JONATHAN PADILLA
v.
CAPITAL ONE BANK, N.A.
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A notice of unavailability is not an adequate substitute for obtaining a continuance order, and a party cannot avoid an in-person hearing by attempting to appear via Zoom without filing a motion to appear by communication technology.
[1] A notice of unavailability, while useful for informing the court and parties of scheduling conflicts, does not constitute an adequate substitute for a formal motion for c…
[2] A party seeking to appear by communication technology at a hearing scheduled for in-person attendance must file a motion requesting permission to do so under Florida Rule…
Previewing 2 of 2 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“Although a notice of unavailability is a useful pleading for apprising the court and the parties of potential scheduling conflicts and for assisting them in efforts to accommodate counsel, it is not an adequate substitute for obtaining a continuance order.”
Court explaining the limited effect of a notice of unavailability in scheduling disputes.
Jonathan Padilla, proceeding pro se, challenged Capital One's service of process in a county court action. Padilla filed a notice of unavailability fo…
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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
JONATHAN PADILLA, Appellant,
v.
CAPITAL ONE, N.A., Appellee.
Nos. 4D2023-2732, 4D2023-2971 and 4D2023-3102
[August 28, 2024]
Consolidated appeals of nonfinal orders from the County Court for the Seventeenth Judicial Circuit, Broward County; Robert W. Lee, Judge; L.T. Case No. COCE23-059765.
Jonathan Padilla, Cooper City, pro se.
Ramiro G. Kruss of Pollack & Rosen P.A., Coral Gables, for appellee.
PER CURIAM.
Appellant challenges the trial court’s denial of his motion to quash service of process and the subsequent denial of his motion for sanctions and motion to dismiss. The orders denying appellant’s motion for sanctions and motion to dismiss are not appealable under Florida Rule of Appellate Procedure 9.130, and we therefore dismiss the appeal as to those orders. We affirm the order denying appellant’s motion to quash service of process.
Appellant claims he was denied due process when the motion to quash was scheduled at a time for which he had filed a notice of unavailability. However, he did not move for a continuance. “Although a notice of unavailability is a useful pleading for apprising the court and the parties of potential scheduling conflicts and for assisting them in efforts to accommodate counsel, it is not an adequate substitute for obtaining a continuance order.” Delio v. Landman, 987 So. 2d 733, 734 (Fla. 4th DCA 2008) (emphasis added) (footnote omitted). And while appellant apparently tried to attend the hearing by Zoom, the motion was set for an in-person hearing, and appellant never made a motion to appear using communication technology. See Fla. R. Gen. Prac. & Jud. Admin.
2
2.530(b). Finally, because there is no transcript of the hearing, and the trial court’s ruling comes to us with the presumption of correctness, appellant has failed to demonstrate reversible error. See Applegate v. Barnett Bank of Tallahassee, 377 So. 2d 1150, 1152 (Fla. 1979).
Affirmed as to the order denying appellant’s motion to quash service of process; dismissed as to the orders denying appellant’s motion for sanctions and motion to dismiss.
WARNER, MAY and ARTAU, JJ., concur.
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- Somma v. Metra Elecs. Corp., 727 So. 2d 302 (Fla. 5th DCA 1999)
- Delio v. Elliot Landman and Meghan Beuttenmuller, 987 So. 2d 733 (Fla. 4th DCA 2008)