Taylor v. Mazda Motor of America, Inc.

• Decision Date: 09 November 2005
• Docket Number: No. 3D04-2259.,3D04-2259.
• Citation: 934 So.2d 518
• Parties: Ruth TAYLOR f/k/a Ruth Woodson, Appellant, v. MAZDA MOTOR OF AMERICA, INC., Appellee.
• Court: Florida District Court of Appeals

934 So.2d 518

Ruth TAYLOR f/k/a Ruth Woodson, Appellant, v. MAZDA MOTOR OF AMERICA, INC., Appellee.

No. 3D04-2259.

District Court of Appeal of Florida, Third District.

November 9, 2005.

Krohn & Moss and Alex D. Weisberg, Phoenix, AZ, and Theodore F. Greene III (Sunrise), for appellant.

Rumberger, Kirk & Caldwell and Joshua D. Lerner, Miami, for appellee.

Before WELLS, SUAREZ, and CORTIÑAS, JJ.

SUAREZ, J.

The Plaintiff, Ruth Taylor, appeals the denial of a motion for continuance, an order striking the testimony of the plaintiff's witnesses and the granting of a directed verdict in favor of the appellee, Mazda Motor of America, Inc. ("Mazda Motor"). We affirm in part and reverse in part.

Ms. Taylor brought suit in the Eleventh Judicial Circuit in and for Miami-Dade County, Florida, against Mazda Motor for damages for breach of warranty after purchasing a new vehicle. At the time of the filing of the lawsuit, May 23, 2003, her attorney, Mr. Weisberg, was located in Chicago, Illinois, and planning to relocate his office to South Florida. On January 27, 2004, he filed a Notice of Unavailability stating that he would not be available during March 1, 2004, through May 1, 2004. On May 10, 2004, Weisberg served a notice requesting the setting of trial on the "next jury docket." On May 25, 2004, the trial court filed the Pre-trial Conference Order setting a pre-trial conference for July 7, 2004. The Order specifically provides:

THIS P.T.C. IS ALSO A CALL OF CALENDAR. THE TRIAL MAY BE SET IN AS SHORT A TIME AS 3 DAYS FROM P.T.C. BE READY FOR TRIAL.

* * * * * *

VII. The parties shall complete ALL necessary discovery and complete all Court appointed examinations before the date of the Pre-Trial Conference and are prohibited from carrying on further discovery after the Conference. This may not be waived by stipulation of counsel.

* * * * * *

IX. The Court will not consider motions for delay, inconvenience or other grounds for continuance, except those which are provided and mandatory under law. ALL requests for continuances must be in writing and must state the specific reason for the request.

On June 24, 2004, Mazda Motor noticed the taking of the deposition of plaintiff and her expert for June 29, and July 1, 2004. At the request of Weisberg, and in an effort to accommodate his schedule to move his office the week of June 21 through June 28, 2004, Mazda Motor agreed to cancel the depositions. Although correspondence between Weisberg and opposing counsel indicates that Weisberg was in need of a continuance, and that counsel for the appellee had no objection to such, as she needed time to take discovery depositions due to Weisberg's unavailability, she wrote advising him to file a motion with the court seeking a continuance. On July 2, 2004, Weisberg first moved to reschedule the pre-trial conference on grounds that it was not possible to schedule the deposition of the plaintiff prior to the pre-trial conference because he was relocating his office during that time period and would be unavailable. The trial judge never received the motion. Weisberg appeared before the trial judge at the pre-trial conference on July 7, 2004, and moved for a continuance on grounds that he was unprepared for trial as a result of the relocation. The trial judge denied the motion for continuance. The attorney for Mazda Motor explained to the judge that she had been unable to take the depositions of the plaintiff and plaintiff's expert due to Weisberg's move and unavailability. The trial judge then granted Mazda Motor's ore tenus motion to strike the trial testimony of the plaintiff and the plaintiff's expert (plaintiff's only two witnesses) on grounds that plaintiff had failed to submit them for deposition. Rather than take a voluntary dismissal, the plaintiff chose to go to trial. On July 12, 2004, the matter went to trial and the plaintiff announced that she had neither witnesses nor evidence. The trial court then directed a verdict for Mazda Motor and entered final judgment in its favor. Taylor appeals the denial of the motion for continuance, the order striking the testimony of her witnesses and the granting of a directed verdict.

I.

The standard of review for the denial of a motion for continuance is abuse of discretion. Williams v. Gunn, 279 So.2d 69 (Fla. 1st DCA 1973); Fasig v. Fasig, 830 So.2d 839 (Fla. 2d DCA 2002). An appellate court will not interfere with a trial judge's discretion, Diaz v. Diaz, 258 So.2d 37 (Fla. 3d DCA 1972), unless abuse is clearly shown. Buckley Towers Condo. Inc. v. Buchwald, 340 So.2d 1206 (Fla. 3d DCA 1976). We hold that appellant has not demonstrated an abuse of discretion by the trial judge below in denying her motion for a continuance. Although Taylor's counsel had been corresponding with opposing counsel about the possible need to reschedule the depositions and, impliedly, the trial, defense counsel advised Weisberg in a letter to ask the court for permission to continue the trial. No formal motion for continuance was filed until Weisberg moved to reschedule the pre-trial conference on July 2, 2004, which was approximately six weeks after the trial judge's order setting the date of the conference, and only five days before the conference itself, which was set for July 7, 2004.¹ Moreover, the pre-trial order below specifically warned that the court would not consider "motions for delay, inconvenience or other grounds for continuance" unless mandatory or provided for under the law. Plaintiff's reason for requesting the continuance is not one that is mandatory or provided for under the law. In any event, since appellant's July 2, 2004 motion to reschedule the pre-trial conference was never received by the trial judge, plaintiff's counsel's appearance before the court when he moved for a continuance was the first time Weisberg successfully made the trial judge aware that he was not ready for trial.

It was, therefore, within the trial judge's discretion to deny the motion for continuance in accordance with the terms of the pre-trial order. Rainey v. Roesall Corp., 71 So.2d 160 (Fla.1954); Buckley Towers, 340 So.2d at 1206; Edwards v. Pratt, 335 So.2d 597 (Fla. 3d DCA 1976); Diaz, 258 So.2d at 37; see Associated Television & Communc'ns, Inc. v. Cowden, 417 So.2d 1027 (Fla. 5th DCA 1982) (absent showing that modification of pre-trial order was proper, denial of motion for continuance not abuse of discretion).

II.

A trial court's decision to impose sanctions is...