strong argument can be made that the Fifth District’s position in Elser is the correct and more practical approach.
An order granting a motion for summary judgment is not truly final until a motion for rehearing is considered and disposed of. Until that final disposition occurs, a trial judge should be free to consider any legal error or matter overlooked relating to the entry of the summary judgment. Indeed, providing the trial court with an opportunity to correct its own errors is the very purpose of a motion for rehearing.
Practitioners should also remember the distinction between final and non-final orders. Florida Rule of Civil Procedure 1.530 specifically authorizes motions for rehearing of final orders. But well-established case law makes clear that trial courts possess the inherent authority to reconsider and alter all non-final orders at any time before the entry of a final judgment. See, e.g., Bettez v. City of Miami, 510 So. 2d 1242, 1243 (Fla. 3d DCA 1987)).
Paving the Way for Supreme Court Review
Interestingly, the Sixth DCA initially affirmed the Hannah case via a citation opinion. The appellant subsequently moved for rehearing or, alternatively, for a written opinion, arguing that a written opinion would provide a legitimate basis for Supreme Court review. The Sixth DCA agreed with the appellant on this point, granting the motion for a written opinion, vacating its prior citation opinion, and substituting a written opinion in its place.
A Procedural Cautionary Tale
If the Florida Supreme Court takes up Hannah, it will have the opportunity to resolve the conflict that failed to reach the high court in Melrose.
In Melrose—the case in which the Sixth DCA first certified this conflict—the appellant attempted to invoke the discretionary jurisdiction of the Florida Supreme Court. However, the appellant filed the notice more than 30 days after rendition of the Sixth District’s decision, prompting the Florida Supreme Court to dismiss the cause.
As revealed in the petitioner’s Motion to Vacate, this fatal error occurred because the appellant incorrectly calculated the time to file the petition from the issuance of the mandate. Under Florida Rule of Appellate Procedure 9.120 and Rule 9.020(i), which defines the rendition of an appellate order or opinion, the 30-day jurisdictional clock begins ticking when the opinion is “docketed by the clerk,” not when the mandate is issued.
Takeaways for Advocates
- Ideally, raise arguments initially: Best practice dictates that all arguments should be raised when the issue is first before the trial court.
- Do not hesitate on rehearing: Whatever rule ultimately applies, because the trial court maintains the discretion to consider arguments raised for the first time in a 1.530 motion for rehearing, advocates should not hesitate to include arguments that could have been, but were not, raised earlier. Just know that, in the Sixth, Fourth, and Third Districts, if the trial court summarily denies the motion for rehearing, those new arguments—as a general rule—will not be considered preserved for appellate review. Practitioners, however, can always try to persuade the appellate court that the trial court abused its discretion in failing to consider the arguments first raised in a motion for rehearing.
- Calculate appellate deadlines strictly: When seeking Florida Supreme Court review, ensure your 30-day window is calculated from the date the DCA opinion is docketed by the clerk, rather than the date the mandate issues.
