By: Gabriella Lopez[1]; Edited by Assistant Editor Brian Tackenberg
Florida’s newest District Court of Appeal recently issued Melrose Ventures, LLC v. Uptempo Marketing Corp., 418 So. 3d 217 (Fla. 6th DCA 2025), which could significantly impact the standard of review applicable to arguments raised for the first time in a motion for rehearing.
Melrose revolved around a 1.530 motion for rehearing that was filed in relation to an order granting a motion to dismiss based on a mandatory, exclusive forum selection clause that required litigation in another jurisdiction. In this motion for rehearing, the eventual appellants argued, for the first time, that one of the appellants was not a party to the contract imposing the forum selection clause and that the same appellant had entered into another contract with a forum selection clause mandating litigation in Florida. The trial court denied this motion for rehearing.
On appeal, appellants sought review of the trial court’s decision to grant the motion to dismiss. The Sixth District wrote “only to explain why the second argument was unpreserved.” Id. at 218. Affirming the trial court’s decision, the appellate court determined that while the trial court had discretion to grant the 1.530 motion, in turn considering the new argument, “the trial court was not required to consider an argument that Appellants asserted for the first time in a motion for rehearing.” Id. at 219. The court seemingly relied on the contemporaneous objection rule established in Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010), to bolster its conclusion that an argument raised for the first time in a motion for rehearing is not properly preserved for appellate review. Id. at 221.
In the Melrose opinion, the Sixth District acknowledged alignment with the approach of the Second, Third, and Fourth Districts that generally arguments that are not raised until a motion for rehearing are not preserved. Id. at 220-21 (citing Ray Med. Ctr., Inc. v. Fla. Ins. Guar. Ass’n, 406 So. 3d 1086, 1088 n.2 (Fla. 3d DCA 2025); Trinchitella v. D.R.F., Inc., 584 So. 2d 35, 35 (Fla. 4th DCA 1991); School Bd. of Pinellas Cnty. v. Pinellas Cnty. Comm’n, 404 So. 2d 1178, 1178 (Fla. 2d DCA 1981)). The court further recognized and certified a conflict with the Fifth District’s approach that a new argument raised on rehearing is properly preserved. See Kawsar v. Alhamdi Grp., LLC, 369 So. 3d 1227 (Fla. 5th DCA 2023).[2] Notably, the Supreme Court of Florida was unable to review the conflict certified by the Sixth District because the notice to invoke the supreme court’s jurisdiction was not timely filed. Melrose Ventures, LLC v. Uptempo Mktg. Corp., No. SC2025-1318, 2025 WL 2502997, at *1 (Fla. Sept. 2, 2025), reinstatement denied, No. SC2025-1318, 2025 WL 2992582 (Fla. Oct. 24, 2025).
In practice, this line of cases could affect the standard of review that is applied to issues raised for the first time in a motion for rehearing. Take an issue of statutory interpretation for example. If raised in a motion or response, then again in a motion for rehearing, on appeal this issue will be reviewed under a de novo standard of review. However, if raised for the first time in a motion for rehearing, in the Second, Third, Fourth, and Sixth Districts, this issue would be disposed of under an abuse of discretion standard of review…and no one wants that (except for the appellee).
[1] Gabriella Lopez is an associate attorney in the Appellate Group at Banker Lopez Gassler P.A. Outside of work she volunteers as an attorney coach for local high school mock trial and moot court teams.
[2] While the First District analyzed the issue of discretion in detail in Fitchner v. Lifesouth Cmty. Blood Ctrs., Inc., 88 So. 3d 269 (Fla. 1st DCA 2012), it does not appear to have taken a position on the specific issue of preservation.
