County Small Claims Court: CIVIL PROCEDURE — Motion for Continuance – Although the appellate record was insufficient, it is highly unlikely that Appellant could have demonstrated that the trial court abused its discretion in granting Appellee’s motion for continuance. Granting of motion for continuance and motion to stay proceeding affirmed. Jack Petrosky v. Donnie C. Johnson, No. 2010-AP-000012-WS (Fla. 6th Cir. App. Ct. August 9, 2011).

 

NOT FINAL UNTIL TIME EXPIRES FOR REHEARING AND, IF FILED, DETERMINED

 

 

IN THE CIRCUIT COURT OF THE SIXTH JUDICIAL CIRCUIT

OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY

APPELLATE DIVISION

 

JACK PETROSKY,     

                        Appellant,

                                                                        UCN:              512010AP000012XXXXWS

v.                                                                     Case No:       10-AP-000012-WS

                                                                        Lower No:    08-SC-5226-WS

 

DONNIE C. JOHNSON,                                        

                        Appellee.                                                      

______________________________/

 

Appeal from Pasco County Court

 

County Judge Candy Morris VanDercar and

County Judge Paul E. Firmani  

 

Ramy N. Fares, Esq.,

For Appellant

 

Donnie C. Johnson,   

Appellee

 

 

ORDER AND OPINION

 

            Appellant argues that the trial court reversibly erred by granting Appellee’s Motion for Continuance and Motion to Stay Proceeding.  Although the appellate record was insufficient, it is highly unlikely that Appellant could have demonstrated that the trial court abused its discretion.  Therefore, we affirm the trial court’s decisions as set forth below.

FACTUAL BACKGROUND

On December 16, 2008, Appellee (Donnie Johnson) filed a small claims action against Appellant (Jack Petrosky), alleging that Appellant set in motion a Wal-Mart shopping cart, which collided with Appellee’s vehicle, causing damage to his 2004 Ford Mustang.  The pre-trial conference was scheduled for January 20, 2009, and the trial was scheduled for March 17, 2009 by Judge VanDercar.  On the March 17, 2009 trial date, Appellee did not appear.  Although a transcript was not included in the appellate record, Appellant alleges that Appellee’s mother was present and orally requested a continuance because Appellee’s father was also not present.  The trial court granted the requested continuance. 

A new trial date was set for May 5, 2009.  Again, a transcript was not provided, but Appellant alleges that neither Appellee nor his father appeared.  Instead, Appellee’s mother was present and orally requested another continuance due to Appellee’s military deployment.  The matter was ostensibly taken under advisement, and the request for stay was granted on June 9, 2009 by Judge VanDercar.  In the Order to Set Aside Hearing Due to Military Activity Duty Overseas, it indicated that Appellee was serving full active duty overseas and would not return until 2010 and that the order would be in effect until September 30, 2010.  On August 12, 2009, Appellant sent correspondence to Judge VanDercar, arguing that a stay was not warranted.    

On March 3, 2010, Appellee filed a copy of his orders indicating that he would be released from active duty on February 28, 2010.  On May 3, 2010, Appellee filed a Notice of Final Hearing, explaining that he served overseas from February 14, 2009 until February 28, 2010, and requested a final hearing. The trial was rescheduled for July 23, 2010, after which Judge Firmani entered a Final Judgment against Appellant on July 29, 2010.  Appellant filed a timely Notice of Appeal on August 27, 2010.             


LAW AND ANALYSIS

            Appellant argues that the trial court erred in granting Appellee’s motion to continue and motion to stay proceedings in lieu of dismissing the case or proceeding to trial on the merits.  On appeal, a trial court’s decision is presumed correct.  Appellant has the burden of overcoming this presumption by demonstrating reversible error.  State v. Blanco, 896 So. 2d 900 (Fla. 4th DCA 2005).  Appellant has not provided a transcript or an appropriate substitute of the trial court hearings.  Where a transcript or proper substitute is not included in the appellate record, the trial court’s order must be upheld unless fundamental error is shown on its face.  Hoirup v. Hoirup, 862 So. 2d 780, 782 (Fla. 2d DCA 2003).  The most significant obstacle to meaningful review of a trial court’s decision is the lack of a transcript.  Esaw v. Esaw, 965 So. 2d 1261, 1264 (Fla. 2d DCA 2007).

            Even had a transcript been provided, it is highly unlikely that Appellant could have demonstrated reversible error.  Granting a continuance is within the trial court's discretion, and the court's ruling on a motion for continuance will be reversed only when an abuse of discretion is shown.  Mosley v. State, 46 So. 3d 510 (Fla. 2009); Lebron v. State, 799 So. 2d 997, 1018 (Fla. 2001).  In this case, it does not appear that the trial court abused its discretion in granting Appellee’s motions to continue.    

            Florida Small Claims Rule 7.130 indicates that a continuance “may be granted only upon good cause shown. The motion for continuance may be oral, but the court may require that it be reduced to writing. The action shall be set again for trial as soon as practicable and the parties shall be given timely notice.”  Taking Appellant’s statement that Appellee’s mother was the only person present and the one requesting a continuance on her son’s behalf due to his military deployment as true, since a transcript is lacking, Appellant still has not demonstrated that the trial court abused its discretion in granting the continuance requests.  The trial court’s order stated that further hearings would not be heard until Appellee returned from serving full active duty overseas, as he was exercising his right to serve in the military.  A trial court's decision does not constitute an abuse of discretion "unless no reasonable person would take the view adopted by the trial court."  Scott v. State, 717 So. 2d 908, 911 (Fla. 1998).  Granting a continuance to a party on military deployment does not reasonably constitute an abuse of discretion. 

            Appellant further argues that the case should have been dismissed pursuant to Rule 7.160.  Rule 7.160(a) states that if a plaintiff fails to appear at the pretrial conference or fails to appear at trial “the action may be dismissed for want of prosecution, defendant may proceed to trial on the merits, or the action may be continued as the judge may direct.”  Appellant contends that since Appellee did not appear, the case should have been tried or dismissed.  It is discretionary, however, whether or not the trial court chooses to proceed, continue, or dismiss the case.  It should also be noted that no motion to dismiss appears to have ever been presented to the trial court.  Even had such a motion been presented, Appellant has not demonstrated that the trial court abused its discretion by not dismissing the case under this rule.  Rule 7.160(b) further provides, “If both parties fail to appear, the judge may continue the action or dismiss it for want of prosecution at that time or later as justice requires.”  Both parties did not fail to appear at either pretrial conference; thus, this section does not apply as Appellant suggests.  Even so, subsection (b) is likewise discretionary, allowing the trial court the option to either continue or dismiss the case.    

            Finally, Appellant argues that the trial court improperly granted Appellee’s request to stay the case until 2010 under 50 USCS Appx § 522.  Subsection (b)(1) provides that at any stage before final judgment in a civil action in which a service member is a party, “the court may on its own motion and shall, upon application by the servicemember, stay the action for a period of not less than 90 days,” if the following conditions under subsection (b)(2) are met:

      (A) A letter or other communication setting forth facts stating the manner in which current military duty requirements materially affect the servicemember's ability to appear and stating a date when the servicemember will be available to appear.

      (B) A letter or other communication from the servicemember's commanding officer stating that the servicemember's current military duty prevents appearance and that military leave is not authorized for the servicemember at the time of the letter.   

Both conditions were met by Appellee.  Appellee communicated when his deployment would inhibit him from appearing and when he would be available to appear through his mother and his drafted request titled “Order to Set Aside Hearing Due to Military Active Duty Overseas.”  The record also contains a written communication as directed by subsection (b)(2).  Even had the requirements not been met under 50 USCS Appx § 522, it was unnecessary since granting a continuance was within the trial court’s discretion.

            Given the state of the record, Appellant cannot establish reversible error.  Even had a transcript been provided, it is truly doubtful that Appellant could have shown that the trial court abused its discretion.  It is therefore,

 

            ORDERED that the trial court’s decision is hereby AFFIRMED.

 

DONE AND ORDERED in Chambers, at New Port Richey, Pasco County, Florida this 9th day of August 2011.

 

Original order entered on August 9, 2011 by Circuit Judges Stanley R. Mills, W. Lowell Bray, Jr., and Daniel D. Diskey.