ROGER THOMPSON, PETITIONER,
v.
GENERAL MOTORS CORPORATION, INC., A FOREIGN CORPORATION, AND VAL WARD CADILLAC, INC., A FLORIDA CORPORATION, RESPONDENTS

Fla. 2d DCA | 1983-10-31
No. 83-2245
SCHEB and CAMPBELL, JJ., concur.
439 So. 2d 1012 Florida District Court of Appeal, Second District (1983) Positive Treatment
Cited by 36 cases

AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.


Holding

The trial court abused its discretion by denying a continuance based on counsel's serious medical condition, especially when the lost deposition tape was irrelevant to the health issue.


Headnotes

[1] A trial court has broad discretion in granting or denying a motion for continuance, but this discretion is not unlimited and may be abused.

[2] Denying a motion for continuance based on counsel's recent, serious illness, supported by medical evidence, may constitute an abuse of discretion, especially when new cou…

Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.

Join FLexlaw to unlock all legal intelligence

Facts & Procedural History

Petitioner's counsel moved for a continuance due to severe cardiovascular complications, supported by a doctor's letter recommending avoidance of stre…

The full statement of facts, procedural history, and disposition for this case are member content.

Join FLexlaw to unlock all legal intelligence

© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.


Opinion of the Court
GRIMES, Acting Chief Judge.

GRIMES, Acting Chief Judge.

This is a petition for certiorari to review an order denying a motion for continuance of the trial.

Petitioner is suing respondents for damages arising out of an automobile accident. The trial has already been postponed twice upon stipulation. Each party has been represented by at least two different lawyers. On October 20, 1983, petitioner’s counsel, Michael R. Glickstein, who is a single practitioner, filed a motion for continuance of the trial scheduled for November 1, 1983, on grounds of his ill health. He attached to his motion a letter from his doctor reciting that he had been under the doctor’s care since August 12, 1983, for possible cardiovascular complications. The doctor stated that on October 18, 1983, he was called to the hospital emergency room to examine Glickstein for extreme pain in the upper abdomen. At that time Glickstein exhibited a suggestively abnormal EKG. The doctor later ruled out a myocardial infarction but indicated that there was evidence that his patient had coronary disease. The doctor expressed the opinion that for Glickstein to undergo the concentrated stress of conducting a trial at this time “represents a significant medical risk to his health.” He recommended that Glickstein not become engaged in stressful activities for at least four months.

At the hearing held on October 24, 1983, the court recognized the need to conclude this protracted litigation. Nevertheless, the court at first indicated its intention to grant the continuance. At this point a court reporter entered the room and stated that the tape containing her stenographic notes of petitioner’s recently taken supplementary deposition had been stolen. She stated that she had left her notes in the room occupied by petitioner and his counsel and that upon her return the notes were gone. Mr. Glickstein vehemently denied taking the notes. The court then reconsidered the question of continuance, and after noting that his initial decision to continue the case was close, stated that “this sort of thing tips the scale.” The order denying continuance referred to a telephone conversation between the judge and Glickstein’s doctor in which the doctor’s statements concerning counsel’s health were said to be “substantially in accord with his letter.”

The trial court has broad discretion in granting or denying a continuance. Edwards v. Pratt, 335 So. 2d 597 (Fla. 3d DCA 1976); Williams v. Gunn, 279 So. 2d 69 (Fla. 1st DCA 1973). Yet, there are instances in which a trial court’s denial of a motion for continuance may be an abuse of discretion. In Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276 (1933), the supreme court held that it was an abuse of discretion to deny a motion for continuance on grounds that the defendant’s attorney would not have been able to adequately prepare for trial due to his wife’s illness. Likewise, in Diaz v. Diaz, 258 So. 2d 37 (Fla. 3d DCA 1972), the court held that it was an abuse of discretion to refuse to continue a final hearing by reason of the sudden illness of counsel for one of the parties the day before.

The medical opinion concerning Glick-stein’s risk in going forward with the trial was not disputed. The illness was of recent origin. New counsel could not possibly become prepared to try a case of this magnitude by the time of its scheduled date. Respondent made no showing of prejudice other than that normally incident to trial delay. The matter concerning the lost reporter’s notes was not relevant to the decision of whether to postpone the trial because of Glickstein’s health.

While we are loath to interfere with trial scheduling, we hold that the trial court departed from the essential requirements of law in refusing to grant the continuance. We cannot be certain that petitioner would have an adequate remedy by way of appeal because if petitioner’s counsel decided to proceed with the trial, he might do a less than adequate job because of his medical condition. Of course, the trial cannot be stayed indefinitely pending Glickstein’s recovery. The court should reset the trial sufficiently distant that if it appears that Glickstein’s health will not permit him to participate, there would still be time for petitioner to retain substitute counsel. Nothing herein will preclude the court from taking appropriate action with respect to the missing reporter’s notes.

We grant the petition for certiorari, quash the order denying continuance, and remand with directions that the trial be continued for a reasonable length of time.

SCHEB and CAMPBELL, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By (18 total)

  • Ira Peter Ziegler v. Klein, 590 So. 2d 1066 (Fla. 4th DCA 1991)
    …, 514 So. 2d 77 (Fla. 3d DCA 1987) (abuse of discretion in denying motion for continuance where defendant suffered a stroke and his testimony was necessary for a fair and adequate presentation of his case). See also Thompson v. General Motors Corp., 439 So. 2d 1012 (Fla. 2d DCA 1983). There is nothing in the record to suggest that appellant’s hospitalization was fabricated as appellant has documented the existence of his spinal disability throughout the litigation. Moreover, the record reveals that during app…
  • Jackson v. State, 464 So. 2d 1181 (Fla. 1985)
    …er, that when the unre-futed facts establish that the physical condition of a trial attorney prevents the attorney from adequately representing his client, the failure to grant a continuance is reversible error. See Thompson v. General Motors Corp., 439 So. 2d 1012 (Fla. 2d DCA 1983); Palmer v. State, 380 So. 2d 476 (Fla. 2d DCA 1980); Diaz v. Diaz, 258 So. 2d 37 (Fla. 3d DCA 1972); see also Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276 (1933)(serious illness of attorney’s wife). The record in this…
  • Vollmer v. KEY Dev. Props., Inc., 966 So. 2d 1022 (Fla. 2d DCA 2007)
    …e party’s case. A.P.D. Holdings, Inc. v. Reidel, 865 So. 2d 682, 683 (Fla. 4th DCA 2004); Lopez v. Lopez, 689 So. 2d 1218, 1219 (Fla. 5th DCA 1997); Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991); see also Thompson v. Gen. Motors Corp., 439 So. 2d 1012, 1013 (Fla. 2d DCA 1983) (holding that it was an abuse of discretion to refuse to grant continuance when attorney’s illness prevented his appearance at trial). [*1030] Under the facts of this case, the trial court’s de facto denial of Vollmer’s moti…

Previewing 3 of 18 citing cases — full citator treatment, depth of discussion, and citing context are member features.

Join FLexlaw to unlock all legal intelligence

Authorities Cited

Full citator, related cases, and AI research tools

Open in FLexlaw