MARIE BUSCEMI, APPELLANT,
v.
6060 REALTY CORPORATION, ETC., APPELLEE
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Marie Buscemi appealed an order finding that her Miami Beach property was not her homestead in 1992 and 1993. The court reversed because the trial court abused its discretion by proceeding with the homestead hearing after her attorney's motion to withdraw was filed but not yet granted, without affording Buscemi time to obtain new counsel or to appear.
The trial court abused its discretion. When counsel files a motion to withdraw prior to a hearing, the better policy is to grant the motion and continue the cause to allow the party an opportunity to obtain new counsel, particularly where the record does not show the opposing party would be prejudiced by a continuance.
[1] A trial court abuses its discretion by denying a motion to withdraw counsel and continuing a hearing when a party needs to obtain new representation.
[2] A trial court should grant a continuance when counsel withdraws and the party has not had an opportunity to secure new counsel, absent prejudice to the opposing party.
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Join FLexlaw to unlock all legal intelligence“Under the circumstances of this case, the trial court should have granted the motion to withdraw by Buscemi's attorney and then continued the hearing on the homestead issue so as to allow Buscemi an opportunity to obtain new counsel.”
States the core holding that the trial court abused its discretion by not granting the withdrawal motion and continuing the hearing.
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Join FLexlaw to unlock all legal intelligenceBuscemi, an 80-year-old woman, claimed she maintained her homestead in Miami Beach in 1992 and 1993 despite temporarily residing in Big Pine Key for p…
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PER CURIAM.
This is an appeal of an order finding that the Miami Beach property of Marie Buscemi was not her homestead in 1992 and 1993. For the following reasons, we reverse.
Buscemi, who is more than 80 years old, alleges she maintained her homestead in Miami Beach in 1992 and 1993 even though at the time she was temporarily residing in Big Pine Key, which was closer to her medical treatments in Key West.
The trial court held an evidentiary hearing on the issue on May 10, 1994. Prior to the hearing, on February 22, 1994, Buscemi’s attorney filed a motion to withdraw. The counsel cited irreconcilable differences and claimed Buscemi had obtained a new attorney who was in possession of the case file. The motion to withdraw was argued prior to the May 10 hearing to determine homestead; however, the trial court did not grant the motion until June 2, 1994. Buscemi’s then attorney was present at the homestead hearing but no other attorney for Buscemi appeared, despite the assertions in the motion to withdraw. Buscemi was not present at the homestead hearing but did submit a letter with attached affidavits to the trial court, which were not considered.
Under the circumstances of this case, the trial court should have granted the motion to withdraw by Buscemi’s attorney and then continued the hearing on the homestead issue so as to allow Buscemi an opportunity to obtain new counsel. Castle Club Corp. v. Liberty Int’l Inc., 598 So. 2d 263 (Fla. 3d DCA 1992) (court abused discretion in not granting continuance while simultaneously allowing party’s counsel to withdraw on the day of trial); Behar v. Southeast Banks Trust Co., 374 So. 2d 572, 574 (Fla. 3d DCA 1979) (“Normally, when counsel opens a hearing with a motion to withdraw, the better policy would be to grant the motion and continue the cause.... ”), cert. denied, 379 So. 2d 202 (Fla.1980); see also Castellanos v. K-Mart Store, 632 So. 2d 1057 (Fla. 3d DCA 1994); Hub Fin. Corp. v. Olmetti, 465 So. 2d 618 (Fla. 4th DCA 1985).
The record does not reflect that the defendant would have been prejudiced by allowing a continuance to obtain new counsel. Castle Club Corp., 598 So. 2d at 263; compare Behar, 374 So. 2d at 575 (trial court did not abuse discretion in refusing to grant continuance after withdrawal of counsel in light of past history of changing counsel to delay proceedings).
We reverse and remand with directions to hold a new evidentiary hearing to determine if Buscemi’s Miami Beach property was her homestead in 1992 and 1993.
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Dunker v. Calkins, 691 So. 2d 1090 (Fla. 3d DCA 1996)…which required the motion to strike as sham to be heard immediately. Under prior decisions, the trial court should have deferred action on the motion to strike as sham until plaintiffs obtained substitute counsel. See Buscemi v. 6060 Realty Corp., 654 So. 2d 197, 198 (Fla. 3d DCA 1995); Castle Club Corp. v. Liberty International, Inc., 598 So. 2d 263, 264 (Fla. 3d DCA 1992); Hub Financial Corp. v. Olmetti, 465 So. 2d 618, 619 (Fla. 4th DCA 1985); Behar v. Southeast Banks Trust Co. N.A., 374 So. 2d 572, 575…
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Roller v. Tareylyn A. Cripe-Roller, 58 So. 3d 279 (Fla. 1st DCA 2011)…CA 1994). This dismissal is without prejudice to the appellant’s right to raise the issue in a timely appeal from the final order entered in this case. See, e.g., Scott v. State, 991 So. 2d 971, 977 (Fla. 1st DCA 2008); Buscemi v. 6060 Realty Carp., 654 So. 2d 197 (Fla. 3d DCA 1995). DISMISSED. BENTON, C.J., DAVIS and THOMAS, JJ., concur.…
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Radica Harripersad v. Lake Park Gardens 1, Inc (Fla. 4th DCA 2023)…the trial court erred by allowing appellant’s counsel to withdraw at the same hearing that the court considered the motion to compel appellant to sign the settlement agreement, thus leaving appellant unrepresented. See Buscemi v. 6060 Realty Corp., 654 So. 2d 197, 198 (Fla. 3d DCA 1995). Commendably, appellee has filed a notice that it does not contest these issues. We therefore reverse and remand for further proceedings. 2 Reversed and remanded. WARNER, MAY and FORST, JJ., concur. * * * Not final until d…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Behar v. Se. Banks Tr. Co., 374 So. 2d 572 (Fla. 3d DCA 1979)
- Chapman v. Jorge Garcia, M.D., 465 So. 2d 618 (Fla. 3d DCA 1985)
- Castle Club Corp. v. Liberty Int'l, Inc., 598 So. 2d 263 (Fla. 3d DCA 1992)
- Castellanos v. K-Mart Store, 632 So. 2d 1057 (Fla. 3d DCA 1994)