       Third District Court of Appeal
                               State of Florida

                           Opinion filed May 25, 2016.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                                No. 3D15-825
                         Lower Tribunal No. 11-43867
                             ________________


                               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



                                         4
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



                                          6
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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