TRIAL COURT DID NOT DENY DEFENDANT DUE PROCESS BY DENYING HIS MOTION TO QUASH SERVICE OF PROCESS DURING A HEARING DEFENDANT ADVISED HE WAS UNABLE TO ATTEND — ALTHOUGH DEFENDANT DID FILE A NOTICE OF UNAVAILABILITY, HE DID NOT MOVE FOR A CONTINUANCE

Padilla v. Capital One, N.A., 49 Fla. L. Weekly D1803 (Fla. 4th DCA Aug. 28, 2024):

The defendant challenged the trial court’s denial of his motion to quash service of process and the subsequent denial of his motion for sanctions and motion to dismiss. The court observed that the orders denying the appellant’s motion for sanctions and motion to dismiss were not appealable under Rule 9.130, and the court dismissed the appeal as to those orders.

The defendant claimed the trial court denied him due process, because the trial court scheduled the motion to quash at a time he had filed a notice of unavailability. However, the appellate court noted that the defendant failed to move to continue the hearing.

Although a notice of unavailability is useful to apprise the court and parties of potential scheduling conflicts and for assisting them in efforts to accommodate counsel, it is not an adequate substitute for obtaining a continuance order.

While the appellant apparently tried to attend the hearing by Zoom, the trial court had set the motion to be in person, and the defendant also failed to move to appear at the hearing using communication technology under Florida Rule of General Practice and Judicial Administration 2.530(b).

Because there was no transcript of the hearing and the trial court’s ruling came to the appellate court clothed with a presumption of correctness, the defendant failed to demonstrate reversible error.