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Court of Appeals Overturns Denial of Continuance Motion

January 18, 2006 – Media Coverage
HarrisMartin

WEST PALM BEACH, Fla. -- A Florida Court of Appeals has granted an emergency petition for writ of certiorari, relieving the defendants of a trial court order expediting the underlying asbestos trial.Genuine Parts Co., et al. v. Parsons, No. 4D05-4633 (Fla. 4th Dist. Ct. App.).

In the Jan. 11 opinion, the Fourth District Court of Appeals opined that the trial court did not comply with the Florida Rules of Civil Procedure when granting a motion to expedite the trial, specifically a section which mandates that all defendants must be served with the complaint before a trial setting can be made.

Plaintiff James C. Parsons moved to expedite his trial in October 2005, citing his terminal illness allegedly caused by exposure to asbestos. Shortly thereafter, the plaintiff provided a list of job sites previously not disclosed to the defendants and renewed his motion to expedite, according to the Court of Appeals.

The trial court verbally notified the defendants that trial would begin on Dec. 5, and then denied a subsequent motion by the defendants for a continuance.

The defendants subsequently filed an emergency petition with the Court of Appeals for writ of certiorari or mandamus, claiming that the trial court erred when denying the motion for trial continuance. The Court of Appeals agreed, quashing the order denying the motion for continuance and remanding for further proceedings.

In opposition of the appeal, the plaintiff argued that his motions to expedite trial were sufficient notices for trial.

'We disagree,' the Court of Appeals stated. 'There is no excuse to ignore the mandatory language of Fla. R. Civ. P. 1.440(c), which prevents the trial court from setting the trial in less than thirty days from service of a notice for trial. We do not adhere to the plaintiff's theory that the rules of civil procedure were meant to be broken.'

The Court of Appeals additionally rejected the plaintiff's contention that the Amended Omnibus Order on Trial Setting, Discovery and Product Identification in Personal Injury Asbestos Litigation precludes the need for a notice of trial. The Court of Appeals instead opined that the omnibus order sets a trial calendar after all the defendants have been served, which did not occur in the instant proceedings.

'Because the plaintiff and the trial court failed to adhere to the Florida Rules of Civil Procedure and the Omnibus Order, we grant the defendants' petitions for mandamus, quash the orders denying the defendants' motion for continuance, and issue the writ of mandamus,' the Court of Appeals concluded. 'We are not unmindful of the plaintiff's medical condition. We therefore remand the case to the trial court for proceedings consistent with this opinion. This does not preclude the trial court from expediting proceedings as long as such expedited process complies with the Florida Rules of Civil Procedure, the Omnibus Order, and is fair to all parties.'

Counsel for the defendants are Steven L. Brannock and Meagen Peek Luka of Holland & Knight in Tampa, Fla.; Thomas M. Burke and Chris N. Kolos of Holland & Knight in Orlando, Fla.; Jeffrey M. Bell of Bell & Melamed in Ft. Lauderdale, Fla.; Jack R. Reiter and Anthony N. Upshaw of Adorno & Yoss in Miami; Michael R. Holt of Rumberger, Kirk & Caldwell in Miami; Robert Perez of Salas, Ede, Peterson & Lage in Miami; Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein in Ft. Lauderdale, Fla.; and Evelyn Fletcher Davis of Hawkins Parnell & Young of Atlanta.

The plaintiff is represented by David A. Jagolinzer and Case A. Dam of the Ferraro Law Firm in Miami.

Document is Available Call (800) 496-4319 or Search www.harrismartin.com Opinion Ref# ASB-0602-06

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