LORETTA CARPENTER, APPELLANT,
v.
MARSHALL O. CARPENTER, APPELLEE

Fla. 1st DCA | 1984-06-01
No. AU-310
ERVIN, C.J., and THOMPSON, J., concur.
451 So. 2d 914 Florida District Court of Appeal, First District (1984) Positive Treatment
Cited by 10 cases

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Synopsis

Loretta Carpenter appealed a final judgment dissolving her marriage, challenging the trial court's denial of her motion for continuance on the eve of trial. The First District Court of Appeal reversed, finding that the trial court abused its discretion by refusing to postpone trial when the husband filed an amended petition with new claims and introduced a late expert witness on financial matters without adequate discovery opportunity.


Holding

Yes. The trial court abused its discretion in denying the wife's motion for continuance. Special circumstances requiring a continuance exist where there has not been sufficient time to complete discovery and properly prepare for trial, particularly where a party injects new issues and expert witnesses shortly before trial without adequate notice or opportunity for discovery.


Headnotes

[1] A trial court abuses its discretion by denying a motion for continuance when a party has not had sufficient time to complete discovery and prepare for trial, especially w…

[2] A party seeking a continuance due to insufficient time for discovery and trial preparation may be granted such continuance if it causes no substantial prejudice or injust…

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Key Quotes

“Special circumstances, however, may require a continuance where there has not been sufficient time to complete discovery and properly prepare for trial and where the continuance causes no substantial prejudice or injustice to the opposing party.”

Establishes the legal standard for when a continuance may be required despite the trial court's discretion.

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Facts & Procedural History

The Carpenters had been married for 26 years and accumulated over $2 million in property interests. The husband filed a petition for dissolution in No…

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Opinion of the Court
ZEHMER, Judge.

ZEHMER, Judge.

Appellant, Loretta Carpenter, raises four issues on this appeal from a final judgment dissolving her marriage to appellee, Marshall 0. Carpenter. We reverse on the first issue and do not reach the remaining three issues.

This action was commenced on November 9, 1982, with appellee husband’s filing of a petition for dissolution of marriage.

In January 1983, the ease was set for trial on April 18. During their twenty-six year marriage, the parties had accumulated extensive and varied property interests claimed to exceed $2,000,000 in value, and discovery concerning these property interests was conducted with varying degrees of success.

On March 30, 1983, the wife filed a motion for continuance, asserting insufficient time to complete discovery of assets in the husband’s name. This motion was denied.

On April 6, the husband was granted leave to file an amended petition, in which he included a request for a special equity in certain marital properties. The wife was directed to answer by April 15. On the evening of April 14, the Thursday before the final hearing scheduled for the 18th, the husband notified appellant of an expert witness who would testify on his behalf and the husband’s counsel told the wife’s counsel the subject of this new expert’s testimony. On the following day, the wife filed a motion for continuance, reciting, inter alia, that she had just been made aware of appellee’s new expert witness and that she needed additional time to complete discovery and properly prepare her case for trial.

The trial court again denied her motion, and the final hearing was held, as scheduled, on April 18 and 19.

On appeal, appellant contends that the trial court abused its discretion in denying her last motion for continuance.

The record reflects a few problems by both sides in obtaining complete discovery, but considering the magnitude of the marital property involved, no critical problems became readily identifiable until after the husband, less than two weeks before trial, filed his amended petition requesting that the court recognize certain special equities in the marital property.

On March 30, the husband had responded to interrogatories and named all expert witnesses who would testify for him, and appellant’s counsel obtained discovery of such experts. One working day prior to trial, appellee identified another expert and represented that this expert would testify to certain financial matters in the range of $40,000, but the wife was unable to obtain any meaningful discovery of this witness.

At trial, the expert’s testimony was offered in support of the claimed special equities, and it varied materially from the amounts previously represented. Appellant’s counsel objected on grounds of insufficient notice and opportunity to obtain discovery, as well as misrepresentation of the witness’s testimony; but the objections were overruled, and the testimony was received in evidence. Although reciting consideration of the special equities of the parties, the final judgment did not identify the extent or amount thereof with respect to the equitable distribution made of the properties. We cannot assume that evidence on this issue received over objection was nevertheless disregarded by the trial court and had no material bearing on its decision.

We recognize that the granting of a continuance is within the sound discretion of the trial court and that its decision should not be interfered with on appeal absent an abuse of discretion. Diaz v. Diaz, 258 So. 2d 37 (Fla. 3d DCA 1972).

Special circumstances, however, may require a continuance where there has not been sufficient time to complete discovery and properly prepare for trial and where the continuance causes no substantial prejudice or injustice to the opposing party. See, Stanley v. Bellis, 311 So. 2d 393 (Fla. 4th DCA 1975).

On the record before us, we find no indication that granting the wife’s motion for continuance would have so prejudiced the husband. On the peculiar facts of this case, including the injection of new issues shortly before trial and running in a new expert witness to testify on such issue at the last minute without adequate opportunity for discovery, we conclude that the court below abused its discretion in denying appellant’s motion for continuance. The judgment is reversed and the case remanded for further proceedings.

REVERSED and REMANDED.

ERVIN, C.J., and THOMPSON, J., concur.


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Citator

Cited By

  • Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594 (Fla. 1st DCA 2007)
    …. Therefore, Florida courts have held that a judgment should not be reversed on appeal on the ground that the trial court ruled improperly on a motion for continuance, unless the ruling amounts to an abuse of discretion. See' Carpenter v. Carpenter, 451 So. 2d 914, 916 (Fla. 1st DCA 1984); Fasig v. Fasig, 830 So. 2d 839, 841 (Fla. 2d DCA 2002). A ruling On a motion for continuance is treated with a relatively high degree of deference, even among other kinds of discretionary decisions. The Florida Supreme Cou…
  • Peiman v. Peiman, 829 So. 2d 307 (Fla. 5th DCA 2002)
    …fact that one of the attorneys agreed to represent the Former Husband, but could not do so unless the case was continued, tends to demonstrate that the Former Husband was not requesting _ the continuance merely for delay. See Carpenter v. Carpenter, 451 So. 2d 914 (Fla. 1st DCA 1984) (holding that special circumstances may require a continuance where there has not been sufficient time to prepare for trial and there is no substantial prejudice to opposing party); see also Kamhi v. Waterview Towers Condo. Ass’n…
  • Bryan v. Bryan, 824 So. 2d 920 (Fla. 3d DCA 2002)
    …ear to trial without a continuance. Furthermore, the business valuation was received only five days prior to trial. Based on these circumstances, we find the denial of the continuance created an injustice for the husband. See Carpenter v. Carpenter, 451 So. 2d 914, 915 (Fla. 1st DCA 1984)(speeial circumstances may require a continuance where there has not been sufficient time to prepare for trial and there is no substantial prejudice to opposing party); see also Clayman v. Clayman, 536 So. 2d 358, 359 (Fla. 3…

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