SAFEWAY INSURANCE COMPANY AND BRUCE D. SUTTON, APPELLANTS,
v.
DARLENE SAXON, APPELLEE
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.
In a negligence action, the defendant failed to appear on the second day of trial. The trial court denied the defense's motions for continuance and to read the defendant's deposition, and later permitted plaintiff's rebuttal argument on damages after defense counsel argued for a zero verdict. The appellate court affirmed, finding no abuse of discretion.
The trial court did not abuse its discretion in denying the continuance when the defendant's whereabouts were unknown and no sworn motion explaining the absence was filed. The court properly refused to permit use of the discovery deposition. The court did not err in allowing plaintiff's rebuttal argument on damages because defense counsel opened the door by arguing for a zero verdict.
[1] A trial court does not abuse its discretion in denying a motion for continuance when the whereabouts of a party are unknown at the time of the motion.
[2] A trial court does not err in refusing to permit the reading of a party's discovery deposition when the party is absent from trial.
Previewing 2 of 4 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“At the time the motion for continuance was initially denied, the whereabouts of the defendant were unknown and we find no abuse of discretion in the trial court denying the motion under these circumstances.”
Establishes that when a defendant's whereabouts are unknown, denial of a continuance is not an abuse of discretion.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn the second day of a jury trial in a negligence action, the defendant failed to appear. Counsel moved for a continuance, which was denied. The defen…
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.
Explore caselaw by topic → Browse Rebuttal Argument cases and more on FLexlaw
BARKDULL, Judge.
On the second day of a jury trial in a negligence action, the defendant failed to appear. Counsel moved for a continuance, which was denied. Then counsel moved the court to permit the defense to read the defendant’s pretrial deposition, which was denied. During the closing argument plaintiffs counsel did not argue damages. In closing argument, defense counsel called upon the jury to return a “zero verdict” and “not giving her a cent”. Thereafter on rebuttal, counsel for the plaintiff went into certain items of damage, over objection.
On appeal, after an adverse jury verdict, the appellant contends first, that the trial court abused its discretion in denying the motion for continuance, or in lieu thereof, permitting a reading of the defendant’s discovery deposition and second, that the trial court erred in permitting the rebuttal argument as to damages. We affirm.
At the time the motion for continuance was initially denied, the whereabouts of the defendant were unknown and we find no abuse of discretion in the trial court denying the motion under these circumstances. Kasper Instruments, Inc., v. Maurice, 394 So. 2d 1125 (Fla. 4th DCA 1981); Williams v. Gunn, 279 So. 2d 69 (Fla. 1st DCA 1973). Subsequently there was a representation made that the defendant’s absence may have been occasioned by circumstances beyond his control, however, no sworn motion to this effect was made, either during the trial or in post trial proceedings. See Vaughan v. Car Tapes, Inc., 135 Ga.App. 178, 217 S.E. 2d 436 (Ga.App.1975); Compare; Elmariah v. Associates Financial Services Corporation, 401 So. 2d 929 (Fla. 2d DCA 1981); Tri-State Systems, Inc. v. Village Outlet Stores, Inc., 135 Ga.App. 81, 217 S.E. 2d 399 (Ga.App.1975); Ellis v. Butterfield, 98 Idaho 644, 570 P. 2d 1334 (Idaho 1977).
We also find no error in the trial court refusing to permit the use of the discovery deposition. Schwind Harvesting v. Boatman, 424 So. 2d 948 (Fla. 1st DCA 1983); Fla.R.Civ.P. 1.330(a)(3).
As to the alleged improper closing argument, we find no merit in this contention. Defense counsel clearly opened the door by argument which requested the jury to return a “zero verdict” and [“not to give”] the plaintiff “a cent”.
Therefore the final judgment reviewed in this cause be and the same is hereby affirmed.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Glenna Fisher v. Perez, 947 So. 2d 648 (Fla. 3d DCA 2007)…sue here was made during trial and it was therefore proper to make the motion orally. See Fla. R. Civ. P. 1.460. At all times, Dr. Piper’s whereabouts were known and he remained willing to testify when physically able. Cf. Safeway Ins. Co. v. Saxon, 452 So. 2d 60 (Fla. 3d DCA 1984)(affirming denial of motion for continuance where the defendant’s whereabouts were unknown at the time the motion was before the trial court). There is no suggestion in the record that defense counsel attempted to hide or misrepres…
-
Sandoval v. Lieff, 705 So. 2d 717 (Fla. 3d DCA 1998)…URIAM. Affirmed. See Hannewacker v. City of Jacksonville Beach, 419 So. 2d 308 (Fla.1982); Adamo v. Manatee Condo., Inc., 548 So. 2d 287 (Fla. 3d DCA 1989); Trees v. K-Mart Corp., 467 So. 2d 401 (Fla. 4th DCA 1985); Safeway Insurance Co. v. Saxon, 452 So. 2d 60 (Fla. 3d DCA 1984).…
Authorities Cited
- Kasper Instruments, Inc. v. Maurice, 394 So. 2d 1125 (Fla. 4th DCA 1981)
- Zeke Williams et ux. v. Gunn, 279 So. 2d 69 (Fla. 1st DCA 1973)
- Ahmed M. Elmariah v. Assocs. Fin. Servs. Corp., 401 So. 2d 929 (Fla. 2d DCA 1981)
- Schwind Harvesting & Fla. Farm Bureau Ins. Co. v. Eligia Boatman, 424 So. 2d 948 (Fla. 1st DCA 1983)