A.P.D. HOLDINGS, INC., A FLORIDA CORPORATION, APPELLANT,
v.
GARY REIDEL, A/K/A GARY WESTCOTT AND RACHEL REIDEL, APPELLEE
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A.P.D. Holdings, Inc. appeals the trial court's order dissolving a writ of attachment against property owned by Rachel Reidel. The appellate court reversed, holding that the trial court abused its discretion by denying APD's motion to continue the hearing on the dissolution motion when APD's president, whose testimony was necessary, was unavoidably delayed in traveling to Florida.
The trial court abused its discretion in denying the motion for continuance. Under the Fleming v. Fleming factors—whether the denial creates injustice, whether the cause was unforeseeable and not dilatory, and whether the opposing party would suffer prejudice—the denial was reversible error because the continuance was necessary for the president's relevant testimony, was caused by short notice rather than dilatory practices, and would not have caused undue prejudice to the Reidels.
[1] A trial court abuses its discretion by denying a motion for continuance when a party's key witness is physically unavailable due to short notice of a hearing and their te…
[2] A party seeking a continuance must demonstrate that the denial would create an injustice, the request is not due to dilatory practices, and the opposing party would not s…
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Join FLexlaw to unlock all legal intelligence“it is reversible error to refuse to grant a motion for continuance where a party or his or her counsel is unavailable for physical or mental reasons which prevent a fair and adequate presentation of the party's case”
Establishes the legal standard for when denial of a continuance is reversible error under Florida law
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Join FLexlaw to unlock all legal intelligenceAPD filed a complaint against Gary and Rachel Reidel for breach of a lease agreement seeking approximately $20,000 in damages. APD obtained a writ of …
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HAZOURI, J.
A.P.D. Holdings, Inc. (APD) appeals the trial court’s order dissolving a writ of attachment. We reverse.
In October 2002, APD filed a Complaint against Gary and Rachel Reidel based on breach of a lease agreement. APD sought damages in an approximate amount of $20,000. On December 2, 2002, APD filed an Ex Parte Motion for Writ of Attachment seeking to attach certain property owned by Rachel Reidel that was located in the state of Florida. In conjunction with the motion, APD posted a surety bond with the clerk of court. The trial court granted the motion and ordered a writ of attachment. On December 19, 2002, Rachel Reidel filed a Motion for Immediate Dissolution of Writ of Attachment and Forfeiture of Bond. On that same day, she also filed a Notice of Hearing stating that a hearing on her motion for dissolution would be held on December 20, 2002 at 10:00 a.m.
On December 20, 2002, at approximately 8:45 a.m., APD filed a Motion to Continue Hearing and served a copy on the trial judge. APD requested that the hearing be continued in order for its president, Robert Dziurgot, to travel to Florida from Massachusetts. The motion stated that after receiving the notice of hearing, Mr. Dziurgot made a reservation on a flight to arrive in Fort Lauderdale at 10:22 a.m. on December 20th, approximately twenty-two minutes after the time that the hearing was scheduled to start.
The trial court denied the motion and the hearing took place as scheduled. At the close of the hearing, the trial court determined that the writ of attachment was invalidly obtained and immediately entered an order granting the motion and dissolving the writ.
APD argues that the trial court should have granted its motion for continuance. We agree. The denial of a motion to continue is governed by the abuse of discretion standard of review. See Geralds v. State, 674 So. 2d 96, 99 (Fla.1996). Florida courts have held that it is reversible error to refuse to grant a motion for continuance where a party or his or her counsel is unavailable for physical or mental reasons which prevent a fair and adequate presentation of the party’s case. See Ziegler v. Klein, 590 So. 2d 1066, 1067 (Fla. 4th DCA 1991). In the instant case, APD requested the continuance so that Mr. Dziurgot could testify at the hearing regarding the basis for the writ of attachment. Due to the short notice, Mr. Dziur-got was physically unavailable and would not be available until after his arrival in Fort Lauderdale at 10:22 a.m.
In Fleming v. Fleming, 710 So. 2d 601 (Fla. 4th DCA 1998), this court set out factors to be considered in determining whether the trial court abused its discretion in denying the motion for continuance. These factors include: whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or incon venience as a result of a continuance. Id. at 603.
In the instant case, the denial of the continuance created an obvious injustice for APD. As the president of APD, Mr. Dziurgot had personal knowledge of the issues. It was his affidavit that had provided the basis for the issuance of the writ of attachment. In addition, his testimony was relevant to the statutory considerations outlined in section 76.24, Florida Statutes (2002), “Dissolution of Attachment.”
Under the circumstances, the request for continuance was not the result of dilatory practices on the part of APD, but rather the result of the short notice of the hearing. Finally, even though the Reidels’ counsel informed the trial court that he would not be available later that day to conduct the hearing due to other commitments, it is not clear that the Reidels would have suffered any prejudice as a result of continuing the hearing until later that day or the next business day. Based on these factors, we hold that the trial court abused its discretion in denying APD’s Motion to Continue.
REVERSED.
POLEN and KLEIN, JJ., concur.
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Vollmer v. KEY Dev. Props., Inc., 966 So. 2d 1022 (Fla. 2d DCA 2007)…eversible error to refuse to grant a motion for continuance 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 a…
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Eli Baron v. Baron, 941 So. 2d 1233 (Fla. 2d DCA 2006)…eversible error to refuse to grant a motion for continuance 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 a…
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Krock v. Irwin Rozinsky & State Farm Mut. Auto. Ins. Co., 78 So. 3d 38 (Fla. 4th DCA 2012)…trial court abused its discretion in denying her motion for extension of time based upon her medical condition. The standard of review of a trial court’s denial of a motion for continuance is abuse of discretion. See A.P.D. Holdings, Inc. v. Reidel, 865 So. 2d 682, 683 (Fla. 4th DCA 2004). An appellate court will not reverse unless an abuse of discretion is “clearly shown.” Taylor v. Mazda Motor of Am., Inc., 934 So. 2d 518, 520 (Fla. 3d DCA 2005). Factors to be considered in determining whether the trial co…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Geralds v. State, 674 So. 2d 96 (Fla. 1996)
- Fleming v. Fleming, 710 So. 2d 601 (Fla. 4th DCA 1998)
- Ira Peter Ziegler v. Klein, 590 So. 2d 1066 (Fla. 4th DCA 1991)