OUTDOOR RESORTS AT ORLANDO, INC., A CONDOMINIUM ASSOCIATION, PETITIONER,
v.
HOTZ MANAGEMENT COMPANY, INC., RESPONDENT
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Outdoor Resorts sought a writ of certiorari to overturn the trial court's denial of a motion for continuance based on the unavailability of a key witness undergoing surgery for lung and throat cancer. The appellate court granted the petition, finding that the witness's critical role and serious medical condition constituted extraordinary circumstances warranting postponement of trial.
The appellate court granted the petition for writ of certiorari and ordered a stay of the non-jury trial for eight weeks to allow for Welsing's recovery or the procurement of his testimony through deposition. The court concluded that the combination of Welsing's critical role in the case and the severity of his medical condition constituted extraordinary circumstances justifying postponement.
[1] A trial court's decision on a motion for continuance is generally within its discretion and will not be disturbed absent an abuse of discretion.
[2] An appellate court may grant a writ of certiorari to review an order denying a motion for continuance when the risk of injustice outweighs the policy of deferring to the…
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Join FLexlaw to unlock all legal intelligence“the risk of an injustice occurring by putting the petitioner to trial without the testimony of Mr. Welsing outweighs our policy of not interfering with the trial court's scheduling of cases to be tried”
Establishes the court's balancing test favoring postponement when witness testimony is essential
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Join FLexlaw to unlock all legal intelligenceOutdoor Resorts At Orlando, Inc., a condominium association, terminated Hotz Management Company's services, giving rise to a breach of contract action…
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FRANK, Judge.
On August 23, 1985, Outdoor Resorts At Orlando, Inc., the defendant/counterclaimant below, filed a petition for writ of certiorari seeking relief from an order dated August 23, 1985, entered by the trial court denying its motion for a continuance of the trial scheduled to begin on August 29, 1985. Because of the shortness of time between the filing of the petition and the announced trial date, for us to have followed the procedures provided in Rule 9.100 of the Florida Rules of Appellate Procedure would have resulted in granting the very relief sought in the petition.
Thus, following our initial consideration of the petition, facially suggesting that the motion for continuance of the trial was predicated upon a meritorious ground — the unavailability of a witness, Mr. Welsing, for a period of eight weeks due to the removal of a cancerous lung and throat surgery — we deemed it appropriate to communicate telephonically with counsel for the parties in a conference call.1 Such call occurred and counsel presented their respective positions. Based upon the petition, the documents contained in the appendix accompanying it and the matters asserted in the telephonically conducted hearing, we determined that Mr. Welsing’s unavailability arising from hospitalization on August 12, 1985, and extensive surgery on August 19, 1985, when coupled with his role in the factual matters underlying this litigation, warranted deferral of the trial for a period of eight weeks. In granting the petition, we emphasized to the parties’ attorneys that our order staying the non-jury trial was not to foreclose scheduled commencement of the trial with the absent witness’s testimony being offered in a deposition at a later time if such an agreement could be reached and concurred in by the trial court.
In determining to grant the petition, we have not ignored the principles that the granting or denying of a motion for continuance is customarily within the discretion of the trial court and this court will refrain from substituting its judgment for that of the lower court absent an abuse of discretion. Thompson v. General Motors Corp., Inc., 439 So. 2d 1012 (Fla. 2d DCA 1983); Higgins v. Johnson, 422 So. 2d 16 (Fla. 2d DCA 1982).
In the matter at hand, we have concluded, in the face of the unrefuted representations contained in the petitioner’s motion and amended motion for continuance, that the risk of an injustice occurring by putting the petitioner to trial without the testimony of Mr. Welsing outweighs our policy of not interfering with the trial court’s scheduling of cases to be tried.
The record before us discloses that Mr. Welsing is a member of the petitioner’s board of directors and serves as its treasurer; that upon the petitioner’s termination of the respondent’s services, an event generating this bx’each of contract action, it was Mr. Welsing who assumed the management responsibility theretofore performed by the respondent and thus it further appears that Mr. Welsing is the witness who is most able to testify to the subsidiary facts associated with the claim asserted against the respondent, the petitioner’s counterclaim and the damages allegedly sustained by the petitioner. We acknowledge that normally the petitioner, were it not to prevail upon the trial, would be able to raise in a plenary appeal the question of whether it was prejudiced by the trial court’s denial of the motion for continuance. Here, however, a balancing of interests has led us to conclude there is a greater likelihood of detriment to the petitioner if we were to deny the petition than will be imposed upon the respondent by our finding it meritorious. Any inconvenience to the respondent is overshadowed by the severity of the burden the petitioner would be required to meet if the question now before us were to await the appeal stage.
In sum, our assessment of the nature and seriousness of Mr. Welsing’s illness and the relevancy of his testimony point up extraordinary circumstances justifying postponement of the trial for a reasonable period; a period to be determined by Mr. Welsing’s ability either to testify at trial or to be deposed in order that his testimony can be procured, preserved and used as substantive evidence.
The petition for writ of certiorari is granted.
GRIMES, A.C.J., and SCHEB, J., concur. . See Fla.R.Jud.Admin. 2.071.
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Ralfe O.P. Silverman, Jr. v. Millner, 514 So. 2d 77 (Fla. 3d DCA 1987)…utweighs its policy of not disturbing a trial court’s ruling on a continuance, Ford v. Ford, 150 Fla. 717, 8 So. 2d 495 (1942); Courtney v. Central Trust Co., 112 Fla. 298, 150 So. 276 (1933); Outdoor Resorts At Orlando, Inc. v. Hotz Management Co., 483 So. 2d 2 (Fla. 2d DCA 1985), in particular, in cases where the opposing party would suffer no injury or great inconvenience as a result of a continuance.1 Ford, 8 So. 2d at 496. [*79] In the case under review, Silverman’s attorney, confronted with the sudden…
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Manor Care OF Dunedin, Inc. v. Keiser, 611 So. 2d 1305 (Fla. 2d DCA 1992)…o mount an adequate defense. A handful of cases do find "irreparable injury" in such situations even where the error complained of might be remediable on plenary appeal. See particularly Outdoor Resorts at Orlando, Inc. v. Hotz Management Co., Inc., 483 So. 2d 2 (Fla. 2d DCA1985), involving the denial of a continuance needed to accommodate a material witness. See also Thompson v. General Motors Corp., Inc., 439 So. 2d 1012 (Fla. 2d DCA1983). Finally, it is suggested that "[t]he attorneys practicing in this…
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State v. Antonucci, 590 So. 2d 998 (Fla. 5th DCA 1991)…nuance is customarily within the discretion of the trial court, and that this court will substitute its judgment for the trial court only where there has been an abuse of discretion. See Outdoor Resorts at Orlando, Inc. v. Hotz Management Co., Inc., 483 So. 2d 2 (Fla. 2d DCA 1985). The petitioner also asks that if we grant the petition we order the tolling of the respondent’s speedy trial time until the next pretrial hearing in the criminal case. This is a matter which should be raised in the trial court.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Thompson v. Gen. Motors Corp., Inc., 439 So. 2d 1012 (Fla. 2d DCA 1983)
- Higgins v. Johnson, 422 So. 2d 16 (Fla. 2d DCA 1982)