Motions for Reconsideration – A Florida Lawyer’s Last Resort

Sometimes courts issue legally wrong opinions.  In such circumstances, should the law be specific, motions for reconsideration can help parties to correct the record?
The proper standard of review for a Court when considering a motion to reconsider is outlined in Prudential Securities, Inc. v. Emerson, 919 F.Supp. 415 (M.D.Fla.1996). The court in Prudential held that “[a] Court will not alter a prior decision absent a showing of a clear and obvious error where ‘the interests of justice’ demand correction.” Id. at 417 (quoting American Home Assurance Co. v. Glenn Estess & Associates, Inc., 763 F.2d 1237, 1239 (11th Cir.1985)). Moreover, the refusal to grant relief in a motion for reconsideration is reviewed by the appellate court under an abuse of discretion standard. See Hancock v. City of Okla. City, 857 F.2d 1394, 1395 (10th Cir.1988).
By way of example, the following request for reconsideration was filed in an unemployment matter and available to everyone pursuant to Florida’s Sunshine Act:

I am writing to appeal and for reconsideration of the Decision rendered in the above-referenced matter. The Determination claims that “failure to report to work or inform the employer of the reason for [claimant’s] absence was a conscious disregard of the employer’s interests and is found to be deliberate disregard”, etc. – citing subsection (a) of the statute. The basis of this determination was ONE missed day of work and failed to tell her employer that she had a death in the family!

The remainder of subsection (a) provides examples of what constitutes a “conscious disregard of the employer’s interests.” It includes damage to the employer’s business and theft. It is not a catch-all provision. Thus, that section was misapplied by the hearing officer and is inapplicable to a situation where an employee misses ONE day of work, and her ONLY failing was failing to inform her employer that the absence was due to a death.

Finally, subsection (a) was not the basis of the employer’s appeal. Thus, the Hearing Officer was improper to rely upon that provision and did not have jurisdiction over such a claim.

Courts have considerable discretion to reconsider an order. Johnston v. Tampa Sports Authority, 442 F.Supp.2d 1257, 1261 (M.D.Fla.2006) (citing O’Neal v. Kennamer, 958 F.2d 1044, 1047 (11th Cir.1992)). The trial court abuses its discretion if it overlooks a relevant factor that deserves significant weight. Sussman v. Salem, Saxon & Nielsen, P.A., 153 F.R.D. 689, 694 (M.D.Fla.1994). The trial court also abuses its discretion if it considers all relevant factors, but commits a “palpable error of judgment in calibrating the decisional scales.” Id. (citing U.S. v. Hastings, 847 F.2d 920, 924 (1st Cir.1988), cert. denied, 488 U.S. 925, 109 S.Ct. 308, 102 L.Ed.2d 327 (1988)).  The following was written in a different motion:

Further, O.C.G.A. § 5-6-48 provides minimal grounds in which an appeal can be dismissed. Under O.C.G.A. § 5-6-48(b)(3), no appeal shall be dismissed or its validity affected for any cause, nor shall consideration of any enumerated error be refused, except for failure to file a timely notice of appeal, where the decision or judgment is not then appealable, or were the questions presented have become moot. In addition, O.C.G.A. § 5-6-48(c) permits the trial court to dismiss the appeal, after notice and opportunity for hearing, only where there has been an unreasonable delay in the filing of the transcript, and it is shown that the delay was inexcusable and was caused by such party, or when there has been an unreasonable delay in transmission of the record to the appellate court. Clearly, none of these grounds applies to this case.

Give the above, should you find that you are litigating a case and need to file a motion for reconsideration, hire an experienced lawyer immediately.  Should you wait too long, your rights for reconsideration or for an appeal could be forever barred.


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