Maistrosky v. Harvey

• Decision Date: 22 September 1961
• Citation: 133 So.2d 103
• Parties: Samuel J. MAISTROSKY, a/k/a Samuel J. Mack, d/b/a Self Service Shoe Store, Appellant, v. Mabel K. HARVEY, Appellee. no. 2131.
• Court: Florida District Court of Appeals

Page 103

133 So.2d 103

Samuel J. MAISTROSKY, a/k/a Samuel J. Mack, d/b/a Self Service Shoe Store, Appellant, v. Mabel K. HARVEY, Appellee.

no. 2131.

District Court of Appeal of Florida, Second District.

Sept. 22, 1961.

Mann, Harrison, Mann & Rowe, St. Petersburg, for appellant.

Wightman, Rowe & Tanney, Clearwater, for appellee.

SMITH, Judge.

This was an action by the plaintiff, appellee here, against the defendant, appellant here, for injuries alleged to have been received by plaintiff while a business invitee on the premises of the defendant as a result of the collapse of a canvas stool. To understand all of the issues presented on appeal, a brief history of the cause is necessary.

The complaint was filed May 1, 1958, answer filed and a trial had before a jury. At the conclusion of the plaintiff's case, the court directed a verdict for the defendant and appeal was taken from the final judgment entered for the defendant. This court reversed that judgment, Harvey v. Maistrosky, Fla.App.1959, 114 So.2d 810. On February 1, 1960, the court entered an order directing pre-trial conference to be held on February 29th. The record here does not show and further history of the progress of the cause until it again came on for trial on March 11, 1960. (An endeavor by the plaintiff to establish the intervening progress of the cause by affidavit of a deputy clerk of the trial court, filed in this court, was ordered stricken by previous order of this court.) Prior to the beginning of the trial on that day, the defendant filed his motion for continuance alleging that the attorney who solely handled the original investigation, preparation for the first trial, the first trial, the first appeal, and the preparation for the second trial is the only attorney in the firm representing the defendant who had any familiarity with the attorney's office file until the evening of March 10th; that this attorney was involved in a chancery proceeding before another judge of the same court which was scheduled to be concluded on March 10th; and that this attorney advised the chancellor on March 10th that the trial of this case was set to begin the next day. The chancellor advised the attorney that the chancery case would continue on the next day, and the chancellor advised the attorney that he (the chancellor) would have the captioned case continued, but that on the same day the court before whom this cause was set advised the attorney that the captioned case would proceed to trial as scheduled; and that the attorney so involved was the only attorney in the law firm representing the defendant who was fully familiar with the captioned case (emphasis supplied by this court). The motion then details circumstances to show the involved, complicated, legal and factual points in question in the chancery cause and concludes that by reason thereof, it is at this time, impossible for another member of the firm to enter in the chancery proceedings and assume the representation of their client in that cause. The trial court then denied the motion stating:

'This cause came on at this time upon the defendant's motion for a continuance in the above styled cause. After argument of counsel and the court being fully advised in the premises, the motion was denied because the court finds that there has been ample time to make arrangements for standby counsel and in fact defendant is now represented by experienced and able counsel from the same law firm.'

The cause then proceeded to trial resulting in a jury verdict in favor of the plaintiff, whereupon the court entered final judgment. Defendant's motion for judgment notwithstanding the verdict and motion for new trial were denied and the defendant brings this appeal, assigning as error first the denial of his motion for continuance and second the denial of certain requested charges.

In addition to these issues, the appellant filed a motion to strike portions of the brief of the appellee filed in this court. Consideration of that motion was, by order of this court, deferred until the appeal was considered on the merits.

We now consider the motion to strike. Having studied the entire record, it is now apparent that the portions of appellee's brief sought to be stricken recite matters which are dehors the record. We are confined to the record produced here. Kelley v. Kelley, Fla.1954, 75 So.2d 191. Unless the record shows to the contrary, it shall be presumed upon appellate proceedings that the record transmitted to the court contains all proceedings in the lower court material to the points presented for decision in the court. Florida Appellate Rule 3.6(l), 31 F.S.A. The appellant's motion to strike is granted and this court does herewith strike from the appellee's brief all of the parts thereof set forth in the motion.

The parties do not dispute the fact that a motion for continuance is directed to the sound judicial discretion of the trial court, and the denial of such a motion will not be reversed by an appellate court, unless there has been a palpable abuse of this judicial discretion,...