The Florida Supreme Court is on the cusp of adopting an extremely restrictive new rule of civil procedure for trial continuances. This article analyzes the proposed new rule with a focus on practical tips for litigators.
Presently, Rule 1.460, concerning Continuances, requires merely a written motion, unless made at trial, signed by the party requesting it, and state “all the facts that the movant contends entitle the movant to a continuance.”
The new Rule 1.460 (“the New Rule”), if adopted, as it likely will be, provides that “[m]otions to continue trial are disfavored.” Most important, it states “no continuances may be granted except for extraordinary unforeseen circumstances”. (Emphasis supplied.) The New Rule lays out in thorough and specific detail what does and does not constitute extraordinary unforeseen circumstances as well as strict procedural requirements and time limits. Once adopted, the New Rule’s impact will be profound on all civil litigants.New Rule
The New Rule 1.460
The new rule, with the current rule in strikethrough, states the following:
RULE 1.460. CONTINUANCES
A motion for continuance shall be in writing unless made at a trial and, except for good cause shown, shall be signed by the party requesting the continuance. The motion shall state all of the facts that the movant contends entitle the movant to a continuance. If a continuance is sought on the ground of nonavailability of a witness, the motion must show when it is believed the witness will be available.
(a) Motions to Continue Nontrial Events.
(1) Motions to continue nontrial events that are the subject of special set hearings before the court shall be in writing and signed by the client.
(2) The motion shall state with specificity:
(A) the factual basis of the need for the continuance;
(B) the proposed action and schedule to cure the need for continuance; and
(C) the proposed date by which the case will be ready for the scheduled event.
(3) The motion shall describe the potential effect of the requested continuance on remaining case management deadlines.
(b) Motions to Continue Trial.
(1) Motions to continue trial are disfavored. Once the case is set for trial, no continuance may be granted except for extraordinary unforeseen circumstances involving the personal health of counsel or a party, court emergencies, or other dire circumstances that provide extraordinary cause. Lack of preparation is not grounds to continue the case. Where possible, trial dates shall be set in collaboration with counsel and self-represented parties as opposed to the issuance of unilateral dates by the court.
(2) A motion to continue trial shall be in writing and signed by the client.
(3) Any motion to continue trial must be filed within 14 days after the appearance of grounds to support such a motion.
(4) The motion shall state with specificity:
(A) the factual basis of the need for the continuance;
(B) the proposed date by which the case will be ready for trial; and
(C) the proposed action and schedule that will enable the movant to be ready for trial by the proposed date.
(5) No motion to continue shall be granted upon any of the following grounds:
(A) failure to complete discovery;
(B) failure to complete mediation;
(C) outstanding dispositive motions;
(D) counsel or witness unavailability except where the record demonstrates new circumstances beyond counsel or witness control;
(E) withdrawal of counsel within 60 days of trial; or
(F) trial conflicts, which are subject to resolution under Florida Rule of General Practice and Judicial Administration 2.550.
(6) If amendment of pleadings or affirmative defenses is required due to extraordinary unforeseen circumstances supporting an order permitting such amendment, within 60 days before trial the amendment shall not serve as grounds for continuance where no additional discovery is required. If additional discovery is required, continuance shall not be granted except where cure is impossible. If discovery is required, it is the responsibility of the party seeking amendment to facilitate the needed additional discovery, and if the party fails to do so, the court may deny the amendment due to the interference with the trial date and the orderly progress of the case.
(7) Trial courts should utilize all remedies available to cure issues regarding the trial setting short of continuance, including requiring depositions to preserve testimony, remote appearance, and conflict consultations with other judges.
(8) All orders granting motions to continue shall state the factual basis, including the reason for the continuance, shall schedule the action required to resolve the need for the continuance, and shall set a new trial date. Counsel shall serve all orders granting continuances upon counsel’s clients. Counsel and self-represented parties shall be prepared to try the case on the trial date reset by the court.
(9) No case may be continued for a duration exceeding 6 months from its original trial date, except where the action required to cure the need for the continuance cannot be completed within 6 months. Findings regarding same shall be made on the record in any order of continuance.
(10) Orders granting or denying motions to continue shall benefit from presumption of correctness on appeal where the trial court has made factual findings regarding its ruling and shall only be reversed upon a finding of gross abuse of discretion.
Background of New Rule 1.460
The Florida Constitution vests the Supreme Court of Florida with the authority to adopt rules for the practice and procedure in all Florida state courts. Art. V, § 2(a), Fla. Const. In 2019, the Florida Supreme Court established the Workgroup of Improved Resolution of Civil Cases (the “Workgroup”) to make recommendations on the enhancement of civil case management processes in order to deliver justice in a timely, cost-efficient, and accountable manner while maintaining due process. See In re: Workgroup on Improved Resolution of Civil Cases, Fla. Admin. Order No. AOSC19-73 (Oct. 31, 2019); In re.: Workgroup on Improved Resolution of Civil Cases. Fla. Admin. Order No. AOSC20-75 (Aug. 4, 2020).
On November 15, 2021, the Workgroup issued its Final Report that included the New Rule. The Final Report, at over 300 pages, is extremely thorough and addresses many other rule amendments and other recommendations that are beyond the scope of this article. In February of 2022, the Florida Supreme Court issued an administrative order acknowledging the Final Report and extending the Workgroup’s term through December 22, 2022; the purpose of the extension was to allow for the filing of responses and for oral argument. See Workgroup on Improved Resolution of Civil Cases, Fla. Admin. Order No. AOSC22-3 (Feb. 1, 2022). The docket, which includes a pdf of the Final Report as the first docket entry, can be found at the Florida Supreme Court’s website under Case No. SC22-122.
Significantly, on January 12, 2023, the Florida Supreme Court declined to adopt the Workgroup’s proposed amendments because “additional refinements are necessary.” See In re: Report and Recommendations of the Workgroup on Improved Resolution of Civil Cases, Case No. SC22-122 (the last docket entry).
Most important, the Florida Supreme Court deemed the New Rule to be not restrictive enough. In a letter dated January 12, 2023 from the Hon. John A. Tomasino, the Clerk of Court of the Florida Supreme Court, to Mr. Lance V. Curry III, Chair of the Florida Civil Procedure Rules Committee, Mr. Tomasino stated:
…[T]he Committee is asked to propose amendments to rule 1.460 (Continuances) to provide that trial continuances should be rarely granted and then only upon good cause shown. The Committee’s proposal must provide that lack of preparation is not grounds to continue the case and that successive continuances are highly disfavored.
Id. at 8. (Emphasis supplied.)
Accordingly, when adopted, the New Rule quoted in this article will likely include additional language consistent with the Clerk of Court’s requested revisions.
Analysis of New Rule 1.460
I will now go over the New Rule as presently drafted in the order it is presented. I will only go over the portions that are new or significant.
Section (a) concerning Motions to Continue Nontrial Events merely adds procedural requirements for continuing special set hearing, none of which is onerous. Nonetheless, the next time you need to continue a special set, be sure to have a written motion signed by the client setting forth the basis for it, a plan to cure the need for the continuance including a new special set date, and how it will impact on the case management deadlines.
The main event is in section (b). In section (b)(1), after stating motions to continue trial are disfavored the New Rule states, “no continuance may be granted except for extraordinary unforeseen circumstances involving the personal health of counsel or a party, court emergencies, or other dire circumstances that provide extraordinary cause. Lack of preparation is not grounds to continue the case.” My guess is that section (b)(1) will be revised to comport with the Clerk of Court’s suggestions to state: “Motions to continue trial are disfavored and rarely granted and then only upon good cause shown. Once the case is set for trial, no continuance may be granted except for extraordinary unforeseen circumstances involving the personal health of counsel or a party, court emergencies, or other dire circumstances that provide extraordinary cause. Lack of preparation is not grounds to continue the case and successive continuances are highly disfavored.”
In any event, section (b)(1) is interesting for what it does not say. Once a case is set for trial, no continuance may be granted except for extraordinary unforeseen circumstances involving the personal health of counsel or a party; not the personal health of a member of your family or your client’s family, or anyone else. You cannot assume a death or illness in the family is the type of extraordinary unforeseen circumstances that will automatically warrant a continuance.
Section (b)(3) is a trap for the unwary, stating any motion to continue trial must be filed within 14 days after the appearance of grounds to support such a motion. So if you have extraordinary unforeseen circumstance involving your personal health or that of your client, you better get that motion filed in 14 days after the circumstance starts, or you may be denied the continuance for not timely filing it.
Section (b)(5) sets forth a list of grounds that do not warrant the granting of a motion for continuance. Three of them are particularly noteworthy.
First, section (b)(5)(A) provides failure to complete discovery is not grounds for a continuance. As anyone who has litigated for long knows, particularly in complex cases, completing discovery can be very difficult, especially if your opposing counsel is not complying with discovery requests, or fails provide expert witness disclosures, or fails to provide dates for depositions, and so on. You cannot assume that the failure to complete discovery due to the antics of opposing counsel is a sufficient basis for a continuance. File those motions to compel early and often.
Second, section (b)(5)(C) provides outstanding dispositive motions is not grounds for a continuance. Interestingly this may be directed more at judges than attorneys, as I think most attorneys would not delay preparing for trial hoping the court will grant their dispositive motions. In any event, perhaps this will get orders granting summary judgment issued faster.
Third, section (b)(5)(E) provides withdrawal of counsel within 60 days of trial (the “60 days”) is not grounds for a continuance. There are at least three traps for the unwary. First, judges will be very reluctant to allow counsel to withdraw within the 60 days because finding new counsel and getting new counsel up to speed before trial is often difficult. If you intend to withdraw, do so well before the 60 days. Second, you should file the motion to withdraw with enough time to get a hearing prior to the 60 days, as it is unclear if the motion has to be filed before the 60 days, or if the withdrawal itself has to be before then (I think it is the latter). My guess is a judge will err on the side of caution and deny your motion if the withdrawal itself would take place within the 60 days, regardless of when you filed the motion. Third, in circuit courts with large dockets, such as Broward County, your case may get assigned to a trial period, typically for a number of weeks or sometimes longer, and you then wait in line to be called for trial on a certain week or days (unless you get a date certain at the docket call). So does the 60 days start running when you are assigned to a trial period, and if so, on what day during the trial period? Or does it start when you know that actual trial date? Bottom line: File the motion to withdraw and set it for hearing as early as you can.
Finally, the New Rule forecloses reversal on appeal except for the most egregious judicial abuse involving a motion for continuance of a trial. Specifically, section (b)(10) provides orders granting or denying motions to continue shall benefit from presumption of correctness on appeal where the trial court had made factual findings regarding its ruling, and shall only be reversed on a finding of gross abuse of discretion. Given continuances are explicitly disfavored, I suspect trial court judges will routinely deny motions to continue trials knowing the denial would very likely be affirmed on appeal absent a gross abuse of discretion.
For better or worse, the New Rule will cut down trial continuances significantly. Cases will be going to trial earlier and more often. For now, the old rule remains in place, but sooner or later the New Rule, or an even more stringent version, will be adopted. Lawyers and judges will have to adapt, or suffer the consequences.