CARLOS LOPEZ, APPELLANT,
v.
CARMEN LOPEZ, APPELLEE
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Carlos Lopez appeals from a trial court order enforcing a dissolution of marriage judgment that required him to receive $6,000 in escrow contingent on his ex-wife vacating the marital residence in reasonable condition. The appellate court reversed, finding that the trial court abused its discretion by denying Carlos's motion to continue the hearing without ruling on it, thereby denying him an opportunity to present his case due to his documented mental and emotional disabilities.
The court held that it was reversible error to refuse a motion to continue where a party is unavailable for mental or physical reasons that prevent fair and adequate presentation of the case, absent evidence of severe harm or prejudice to the other party. The de facto denial of Carlos's motion constituted an abuse of discretion because Carlos could not present his case due to his mental and emotional problems, and Carmen would not have been harmed by a brief delay.
[1] A trial court abuses its discretion by de facto denying a motion for continuance when a party's mental or emotional problems prevent a fair and adequate presentation of t…
[2] Denial of a motion for continuance is reversible error if a party or their counsel is unavailable for physical or mental reasons that impede the presentation of the party…
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Join FLexlaw to unlock all legal intelligence“But it is reversible error to refuse to grant a motion for continuance where a party or his counsel is unavailable for physical or mental reasons which prevent a fair and adequate presentation of the party's case.”
Establishes the legal standard that denials of continuance motions are reversible error when based on mental or physical unavailability
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Join FLexlaw to unlock all legal intelligenceCarmen Lopez sought to recover $6,000 held in escrow, representing her share of proceeds from the sale of a marital residence in Puerto Rico, conditio…
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W. SHARP, Judge.
The former husband, Carlos, appeals from an order entered on the former wife’s, Carmen’s, motion to enforce a final dissolution of marriage judgment. We reverse.
Carmen sought to receive $6,000 held in escrow by her attorney under the terms of the final judgment, which represented her share of the proceeds after the sale of a house owned by the parties in Puerto Rico. A condition to her receipt of this money was that she vacate the marital residence, leaving it in “reasonable condition.” At the time of the hearing, Carmen had vacated the resi-denee, and she testified that she had left it in reasonable condition. However, Carlos claimed that the residence was severely damaged by Carmen and extensive repairs are required to remedy the damages.
Carlos filed a motion to continue the hearing in the enforcement case three days prior to the time set. He requested a three-to four-week continuance, until after a scheduled hearing to appoint a guardian to act on his behalf could be held. Carlos suffers from emotional and mental problems, which impede his ability to participate in legal proceedings. He has a 26-year medical history of thought process and speech disorders and has apparently been diagnosed as a paranoid schizophrenic. He is also a 100-percent disabled veteran who suffers from post-traumatic stress syndrome. Since February of 1994, he has been institutionalized twice, once immediately following a court hearing and once immediately prior to a scheduled court hearing.
The trial court did not rule on Carlos’ motion,1 and Carlos did not appear at the enforcement hearing. An earlier order dated in December 1994 prohibited him from acting on his own behalf. However, Carlos did hire a court reporter to attend and transcribe the hearing. The transcript does not reveal any evidence that Carlos engaged in any previous delay tactics nor does it supply other facts which would support denial of his motion for a continuance.
The denial of a motion to continue is governed by the abuse of discretion standard. Geralds v. State, 674 So. 2d 96 (Fla.), cert. denied, — U.S. —, 117 S.Ct. 230, 136 L.Ed.2d 161 (1996). But it is reversible error to refuse to grant a motion for continuance where a party or his counsel is unavailable for physical or mental reasons which prevent a fair and adequate presentation of the party’s case. Ziegler v. Klein, 590 So. 2d 1066 (Fla. 4th DCA 1991). See also Moyer v. Moyer, 636 So. 2d 125, 126 (Fla. 4th DCA 1994). If evidence exists that some severe harm or prejudice to the other party will occur by granting the motion, it is appropriate to deny it. See generally, Huxford v. Huxford, 231 So. 2d 868 (Fla. 1st DCA 1970). But in this case, there was no showing that Carmen would have been harmed by a brief delay.
The de facto denial of Carlos’ motion to continue was an abuse of discretion in this case due to Carlos’ mental and emotional problems and his inability to appear at the hearing. As a result, he was denied the opportunity to present h|s case. A judgment or order based on such a one-sided presentation is fundamentally flawed. We therefore reverse and remand.
REVERSE and REMAND.
DAUKSCH and GOSHORN, JJ., concur. . Although the rule is that questions not presented to or ruled upon by the trial court are generally not preserved for appeal, the rule is subject to the fundamental error exception. American Home Assurance Co. v. Keller Industries, Inc., 347 So. 2d 767 (Fla. 3d DCA 1977), cert. denied, 360 So. 2d 1249 (Fla.1978). Fundamental error occurs in civil cases when the resulting order is fatally and incorrectly flawed. Wagner v. Nottingham Associates, 464 So. 2d 166 (Fla. 3d DCA), rev. denied, 475 So. 2d 696 (Fla.1985). It exists if correction is essential to the object and purpose of the proper administration of justice. Pasco County School Bd. v. Florida Public Employees Relations Comm’n, 353 So. 2d 108 (Fla. 1st DCA 1977). Because Carlos was denied the opportunity to be heard and present evidence, fundamental error exists here.
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Cited By (12 total)
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Pettry v. Pettry, 706 So. 2d 107 (Fla. 5th DCA 1998)…. Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his behalf, Vazquez v. Vazquez, 626 So. 2d 318 (Fla. 6th DCA 1993), and the denial of this right is fundamental error. See Lopez v. Lopez, 689 So. 2d 1218, 1219, n. 1. Moreover, due process requires that a party be given the opportunity to present closing argument. Strong v. Mt Dora Growers Cooperative, 495 So. 2d 1238 (Fla. 5th DCA 1986); Woodham v. Roy, 471 So. 2d 132 (Fla. 4th DCA 1985); Chalk v. S…
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Myers v. Siegel, 920 So. 2d 1241 (Fla. 5th DCA 2006)…ontinuance is reversible error.” Florida Fruit & Vegetable 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 th…
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Vollmer v. KEY Dev. Props., Inc., 966 So. 2d 1022 (Fla. 2d DCA 2007)…ce when a party or his counsel is unavailable for physical or mental reasons, which unavailability prevents fair and adequate presentation of the party’s case. A.P.D. Holdings, Inc. v. Reidel, 865 So. 2d 682, 683 (Fla. 4th DCA 2004); Lopez v. Lopez, 689 So. 2d 1218, 1219 (Fla. 5th DCA 1997); Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991); see also Thompson v. Gen. Motors Corp., 439 So. 2d 1012, 1013 (Fla. 2d DCA 1983) (holding that it was an abuse of discretion to refuse to grant continuance when…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Pasco Cnty. Sch. Bd. v. Fla. Pub. Emps. Relations Comm'n & Pasco Cnty. Classroom Teachers Ass'n, 353 So. 2d 108 (Fla. 1st DCA 1977)
- Geralds v. State, 674 So. 2d 96 (Fla. 1996)
- Am. Home Assurance Co. v. Keller Indus., Inc., 347 So. 2d 767 (Fla. 3d DCA 1977)
- Ira Peter Ziegler v. Klein, 590 So. 2d 1066 (Fla. 4th DCA 1991)
- Wagner v. Nottingham Assocs., 464 So. 2d 166 (Fla. 3d DCA 1985)
- Jere O. Huxford v. Huxford, 231 So. 2d 868 (Fla. 1st DCA 1970)
- Moyer v. Marina Moyer, 636 So. 2d 125 (Fla. 4th DCA 1994)