Schmidt v. Lichtman

OPINION OF THE COURT PER CURIAM. Appellant, Defendant below, appeals the summary denial of his written Motion for Continuance based upon a current hospitalized illness. There is no question that the trial Court has broad discretion over the matter of continuances in the conduct of its trial calendar. Diaz v. Diaz, 258 So.2d 37 (Fla. 3d DCA 1972). [96] There is no question as to the denial of due process where the defendant is unable or incapable of appearing and defending an action as a result of a present physical infirmity, as in the case at bar. This matter was filed on the 27th day of December, 1984 with a hearing date of February 8, 1985, and a trial date of March 6, 1985. A Motion for Continuance was filed by the defendant’s attorney, based upon the defendant’s current hospitalization. The trial Court summarily denied the continuance notwithstanding the absence of any controverting affidavit and proceeded to trial, wherein judgment was entered against the defendant. It was manifestly unjust to the defendant, Stanley Schmidt, to have been denied his original Motion for Continuance, Ford v. Ford, 8 So.2d 495 (Fla. 1942), where there was no direct prejudice to the plaintiff, as established in this case. The Judgment is REVERSED and REMANDED for a new trial in accordance with this decision.