The short answer: It depends! Florida Rule of Civil Procedure 1.530 explicitly states that on a motion for rehearing of "matters heard without a jury, including summary judgments, the court may open the judgement if one has been entered, take additional testimony, and enter a new judgment." Though the rule does not prohibit the making of new arguments in a motion for rehearing, whether such arguments are considered preserved for purposes of appeal is another matter. For those not versed in appellate speak, "unpreserved" means the appellate court will not consider the argument on appeal.
Florida's Sixth District Court of Appeal recently weighed in on this issue and held that a new argument presented to the trial court for the first time in a motion for rehearing (under Florida Rule of Civil Procedure 1.530) is unpreserved for purposes of the appeal, provided the trial court summarily denies the motion. Melrose Ventures, LLC v. Uptempo Mktg. Corp., No. 6D2023-3824, 2025 Fla. App. LEXIS 5712 (Fla. 6th DCA 2025). In so holding, Florida's newest appellate court joined the Second, Third, and Fourth Districts "who have already found that, as a general rule, new and different arguments untimely raised for the first time in motions for rehearing which were denied are unpreserved." Id. at *4-5.
The Sixth District noted that the Third District had previously made the opposite holding in Bailey v. Treasure, 462 So. 2d 537, 539 (Fla. 3d DCA 1985) but because Bailey did not "appear to be the currently prevailing law of the Third District," it did not certify conflict with Bailey. Melrose Ventures, 2025 Fla. App. LEXIS 5712 at *5, n.4. But see Walden v. Chase Manhattan Bank, U.S.A., N.A., 872 So. 2d 432, 433 (Fla. 4th DCA 2004) (noting that a summary judgment "is not final until a motion for rehearing is considered" and reversing summary judgment based in part on "supplement affidavits filed with the motion for rehearing").
The Sixth District certified conflict with two opinions of the Fifth District which held that a party can preserve a new argument by raising it for the first time on rehearing. Id. at *7 (certifying conflict with Kawsar v. Alhamdi Grp., LLC, 369 So. 3d 1227, 1230 (Fla. 5th DCA 2023) and Elser v. Law Offs. Of James M. Russ, P.A., 679 So. 2d 309 (Fla. 5th DCA 1996)).
In Elser, the Fifth District reasoned that an "order granting a motion for summary judgment is not final until the motion for rehearing is considered and disposed. 679 So. 2d at 312. "Until then, a trial judge is free to consider any legal error or matter overlooked related to the entry of the summary judgment. Indeed, that is the very purpose of a motion for rehearing." Id. The Fifth District considered and reversed the trial court based on an argument that the appellant had raised for the first time in a motion for rehearing.
The Sixth District, of course, is not bound by the decisions of its sister courts and made clear shortly after its creation that it intended to write on a clean slate. See CED Cap. Holdings 2000 EB, LLC v. CTCW-Berkshire Club, LLC, 363 So. 3d 192, 195 (Fla. 6th DCA 2023). As such, the Sixth District declined to follow Elser and was instead persuaded by the concurring opinion in the later Fifth District case of Kawsar. There, Judge Eisnaugle wrote that he agreed that the panel was bound by Elser, but that in his view Elser was wrongly decided. 369 So. 3d at 1229 (Eisnaugle, J., concurring). "Agreeing with his well-reasoned analysis," the Sixth District expressly adopted the view that "to preserve an argument, a party must make a timely, contemporaneous objection at the time of the alleged error." Melrose Ventures, 2025 Fla. App. LEXIS 5712 at *5-6 (cleaned up).
The Sixth District's opinion notes, however, that its reasoning regarding preservation "does not apply when a trial court grants a motion for rehearing and then rejects a new argument on its merits." Id. at *5 n.3. "In such a case, the trial court has exercised its discretion to grant rehearing and consider the newly raised argument." Id. (citing Crocker v. Crocker, 370 So. 3d 363, 365 (Fla. 5th DCA 2023)). It also does not apply to issues that could not have been raised before rehearing, such as when an error appears for the first time on the face of the order. Id. And, indeed, Rule 1.530 mandates that the failure of a trial court to make required findings of fact in the final judgment must be raised in a motion for rehearing for a party to preserve such a challenge on appeal.
Of course, a trial court has broad discretion to consider and address arguments that are raised for the first time in a motion for rehearing. A trial court may decide to do so, for example, to prevent what it would consider an injustice to a party resulting from an error or omission by one of the lawyers. And, indeed, appellate courts have held in some cases that a trial court abused its discretion by not considering an issue raised for the first time on rehearing. Those cases, however, typically involve "extraordinary" or "exigent" circumstances. See Dalrymple v. Franzese, 944 So. 2d 1240 (Fla. 4th DCA 2006). In Dalrymple, for example, the appellate court held that the trial court abused its discretion in not considering the affidavit of an expert witness that was attached to a motion for rehearing where, because of Hurricane Wilma and its aftermath, the expert was unable to meet with the investigating officer and complete his investigation and affidavit before the summary judgment hearing. Id. at 1242-43. There, the trial court had also denied the plaintiff's motion for continuance and request for an additional 90 days to complete discovery.
In sum, the district in which the trial court sits will determine whether an argument raised for the first time in a motion for rehearing will be considered preserved for purposes of the appeal. As the First District does not appear to have yet decided the issue, counsel are free to argue that whichever side best serves their client in a particular case. Counsel in the Sixth, Fourth, Third or Second District who think the trial court abused its discretion in not considering an "untimely" argument should make that argument to the appellate court, though the standard of review presents an uphill battle. See Melrose Ventures, 2025 Fla. App. LEXIS 5712 at *4 (noting that appellants "made no attempt" to show the Sixth District that the trial court abused its discretion in denying the motion for rehearing).
Of course, the Florida Supreme Court could take up the issue and settle the conflict. The Fifth District could also decide, en banc, to recede from Elser if a later case presents an appropriate opportunity to do so. See BAM Trading Servs., Inc. v. State, 395 So. 3d 687, 694 (Fla. 1st DCA 2024) (Bilbrey, J., concurring) ("When faced with erroneous precedent, barring a decision from a higher court or a legislative change, we are required to consider the matter en banc before we can recede from it."). Meanwhile, the particular district in which appellate litigants find themselves will likely be determinative of whether the arguments of their trial counsel made for the first time in a motion for rehearing will be considered on appeal.
Remember that motions for rehearing directed to final orders must be filed within 15 days of the filing of the order. See Fla. R. Civ. P. 1.530(b). However, motions for reconsideration, which are directed to non-final orders, are based on the trial court's inherent authority to reconsider any of its rulings prior to entry of the final judgment and, thus, may be filed at any point prior to entry of final judgment. See Seigler v. Bell, 148 So. 3d 473, 478-79 (Fla. 5th DCA 2014).
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