S & S PHARMACEUTICALS, INC., A FLORIDA CORPORATION, AND SAM FOX, APPELLANTS,
v.
IRENE HIRSCHFIELD, AS EXECUTRIX OF THE ESTATE OF EMIL HIRSCHFIELD, DECEASED, APPELLEE
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A Florida appellate court affirmed a judgment against S & S Pharmaceuticals and Sam Fox for recovery of a brokerage commission. The appellants challenged the trial court's refusal to grant a continuance and contended the judgment was contrary to the evidence, but the court found no abuse of discretion and substantial competent evidence supporting the judgment.
The trial court did not abuse its discretion in refusing the continuance, as the case had been set four months in advance and appellants could have completed discovery with due diligence. The judgment was supported by substantial, competent evidence and was proper under either a direct promise theory or an assumption of debt theory, with the latter supported by the written release and indemnification agreement.
“no abuse of discretion is demonstrated in this record in refusing to continue the trial after it had been set four months in advance of the trial date”
Establishes that the trial court properly exercised its discretion in denying the continuance request because appellants had adequate time to prepare.
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A judgment was rendered against the appellants for recovery of a sum of money equal to a brokerage commission, as a result of a purchase in which the appellants either assumed or made a direct promise to pay the amount of the commission upon a release by the broker to the seller and the execution of an indemnification agreement by the appellants to the seller.
They appeal and urge error in the failure to grant a continuance on the morning of the trial. This is a discretionary matter; no abuse of discretion is demonstrated in this record in refusing to continue the trial after it had been set four months in advance of the trial date. Even though the appellants may have been limited during this period within which time they could have taken depositions, they urge they were delayed in the taking until the eve of the trial. It is apparent that if they had used due diligence they could have completed their discovery some weeks prior to the trial date. Therefore, no error is demonstrated in this regard. Hall v. Florida State Drainage Land Co., 89 Fla. 312, 103 So. 828; Fain v. Cartwright, 132 Fla. 855, 182 So. 302; Ford v. Ford, 150 Fla. 717, 8 So.2d 495; State v. Florida State Turnpike Authority, Fla.1961, 134 *875So.2d 12; Carol City Utilities, Inc. v. Gaines Construction Co., Fla.App.1967, 201 So.2d 242.
It is also urged that the final judgment is contrary to the evidence and law which was presented to the trial court as the trier of fact. A review of the record discloses substantial, competent evidence to fix the amount of the commission, the direct promise or understanding of both appellants to respond to the broker for the amount and, therefore, no error in the entry of the judgment- is demonstrated. Tucker v. Forty-Five Twenty-Five, Inc., Fla.App.1967, 199 So.2d 522; Lazar v. Orr, Fla.App.1968, 207 So.2d 23; Reserve Insurance Company v. Earle W. Day & Company, Fla.App.1968, 209 So.2d 709. It is supportable either under the theory that there was a direct promise by the appellants upon the release by the broker to the seller, and therefore not within the statute of frauds [see: Craft v. Kendrick, 39 Fla. 90, 21 So. 803; Yates v. St. Johns Beach Development Company, 118 Fla. 788, 160 So. 197; 15 Fla.Jur., Frauds, Statute of, § 4], or that if there was an agreement to assume the debt of another, and therefore required to be in writing, the written release and indemnification agreement executed by the appellants was sufficient to support a recovery on this theory. See: Meek v. Briggs, 80 Fla. 487, 86 So. 271; Alton Beach Realty Co. v. Henderson, 92 Fla. 689, 110 So. 256; 15 Fla.Jur., Frauds, Statute of, § 10.
The other points raised by the appellants relative to rulings on post-trial motions and the taxing of costs have been reviewed and found to be without merit. Spencer v. Florida-Georgia Tractor Company, Fla.App.1959, 114 So.2d 466; Sullivan v. Rank, Fla.App.1961, 132 So.2d 37; Freeman v. Bandlow, Fla.App.1962, 143 So.2d 547; Cosby-Hodges Milling Company v. Sheffield, Fla.App.1966, 183 So.2d 749; Pix Shoes of Miami, Inc. v. Howarth, Fla.App.1967, 201 So.2d 80.
Therefore, for the reasons above stated, the final judgment here under review he and the same is hereby affirmed.
Affirmed.
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Citator
Cited By
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Edwards v. Pratt, 335 So. 2d 597 (Fla. 3d DCA 1976)…of the trial judge and a gross or flagrant abuse of this discretion must be demonstrated by the complaining party before this court will substitute its judgment for that of the trial judge. S & S Pharmaceuticals, Inc. v. Hirschfield, Fla.App. 1969, 226 So. 2d 874; Williams v. Gunn, Fla.App. 1973, 279 So. 2d 69. Further, requests for a second continuance are seldom favored. McWhorter v. McWhorter, Fla.App. 1960, 122 So. 2d 504. In view of the facts that (1) appellant, after new local counsel was retained, wa…
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Rodriguez v. Allied Universal Corp., 473 So. 2d 1351 (Fla. 3d DCA 1985)…ord shows that defense counsel was completely neglectful in its preparation of the case, it is clear that there was no cognizable ground for' the requested continuance and thus that it was properly denied. S & S Pharmaceuticals, Inc. v. Hirschfield, 226 So. 2d 874 (Fla. 3d DCA 1969). It follows that the new trial order, founded entirely on the determina [*1352] tion that that ruling was incorrect and which consequently represents no more than a post-trial change of mind by the trial judge without any addition…
Authorities Cited (17 total)
- Rice v. Cochran, 134 So. 2d 12 (Fla. 1961)
- Fain v. Cartwright, 132 Fla. 855 (Fla. 1938)
- Meek v. Briggs, 80 Fla. 487 (Fla. 1920)
- The Alton Beach Realty Co. v. Henderson, 92 Fla. 689 (Fla. 1926)
- Ford v. Ford, 150 Fla. 717 (Fla. 1942)
- Hall v. Fla. State Drainage Land Co., 89 Fla. 312 (Fla. 1925)
- Freeman v. Bandlow, 143 So. 2d 547 (Fla. 2d DCA 1962)
- Carol City Utils., Inc. v. Gaines Constr. Co., 201 So. 2d 242 (Fla. 3d DCA 1967)
- Yates v. St. Johns Beach Dev. Co., 118 Fla. 788 (Fla. 1935)
- PIX Shoes OF Miami, Inc. v. Howarth, 201 So. 2d 80 (Fla. 3d DCA 1967)