This article is the third in a continuing series that will focus on preservation of error for appeal. Each month, Boyd & Jenerette’s appellate attorneys will analyze a specific topic and advise how to properly preserve any issues or arguments for appeal. If you have any questions about a topic, would like to discuss any article, or would like to refer a case, please feel free to reach out to our appellate attorneys. We would also be happy to provide continuing education courses on any of the topics to adjusters or attorneys.

PRESERVATION OF ERROR CONSIDERATIONS FOR MOTIONS FOR CONTINUANCE

Florida Rule of Civil Procedure 1.460 governs the procedure for seeking a continuance. It provides as follows:

A motion for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance. The motion shall state all of the facts that the movant contends entitle the movant to a continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available.

Steps to Preserving Error for Denied Motions for Continuance

To preserve a denial of a motion for continuance made before trial, the motion must be renewed at trial.  Betty’s Design Co. v. Estate of Evans, 863 So. 2d 1255, 1256 (Fla. 2d DCA 2004) (citing McCray v. State, 369 So. 2d 111 (Fla. 1st DCA 1979)); see also Guillen v. State, 189 So. 3d 1004, 1008 (Fla. 3d DCA 2016) (“Because the defendant failed to renew his motion for a continuance at the start of the trial and defense counsel actually stated that he was prepared to go to trial, the defendant failed to preserve for appellate review the trial court’s denial of his motion for a continuance.”); Riggins v. State, 283 So. 2d 878, 879-80 (Fla. 1st DCA 1973).

For example, in Betty’s Design, a pro se defendant filed a motion for continuance at the pretrial conference citing his poor health. Id. at 1255. A jury returned a verdict in favor of the plaintiff and the defendant moved for new trial. Id. at 1256. As grounds for seeking a new trial, defendant argued the court had erred in denying the pretrial motion for continuance. Id.   His motion was granted “based on the conclusion that [the defendant’s] pre-trial motion for continuance should have been granted.” Id. On appeal, the Second District reversed the order granting a new trial because the defendant “waived their right to seek a new trial based upon the trial judge’s denial of their pre-trial motion for a continuance by failing to renew said motion when the matter proceeded to trial.” Id. (citing McCray v. State, 369 So. 2d 111 (Fla. 1st DCA 1979)).

As a result, it is extremely important that when the trial judge asks counsel if he or she is ready to proceed, counsel state that they are renewing the motion for continuance. If counsel indicates they are ready to proceed, then the issue will be considered waived by the appellate court.

If a motion for continuance based on late disclosed evidence is denied, it is important to also object to the admission of such evidence. Additionally, in some situations, a court may deny a motion for continuance based on a party’s assertion that it lacked access to or discovery of evidence, but the court grants an order allowing discovery of the evidence. See Riggins v. State, 283 So. 2d 878, 879-80 (Fla. 1st DCA 1973). To preserve any argument that the order allowing discovery was too close to the date of trial or was issued during trial, an objection related to the lateness of the order is necessary to preserve the issue for appeal. Id.

Discretion in Ruling on a Motion for Continuance

In general, a trial court has broad discretion in ruling on a motion for continuance. See Shands Teaching Hosp. & Clinics, Inc. v. Dunn, 977 So. 2d 594, 599 (Fla. 1st DCA 2007) (“A ruling on a motion for continuance is treated with a relatively high degree of deference, even among other kinds of discretionary decisions.”). Nevertheless, a trial court’s discretion is not unlimited. See Daher v. Pacha NYC, 194 So. 3d 456, 459 (Fla. 3d DCA 2016). Indeed, Florida Rules of Judicial Administration direct that “judges shall apply a firm continuance policy,” meaning “[c]ontinuances should be few, good cause should be required, and all requested should be heard and resolved by a judge.” Fla. R. Jud. Admin. 2.545(e).

Generally, it is rare for a denial of a motion for continuance to be reversed on appeal. Dunn, 977 So. 2d at 599. However, it does happen. It occurs where someone does not have sufficient time to prepare for trial or received opposing evidence too late. See, e.g., Carpenter v. Carpenter, 451 So. 2d 914 (Fla. 1st DCA 1984); Clayman v. Clayman, 536 So. 2d 358 (Fla. 3d DCA 1988); Boland v. State, 946 So. 2d 642 (Fla. 4th DCA 2007). It also occurs where a trial counsel is sick and cannot physically attend trial.

Considerations for Motions To Continue in Different Scenarios

Courts consider multiple factors when reviewing an order denying a motion for continuance, including but not limited to: “whether the denial of the motion results in the movant suffering an injustice; whether the underlying cause for the motion was unforeseen; whether the motion is based on dilatory tactics; and whether, assuming the motion was granted, the opposing party would be prejudiced.” Daher, 194 So. 3d at 459 (citations omitted). However, “[tjhis list is not exhaustive.” Gamer v. Langford. 55 So. 3d 711, 714 (Fla. 1st DCA 2011).

Where a motion for continuance is sought based on the unavailability of a witness, the movant must also show: “(1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice.” Fisher v. Perez, 947 So. 2d 648, 650 (Fla. 3d DCA 2007) (citing State v. J.G., 740 So. 2d 84, 85 (Fla. 3d DCA 1999)).

Thus, in any motion or argument before the court, counsel should include these items in their argument. This will help your appellate counsel establish the record they need to prevail and establish an abuse of discretion.

Conclusion

Practitioners seeking a continuance should first ensure compliance with Florida Rule of Civil Procedure 1.460. If a continuance is sought prior to trial, a written motion for continuance is required. If a pretrial motion for continuance is denied, it is imperative that the motion is renewed at the start of trial. Without a renewal, appellate courts will consider the issue waived for purposes of a motion for new trial that raises the issue. Similarly, when a continuance is sought based on late disclosed evidence, parties should be mindful to object at the time the evidence is being admitted. Finally, where the trial court attempts to alleviate the need for a continuance by granting access to late disclosed evidence, if a party believes the lateness of the court’s order is prejudicial, the party must object to put the trial court on notice that access to the evidence alone is not sufficient.

If you have any questions about this article or would like to refer a matter, please feel free to contact our appellate attorneys.

About the Author:

Geneva Fountain is an attorney in our appellate practice group.   Prior to joining the firm, Ms. Fountain clerked for the Honorable Stephanie W. Ray at the Florida First District Court of Appeal.  While in law school, Geneva served as a writing and research editor and as the editor-in-chief for the Florida State University Business Review.  In addition, she worked as a teaching assistant for Legal Writing and Research I & II. Ms. Fountain can be reached at (904) 493-3769 or gfountain@boydjen.com.