Daher v. Pacha Nyc , 2016 Fla. App. LEXIS 7907 ( 2016 )

Third District Court of Appeal
State of Florida
Opinion filed May 25, 2016.
Not final until disposition of timely filed motion for rehearing.
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No. 3D15-825
Lower Tribunal No. 11-43867
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Rodrigo Daher,
Appellant,
vs.
Pacha NYC, etc., et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Jorge E. Cueto,
Judge.
Adam E. Miller and Michael B. Westheimer (Pompano Beach), for
appellant.
Entin & Della Fera, P.A., and Richard F. Della Fera, and Joseph E. Somake
(Fort Lauderdale), for appellees.
Before WELLS, EMAS, and LOGUE, JJ.
LOGUE, J.
Rodrigo Daher appeals an order dismissing his claims against Pacha NYC
and three of its employees based on his failure to appear for trial, arguing that his
motion to continue the trial should have been granted due to his inability to attend
the trial. We recognize the high degree of deference afforded to the trial court with
respect to this type of discretionary decision. However, for the following reasons,
we reverse and remand for further proceedings.
FACTS AND PROCEDURAL BACKGROUND
In March 2009, Daher, a Brazilian citizen, visited Miami to attend a music
festival and a party at a Miami Beach hotel. Pacha sponsored the hotel party. On
the day of the party, Daher had a change of heart and decided to sell his tickets for
face value near the hotel. Unbeknownst to him, three alleged employees of Pacha
(bouncers or security guards) assumed that he was attempting to sell counterfeit
tickets. After a buyer paid for the tickets in cash, one of the employees allegedly
grabbed Daher around the neck and placed him in a chokehold. Another employee
took the cash and tickets and ripped the tickets apart. The employees then allegedly
hit Daher in the face repeatedly, causing severe injuries. He received treatment for
his injuries at a local hospital. He then returned to Brazil.
On December 30, 2011, Daher filed suit against Pacha and the employees
who allegedly assaulted him. He made claims of negligence, battery, assault, and
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conversion against the employees. He alleged claims of vicarious liability and
negligent supervision against Pacha.
The trial date was significantly delayed. This delay was caused primarily, if
not exclusively, by Pacha or the insurance carrier responsible for its defense. For
example, Pacha sought a stay of the proceedings after its insurance carrier had
been placed into receivership in Delaware. After the stay expired, on October 17,
2014, Pacha asked the trial court to set the trial on its May 2015 trial docket. The
trial court declined the request and, instead, opted to set the trial for its March 2015
trial docket. The court ultimately scheduled the trial for March 9, 2015.
On February 18, 2015, the parties filed a joint motion to continue the trial to
the next trial docket due, in large part, to the defendants’ difficulty in deposing
Daher while he resided in Brazil. The parties agreed that a continuance would not
prejudice them. In a written order, the trial court denied the joint motion without
explanation. The defendants then moved to strike all of Daher’s pleadings,
including the witness list which included Daher, alleging they had been unable to
depose Daher because he lived in Brazil. Attached to the motion was an email
from Daher’s counsel, stating that Daher has been unable to obtain a travel visa,
but that he can return to the United States by March 2, 2015.
On March 3, 2015, Daher’s counsel filed an emergency motion to continue
the trial based on circumstances “beyond the control” of Daher. The motion stated
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that on July 18, 2014, Daher applied for permission to travel to the United States
for this court proceeding. He also had retained an immigration attorney to
“navigate the bureaucratic procedures” of the United States Citizenship and
Immigration Service (USCIS). His visa request, however, had not yet been
granted. Although counsel admitted that USCIS had provided no assurances
regarding the exact date of travel approval, the motion went on to explain that as
recently as the day this motion was filed, USCIS had advised counsel that the
approval could occur “any day.” With these circumstances in mind, counsel asked
the court to reschedule the trial for the next trial docket, as the parties had
previously requested in their joint motion for a continuance. The trial court denied
the request because the case had been pending for over three years.
On the day of trial, March 9, 2015, Daher’s trial counsel appeared and orally
renewed his motion for a continuance. He informed the court that Daher’s visa
request had not yet been approved, but, as he stated in his prior motion for a
continuance, the approval was expected “any day.” He explained that in
anticipation of imminent travel approval, Daher had bought a plane ticket to
Miami, booked a hotel in Miami, and attempted to board a plane to Miami a few
days before trial. Daher’s trial counsel also provided correspondence between
USCIS and Daher’s immigration attorney dating back to 2013, which reflected the
efforts taken by Daher to return to the United States. Daher’s trial counsel further
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offered to call Daher’s immigration attorney, who was present in the courtroom, to
testify regarding the efforts taken by Daher to attend trial. The trial court denied
this request, denied the renewed motion for a continuance, and dismissed the case
due to Daher’s failure to appear. This appeal followed.1
ANALYSIS
The decision whether to grant or deny a continuance is within the trial
court’s discretion. Morris v. City of Cape Coral, 163 So. 3d 1174, 1180 (Fla.
2015). But that discretion is not absolute. See Fisher v. Perez, 947 So. 2d 648, 653
(Fla. 3d DCA 2007) (“While a trial judge ordinarily has great discretion in ruling
on matters during the course of a trial, such rulings must comport with fairness and
due process.”); Silverman v. Millner, 514 So. 2d 77, 78 (Fla. 3d DCA 1987)
(“Special circumstances sometimes exist . . . in which the denial of a motion for
continuance creates an injustice for the movant. In these circumstances, this court’s
obligation to rectify the injustice outweighs its policy of not disturbing a trial
court’s ruling on a continuance.”); Shands Teaching Hosp. & Clinics, Inc. v. Dunn,
977 So. 2d 594, 599 (Fla. 1st DCA 2007) (“[T]here are indeed cases in which the
appellate court will have no alternative but to reverse, because the injustice caused
by the denial of the motion outweighs the judicial policy of deferring to the trial
judge.”).
1 The statute of limitations has run on Daher’s claims.
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In this regard, appellate courts have considered several factors when
reviewing the denial of a motion for a continuance. These factors include, but are
not necessarily limited to, the following: whether the denial of the motion results in
the movant suffering an injustice; whether the underlying cause for the motion was
unforeseen; whether the motion is based on dilatory tactics; and whether, assuming
the motion was granted, the opposing party would be prejudiced. See Silverman,
514 So. 2d at 78-79; Yaris v. Hartley, 128 So. 3d 825, 828 (Fla. 4th DCA 2013);
Riley v. Riley, 14 So. 3d 1284, 1287 (Fla. 2d DCA 2009); Myers v. Siegel, 920 So.
2d 1241, 1242 (Fla. 5th DCA 2006).
Relying on some or all of these factors, this court has reversed the denial of
a continuance based on a party’s or important witness’s inability to attend trial due
to medical complications. See Fisher, 947 So. 2d at 653 (an expert medical witness
had unforeseeable medical complications from a recent back surgery); Silverman,
514 So. 2d at 79 (a party had a stroke less than two days before trial).
Other Florida courts have reversed such orders in similar circumstances. See
Yaris, 128 So. 3d at 828 (a party traveled on short notice to be with a dying
relative); Riley, 14 So. 3d at 1287-88 (a party, who could not represent himself
competently, learned that his attorney had withdrawn one week before the crucial
marriage dissolution hearing); Dunn, 977 So. 2d at 600 (a critical witness for a
party was nine months pregnant and unable to safely travel); Myers, 920 So. 2d at
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1243-44 (a party’s attorney, who was vision-impaired, did not have the ability to
appear at trial without sighted co-counsel, who was his wife, due to her emergency
hospitalization); Jean v. Cty. Sanitation Inc., 596 So. 2d 1245, 1246-47 (Fla. 4th
DCA 1992) (a party was seriously injured in a car accident on his way to the
airport).
The circumstances of this case are analogous to those cases. Daher was not
only a party, but also a crucial witness. See Yaris, 128 So. 3d at 828 (“In this case,
the denial of the former husband’s motion for continuance created an injustice for
the former husband. Here, the former husband’s case was crippled by his
absence.”) (internal citations omitted); Dunn, 977 So. 2d at 600 (“We would be
more inclined to excuse the error in denying the motion for continuance if [the
nurse] were not such an important witness. The claim against the hospital was
based entirely on the allegation that [the nurse] was negligent. . . . If the jury
believed [the nurse’s] statement . . . the hospital would have prevailed.”).
The record also is clear that Daher moved for a continuance without
engaging in any dilatory practice. As Daher’s trial counsel stated in his motion,
Daher could not attend trial due to circumstances beyond his control. These
circumstances included navigating the “bureaucratic procedures” of USCIS, for
which Daher had retained an immigration attorney. Despite an unanticipated delay,
Daher’s trial counsel emphasized that visa approval was imminent. He explained
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that in anticipation of imminent travel approval, Daher had bought a plane ticket to
Miami, booked a hotel in Miami, and attempted to board a plane to Miami in time
for trial. Counsel also provided correspondence between USCIS and Daher’s
immigration attorney dating back to over a year and half before trial, which
reflected the efforts taken by Daher to return to the United States. Daher’s trial
counsel further offered to call Daher’s immigration attorney, who was present at
the day of trial, to testify regarding the efforts taken by Daher to attend trial.
Ultimately, Daher’s counsel requested that the court continue the trial to the
next trial docket, which was the same relief the defendants had requested in the
joint motion for a continuance. Nothing in the record indicates that Daher moved
to continue the trial for a mere tactical advantage or for any improper purpose. See
Yaris, 128 So. 3d at 828 (“While the record does not indicate when the former
husband learned of the seriousness of his sister-in-law’s illness, the record is clear
that the former husband was not engaging in a dilatory practice. The record
contains no indication that the former husband was seeking the continuance to
delay the hearing or for any other improper purpose.”).
Nor is there any indication that the defendants would have been prejudiced
by a continuance. To the contrary, the defendants had initially requested a trial date
for May 2015, instead of March 2015, and later joined Daher in seeking to
continue the trial to the next trial docket. In the joint motion, the defendants
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admitted that a continuance would not prejudice them. The record further reflects
no change in circumstance from that point to the point when Daher moved for a
continuance. On these facts, no prejudice to the defendants exists. See Yaris, 128
So. 3d at 829 (“[T]here is no indication that the former wife would have suffered
prejudice if the trial court had granted the continuance. The former wife did not
pose an objection when the former husband’s counsel presented the motion for
continuance and actually had requested a continuance of her own.”).
Finally, and perhaps as significant as any other factor, the trial court’s order
of involuntary dismissal of the complaint sounded the death knell of Daher’s
lawsuit. The statute of limitations had already expired and, as a direct result of the
trial court’s decision to deny a continuance, Daher was precluded from refiling the
complaint. The denial of the motion for continuance was, for all practical purposes,
a dismissal with prejudice. In light of this circumstance and the other
circumstances already discussed, it is hard to envision a more compelling situation
by which “the denial of a motion for continuance creates an injustice for the
movant.” Silverman, 514 So. 2d at 78. Here, as in Silverman, “this court’s
obligation to rectify the injustice outweighs its policy of not disturbing a trial
court’s ruling on a continuance.” Id.
We recognize that the trial court denied Daher’s motion for a continuance
because the case had been pending for over three years. Typically, this basis for
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denying the motion might be reason enough to affirm. But, while we sympathize
with the frustration of the seasoned trial judge regarding the delay in scheduling
the trial, our review of the record leads us to conclude that the delay was not due to
the actions of Daher. Instead, the delay was caused primarily, if not exclusively, by
Pacha or its insurance carrier.
Given all of these circumstances, Daher’s motion for a continuance should
have been granted.
Reversed and remanded for further proceedings.
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