BRIAN LEJEUNE
v.
HERNANDO FAJARDO
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Brian Lejeune appeals the trial court's default judgment in favor of Hernando Fajardo in a tenant waste claim. The appellate court affirmed the judgment, finding that Lejeune's counsel failed to appear for trial without good cause and that the denial of the continuance motion was not an abuse of discretion.
The trial court did not abuse its discretion. The motion for continuance lacked good cause, failed to comply with Florida procedural rules requiring signature by the appellant, and did not demonstrate that counsel or the appellant could not appear or that meritorious defenses required counsel's presence in a straightforward case.
[1] A motion for continuance is properly denied when counsel's scheduling conflict arises from inattention to his calendar.
[2] A motion for continuance must demonstrate good cause, such as a prior unavoidable commitment or a physical or mental inability to appear.
Previewing 2 of 6 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“The problem resulted from counsel's inattention to his schedule.”
The court found that the conflict arose from counsel's failure to manage his calendar rather than unavoidable circumstances.
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Join FLexlaw to unlock all legal intelligenceThe parties scheduled trial for November 12, 2009. On November 10, 2009, Lejeune's counsel discovered a conflict with a probation violation hearing sc…
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Before POWELL, STRICKLAND, LEBLANC, J.J.
PER CURIAM.
FINAL ORDER AFFIRMING TRIAL COURT
Appellant Brian Lejeune timely appeals from the trial court’s final judgment, rendered November 12, 2009, awarding damages in favor of Appellee Hernando Fajardo. The Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(c)(1)(A). The Court dispenses with oral argument pursuant to Florida Rule of Appellate Procedure 9.320. The parties appeared for a pre-trial scheduling conference on Tuesday, September 29, 2009, at which time the trial below was scheduled for Thursday, November 12, 2009, at 1:30 p.m. Sometime on Tuesday, November 10, 2009, Appellant’s counsel discovered that the trial conflicted with a violation of probation hearing he was scheduled to attend in Lake County. The trial court received a faxed motion for continuance from Appellant’s counsel the morning of Wednesday, November 11, 2009. The trial court was closed on Wednesday, November 11, 2009, in observance of Veteran’s Day. The trial judge’s assistant advised counsel that a continuance would be granted if Appellee agreed. Appellee did not agree to a continuance. Counsel, Appellant, and Appellant’s witness failed to appear for trial. The trial court proceeded and entered a final judgment after Appellee presented his evidence. This appeal followed. Appellant’s motion for continuance did not show good cause. The issue below was not a case where counsel was stuck in a trial or hearing which carried over to the next day, nor was it a case where counsel was physically or mentally unable to appear. The problem resulted from counsel’s inattention to his schedule. The Court further notes that the motion for continuance was not signed by Appellant as required by Florida Rule of Civil Procedure 1.460. The motion does not state that counsel attempted to get the Lake County judge to reset the violation of probation hearing, or, failing that, to get another attorney to cover either this trial or the violation of probation hearing. Moreover, the motion does not describe a meritorious defense necessitating an attorney’s appearance, as opposed to Appellant and his witness simply attending the trial and giving their testimony, particularly, since Appellee represented himself pro se in the simple and straight-forward tenant waste claim. See Maistrosky v. Harvey, 133 So. 2d 103 (Fla. 2d DCA 1961). The test is whether there was a clear showing that the denial of the motion for continuance was a palpable abuse of discretion. Id. This Court finds that the test has not been met in the instant case. Based on the foregoing, it is hereby ORDERED AND ADJUDGED that the Final Judgment, rendered November 12, 2009, is AFFIRMED. DONE and ORDERED at Orlando, Florida this ___28__day _______September____,
2010.
/s/
ROM W. POWELL Senior Circuit Judge
/s/
/s/
STAN STRICKLAND
BOB LEBLANC Circuit Judge
Circuit Judge
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing order was furnished via U.S. mail on this 29 day of September , 2010, to the following: Frank P. Remsen, Esquire, 2301 Lucien Way, Suite 323, Maitland, Florida 32751 and Hernando Fajardo, 500 Trinity Lane North, Apt. # 11308, St. Petersburg, Florida 33716.
/s/
Judicial Assistant