IRA PETER ZIEGLER, APPELLANT,
v.
ELENA JO KLEIN, APPELLEE

Fla. 4th DCA | 1991-12-18
No. 91-1395
WARNER, POLEN and GARRETT, JJ., concur.
590 So. 2d 1066 Florida District Court of Appeal, Fourth District (1991) Positive Treatment
Cited by 46 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.

Synopsis

A husband appealed a final divorce judgment where the trial court denied his oral motion for continuance despite his documented hospitalization, heavy medication, and inability to participate. The appellate court held the trial court abused its discretion by proceeding with the final hearing without the pro se appellant's meaningful participation.


Holding

The trial court abused its discretion by denying appellant's motion for continuance. When undisputed facts show that a party's physical condition prevents fair and adequate presentation of their case, denial of a continuance is reversible error, particularly where the party is appearing pro se and their presence is imperative to present evidence.


Headnotes

[1] A trial court abuses its discretion by denying a motion for continuance when undisputed facts reveal that the physical condition of a party prevents a fair and adequate p…

[2] An oral motion for continuance may be made at trial pursuant to Florida Rule of Civil Procedure 1.460.

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Key Quotes

“when undisputed facts reveal that the physical condition of either counsel or client prevents fair and adequate presentation of a case, failure to grant a continuance is reversible error”

Establishes the legal standard that denial of continuance is reversible error when physical incapacity prevents fair case presentation

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Facts & Procedural History

The final divorce hearing was scheduled for April 16, 1991. Appellant Ziegler, appearing pro se without trial counsel, was hospitalized in traction an…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Ira Peter Ziegler appeals from a final judgment in a marriage dissolution proceeding wherein his oral motion for continuance was denied. We hold that the lower court abused its discretion by denying appellant’s oral motion for continuance.

The final hearing of the parties’ divorce was scheduled for April 16, 1991 on which date appellant, who was not represented by trial counsel, was in the hospital. At the time of the hearing, appellant requested a continuance informing the court via telephone that he was in the hospital, in traction, heavily medicated and without his paperwork and therefore unable to meaningfully participate in the proceedings either live or by telephone. The trial court denied appellant’s motion and asked him whether he wanted to listen to the hearing or hang up.

When appellant informed the court that being heavily medicated rendered him unable to comprehend the proceedings, the court terminated the telephone conversation with appellant and proceeded with the hearing and entered a final judgment dissolving the marriage and ruling on issues such as child custody, child support, and alimony. Ironically, the court’s final judgment reflects that it received the “evidence, testimony by the parties, and their respective witnesses, the argument of counsel, and Pro se arguments”. However, the record reveals no such evidence although appellant’s witness and exhibit lists reflect that he intended to present a case if given the opportunity.

Pursuant to Florida Rule of Civil Procedure 1.460 an oral motion for continuance may be made at trial. A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion the court’s decision will not be reversed on appeal. See Jackson v. State, 464 So. 2d 1181 (Fla.1985); Diaz v. Diaz, 258 So. 2d 37 (Fla. 3d DCA 1972). However, when undisputed facts reveal that the physical condition of either counsel or client prevents fair and adequate presentation of a case, failure to grant a continuance is reversible error. See e.g. Diaz, (reversible error for court to have denied counsel’s request for continuance due to illness and to continue the case and render final judgment of divorce without client or counsel’s presence at final hearing); Silverman v. Millner, 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 appellant’s telephone conversation with the court, neither appellee, appellee’s counsel, or the court, questioned appellant’s need to be hospitalized. Furthermore, appellee has failed to file a brief disputing appellant’s contention.

In the instant case, where appellant was appearing pro se, appellant’s presence was imperative to present a case. Hence, it is clear that appellant was denied his opportunity to cross examine appellee and appel-lee’s mother, the sole witnesses at the hearing, as well as being denied his opportunity to testify and present evidence on the issues of child custody, child support and alimony which the court decided. Accordingly, the trial court abused its discretion by denying appellant’s motion for continuance. The final judgment is reversed and the cause is remanded for a new trial.

WARNER, POLEN and GARRETT, JJ., concur.


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Cited By (24 total)

  • Fleming v. Fleming, 710 So. 2d 601 (Fla. 4th DCA 1998)
    …bused its discretion in denying the continuance). “A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion the court’s decision will not be reversed on appeal.” Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991); see Jean v. County Sanitation Inc., 596 So. 2d 1245, 1246-47 (Fla. 4th DCA 1992). Factors to be considered in determining whether the trial court abused its discretion in denying the motion for continuance include whether…
  • …710 So. 2d 601, 603 (Fla. 4th DCA 1998)(‘“A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion the court’s decision will not be reversed on appeal.’”)(quoting Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991)). Next, MCR attacks the final judgment’s award of possession of the leased premises to CMG, contending that such relief was beyond the scope of the pleadings. The settlement required MCR to assume the lease on the business…
  • Myers v. Siegel, 920 So. 2d 1241 (Fla. 5th DCA 2006)
    …ble Ass’n, 755 So. 2d at 829; see also Citrin v. De Venny, 833 So. 2d 871, 872 (Fla. 4th DCA 2003); SSJ Mercy Health Sys., Inc. v. Posey, 756 So. 2d 177, 179 (Fla. 4th DCA 2000); Lopez v. Lopez, 689 So. 2d 1218 (Fla. 5th DCA 1997); Ziegler v. Klein, 590 So. 2d 1066 (Fla. 4th DCA 1991). This genre of cases does not, however, establish an absolute rule of reversal when a motion for continuance based on such grounds is denied. Rather, these cases recognize that in addition to the three general factors previously…

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