Trial Continuances (After COVID-19) – Helping Another Client Defend Against Foreclosure and Save Their Home

Getting a continuance of trial before COVID-19 was fairly straightforward. Florida Rule of Civil Procedure 1.460, and the uncomplicated case law interpreting it, controlled the analysis. But as part of COVID, the Florida Supreme Court issued Administrative Order AOSC20-23 (and amended it thirteen times as the crisis progressed).

In the Order, the Court directs “all judges within their circuits to strictly comply with Florida Rule of General Practice and Judicial Administration 2.545(a), (b), and (e), which respectively require judges to conclude litigation as soon as it is reasonably and justly possible to do so, to take charge of all cases at an early stage and to control the progress of the case thereafter until it is determined, and to apply a firm continuance policy allowing continuances only for good cause shown.” (Emphasis added.)

The Order also requires chief judges in every circuit/county to issue administrative orders which divide cases into three categories: complex, streamlined, or general. Each of those have their own deadlines, which “will be strictly enforced by the court.” Id. (For foreclosure attorneys, having timelines to push cases to resolution is nothing new.)

In one of our cases, we recently moved for a continuance of trial. The case is about three and a half years old and well past the applicable timelines. Trial was only a couple of days away from the hearing on the motion for continuance and we are ready, willing, and able to go to bat for our client—as we have done hundreds of times before. But here, our client really wants to save their home and recently submitted a loan modification package. At the hearing, the judge quickly informed us that the case was too old and that the new Supreme Court and local circuit directives required him to deny the continuance.

I expressed that I understood the court’s predicament and then respectfully argued why the judge could still grant our motion.

First, a recent Fourth District Court of Appeal case addressed the impact of the deadlines expressed in AOSC20-23. Massey v. Thomas, 342 So. 3d 680 (Fla. 4th DCA 2022). In Massey, a trial court dismissed a case because of a party’s failure to comply with these new timelines. Id. But the Fourth District reversed because there is established precedent as to when a court can dismiss a case as a sanction (as discussed in Kozel v. Ostendorf, 629 So. 2d 817 (Fla. 1993)), and the court did not apply that analysis before dismissing. Massey, 342 So. 3d 680. “[The Florida Supreme] Court does not intentionally overrule itself sub silentio.” Id. at 685 (citing Puryear v. State, 810 So. 2d 901, 905 (Fla. 2002)). And, “[b]ecause the trial court misinterpreted the administrative order as requiring strict compliance without regard to Kozel, it erred.” Id.

Second, as cited above, Florida Rule of Civil Procedure 1.460 (and the case law interpreting it) controls continuances. The Florida Supreme Court Order has not sub silentio overruled that Rule or the body of caselaw interpreting it. Rather, the Florida Supreme Court has directed judges to “apply a firm continuance policy allowing continuances only for good cause shown.” Arguably, no motion—of any kind—can be granted unless good cause is shown. So the same law should still apply. And that law gives the courts discretion—within the framework of a binding three-part test.

Lastly, in full disclosure to the court, the circuit in this particular matter had passed its own administrative order, which included a proposed case management order. And that seemed to create a far more unforgiving standard for continuances. The proposed case management order states:

The above-referenced schedule of deadlines will be strictly adhered to by the parties unless a change is otherwise agreed to by the parties and approved by the Court. The Court will consider a request to approve changes to these deadlines upon a showing of good cause by either party based on matters arising from an emergency nature or unavailability. However, once the Agreed Case Management Plan has been approved by the Court, procrastination in completing discovery or the unavailability of counsel will not constitute good cause for a change to these deadlines. The failure to abide by these deadlines may result in sanctions by the Court, including the award of attorney’s fees, the striking of pleadings, and/or a dismissal of the action.

But, in this particular case, the case management plan was never entered. So the court was not bound by it. (I did not have to argue this but, “[i]f a chief judge issues an administrative order which attempts to amend a statute or rule by adding terms and conditions, that administrative order is invalid because it limits judicial discretion and exceeds the authority granted under Florida Rule of Judicial Administration 2.050(b).” Hatcher v. Davis, 798 So. 2d 765, 766 (Fla. 2d DCA 2001). An analogous argument could be made here.)

As I finished my argument, the court asked the bank lawyer for the amount of time it needed to complete a review of the modification package. The bank lawyer advised that it would take forty-five to sixty days. The court then stated it would grant the continuance for at least sixty days and then said “that’s a fine a recitation of the current state of law regarding the covid-related changes as I’ve ever heard. Well done Mr. Rosen.”

I’m grateful for the positive feedback. But hopefully, this will result in our client saving his home!

If you or someone you know needs help with a real estate, foreclosure defense, consumer protection, or personal injury matter, please contact us. Let the Law Offices of Evan M. Rosen, P.A. serve you!