FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

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Case No. 5D21-3172

LT Case No. 2021-10976-CODL

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ABU KAWSAR, ANTHONY 

KARDRIU, AND LAMIKA

VISHKUIRTI,

Appellants,

v.

ALHAMDI GROUP, LLC,

Appellee.

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On appeal from the County Court for Volusia County.

Angela A. Dempsey, Judge.

Tanner Andrews, of Tanner Andrews, P.A., 

DeLand, for Appellants.

David E. Borack, of Borack Law Group, P.A., 

Longwood, for Appellee.

August 31, 2023

PER CURIAM.
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Abu Kawsar, Anthony Kardriu, and Lamika Vishkuirti 

(Appellants) appeal a final summary judgment entered in favor of 

Alhamdi Group, LLC (Appellee) in this breach of commercial lease 

case. We reverse the summary judgment as to lost business 

revenue but otherwise affirm.

In its motion for summary judgment and accompanying 

evidence, Appellee alleged that Appellants breached their 

commercial lease, and that Appellee was entitled to certain 

damages, including “lost business revenue” of $2,070. Appellants 

filed a memorandum in opposition to summary judgment but failed 

to raise any argument concerning Appellee’s claim for lost business 

revenue. 

The trial court ultimately rendered final summary judgment 

in favor of Appellee, and Appellants filed a motion for rehearing 

where they argued, for the first time, that the summary judgment 

evidence failed to sufficiently establish the amount of lost business 

revenues. The trial court denied the motion for rehearing.

On appeal, Appellee argues that Appellants failed to preserve 

this argument below. Although Appellants could have made this 

argument during the summary judgment proceedings, we are 

bound by our decision in Elser v. Law Offices of James M. Russ,

P.A., 679 So. 2d 309, 312 (Fla. 5th DCA 1996). In that case, we 

determined that a party could preserve an argument in opposition 

to summary judgment by raising it for the first time on rehearing. 

Id. In so doing, we expressly declined to follow the contrary

decisions in Trinchitella v. D.R.F., Inc., 584 So. 2d 35 (Fla. 4th 

DCA 1991), and School Board of Pinellas County v. Pinellas

County Commission, 404 So. 2d 1178, 1178 (Fla. 2d DCA 1981). 

See also High Definition Mobile MRI, Inc. v. State Farm Mut. Auto.

Ins. Co., 321 So. 3d 818, 824 (Fla. 4th DCA 2021). As required by 

Elser then, we must consider this argument preserved.

Having preserved this argument, at least in light of Elser, we 

conclude that the summary judgment was improper as to the 

award of damages for “lost business revenue” because Appellee’s 

affidavit was conclusory as to this item. See Katz Deli of Aventura, 

Inc. v. Waterways Plaza, LLC, 183 So. 3d 374, 382 (Fla. 3d DCA 

2013) (“Lost profits must be established with a reasonable degree 
3

of certainty and must be a natural consequence of the wrong.”

(citation omitted)); Sampley Enters., Inc. v. Laurilla, 404 So. 2d 

841, 842 (Fla. 5th DCA 1981) (“[A]n award of lost profits must be 

supported by evidence.”). We therefore reverse the summary 

judgment as to the award of lost business revenue and certify 

conflict with Trinchitella, School Board of Pinellas County, and

High Definition Mobile MRI.

We otherwise reject Appellants’ arguments and affirm.

 AFFIRMED in part, REVERSED in part, and REMANDED;

CONFLICT CERTIFIED. 

EDWARDS, C.J., and WALLIS, J., concur.

EISNAUGLE, J., concurring specially, with opinion.
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Case No. 5D21-3172

LT Case No. 2021-10976-CODL

EISNAUGLE, J., concurring specially.

I agree that we are bound by Elser v. Law Offices of James

M. Russ, P.A., 679 So. 2d 309, 312 (Fla. 5th DCA 1996) and 

therefore must reverse the award for “lost business revenue.” 

However, in my view, Elser was wrongly decided. Therefore, were 

it not for Elser, I would affirm because this argument was not 

properly preserved. 

Our supreme court has identified three requirements to 

properly preserve a legal argument for review. “First, the party 

must make a timely, contemporaneous objection at the time of the 

alleged error.” Aills v. Boemi, 29 So. 3d 1105, 1108 (Fla. 2010). 

“Second, the party must state a legal ground for that objection.” 

Id. “Third, ‘[i]n order for an argument to be cognizable on appeal, 

it must be the specific contention asserted as legal ground for the 

objection, exception, or motion below.’” Id. (citation omitted); see

also Sunset Harbour Condo. Ass’n v. Robbins, 914 So. 2d 925, 928 

(Fla. 2005) (“In order to be preserved for further review by a higher 

court, an issue must be presented to the lower court and the 

specific legal argument or ground to be argued on appeal or review 

must be part of that presentation if it is to be considered 

preserved.” (quoting Tillman v. State, 471 So. 2d 32, 35 (Fla. 

1985))).

Given that an argument must be raised timely and 

contemporaneously, the general rule is that an appellate court 

“cannot consider [an] issue[] raised for the first time in a motion 

for rehearing in the trial court.” Trinchitella v. D.R.F., Inc., 584 

So. 2d 35, 35 (Fla. 4th DCA 1991) (applying the rule to an

argument made on rehearing in opposition to a motion to compel

arbitration); accord High Definition Mobile MRI, Inc. v. State

Farm Mut. Auto. Ins. Co., 321 So. 3d 818, 824 (Fla. 4th DCA 2021)

(concluding that an argument is not preserved when raised for the

first time “after the trial court had already granted the motion for 

summary judgment and entered a final judgment”); Sch. Bd. of

Pinellas Cnty. v. Pinellas Cnty. Comm’n, 404 So. 2d 1178, 1178 

(Fla. 2d DCA 1981). But see Williams v. Williams, 152 So. 3d 702, 
5

704 (Fla. 1st DCA 2014) (“[W]here an error by the court appears 

for the first time on the face of a final order, a party must alert the 

court of the error via a motion for rehearing or some other 

appropriate motion in order to preserve it for appeal.”).1 

In this case, Appellants’ argument was not timely and

contemporaneous. Indeed, the motion for summary judgment

clearly sought damages for lost profits, and the affidavit alleged

the specific amount incurred. While the affidavit is conclusory and

therefore insufficient, Appellants could have, and should have,

pointed out this deficiency before rendition of the final summary 

judgment.

In my view, Elser is incorrect because it fails to consider the 

first requirement of preservation—a timely and contemporaneous 

objection at the time of the error. In Elser, we reasoned: 

In our view, the order granting a motion 

for summary judgment is not final until 

the motion for rehearing is considered and 

disposed. Until then, a trial judge is free 

to consider any legal error or matter 

overlooked relating to the entry of the 

summary judgment. Indeed, that is the 

very purpose of a motion for rehearing.

679 So. 2d at 312.

It is true that a “summary judgment is not final until the 

motion for rehearing is considered and disposed,” and I agree that 

a trial court has considerable discretion to open a judgment on 

rehearing. See Fla. R. Civ. P. 1.530(a). But while a motion for 

rehearing gives the trial court, in some sense, an opportunity to 

consider an argument raised for the first time, such a procedure 

does not give the trial court a timely and contemporaneous

1 I agree that we should certify conflict because I find no 

meaningful way to distinguish our decision today from 

Trinchitella, School Board of Pinellas County, and High Definition

Mobile MRI.
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opportunity to do so. In other words, even if the motion for 

rehearing technically fulfills the second and third requirements on 

preservation, it does not satisfy the first. See Aills, 29 So. 3d at

1108.

This case illustrates two ways in which an argument raised 

for the first time on rehearing is generally not timely and 

contemporaneous. First, the legal landscape is entirely different on 

rehearing than during summary judgment proceedings. Before 

rendition of summary judgment, the movant has the initial burden, 

and the trial court must either grant or deny the motion as a matter 

of law. See Fla. R. Civ. P. 1.510(a) (“The court shall grant summary 

judgment if the movant shows that there is no genuine dispute as 

to any material fact and the movant is entitled to judgment as a 

matter of law.” (emphasis added)). However, after rendition of 

summary judgment, the burden not only shifts to the party moving 

for rehearing, but the trial court also has substantial discretion.2 

See Villas at Laguna Bay Condo. Ass’n v. CitiMortgage, Inc., 190 

So. 3d 200, 202 (Fla. 5th DCA 2016) (holding that the trial court 

abused its discretion in denying motion for rehearing without an 

evidentiary hearing where the motion “was supported by an 

affidavit from its counsel establishing colorable grounds that 

excusable neglect occurred”); Coffman Realty, Inc. v. Tosohatchee

Game Pres., Inc., 381 So. 2d 1164, 1167 (Fla. 5th DCA 1980), 

opinion approved of, 413 So. 2d 1 (Fla. 1982) (“[I]t is not an abuse 

of discretion for a trial judge to hold that an affidavit filed with a 

petition for rehearing is too late.”); see also Dalrymple v. Franzese, 

944 So. 2d 1240, 1242 (Fla. 4th DCA 2006) (denial of motion for 

rehearing that attached accident reconstruction expert’s affidavit 

was abuse of discretion where nonmovant was unable to timely file 

opposing expert’s affidavit; “because of Hurricane Wilma and its 

aftermath, [expert] was unable to meet with the investigating 

2 Appellants do not raise the separate argument on appeal 

that the trial court abused its discretion in denying the motion for 

rehearing. See Villas at Laguna Bay, 190 So. 3d at 202. Instead, 

Appellants’ argument is that we should reverse the entry of 

summary judgment as a matter of law. These are two 

substantively different arguments.
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officer and complete his investigation and affidavit before the 

hearing”). For this reason, an argument that might have been a 

winner before rendition of summary judgment does not necessarily 

end the inquiry after a case proceeds to rehearing.

Second, the untimely nature of Appellants’ argument is 

especially clear given the time requirements of the summary 

judgment rule. Our supreme court has carefully adopted a 

procedure for efficiently disposing of appropriate cases by 

summary judgment, including specific timeframes. See Fla. R. Civ. 

P. 1.510. But in the fifth district, a party can simply stand silent 

in the face of a deficient motion or affidavit, safely knowing that 

Elser will compel the trial court to grant rehearing and start all 

over. This opportunity for gamesmanship is inconsistent with the 

rule on preservation and can thwart the time requirements of rule 

1.510(b)–(c).

3 Cf. Millar Elevator Serv. Co. v. McGowan, 819 So. 

2d 145, 153 (Fla. 2d DCA 2002) (observing in the context of a jury 

trial that the preservation requirement “also promotes judicial 

economy and prevents ‘a party from rolling the dice with the jury, 

confident that an unvoiced objection will garner a new trial if the 

verdict is unfavorable’” (quoting Lowe Inv. Corp. v. Clemente, 685 

So. 2d 84, 85 (Fla. 2d DCA 1996))).

4

In sum, Appellants’ argument could have, and should have, 

been raised before rendition of the final summary judgment. Were 

it not for Elser, I would affirm.

3 For this reason, I would also certify a question of great public 

importance.

4 Appellants argue “[s]ummary judgment is meant as a trial 

substitute, so that Fla. R. Civ. P. 1.530(e) should serve the same 

purpose as following trial.” In essence, Appellants invite this court 

to add the words “or after rendition of summary final judgment” to 

rule 1.530(e). I reject this argument because it conflicts with the 

plain language of the rule. See Fla. R. Civ. P. 1.530(e).
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Not final until disposition of any timely and 

authorized motion under Fla. R. App. P. 9.330 or 

9.331.

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