Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JAMES B. NUTTER & COMPANY, ) ) Appellant, ) ) v. ) Case No. 2D19-3547 ) THE UNKNOWN HEIRS, ) BENEFICIARIES, DEVISEES, ) GRANTEES, ASSIGNEES, LIENORS, ) CREDITORS, TRUSTEES AND ALL ) OTHERS WHO MAY CLAIM AN ) INTEREST IN THE ESTATE OF ) STAFFORD COSBY a/k/a STAFFORD ) LEE COSBY; MELANIE DIANE ) COSBY; UNITED STATES OF ) AMERICA ON BEHALF OF ) SECRETARY OF HOUSING AND ) URBAN DEVELOPMENT; ANY AND ) ALL UNKNOWN PARTIES CLAIMING ) BY, THROUGH, UNDER, AND ) AGAINST THE HEREIN NAMED ) INDIVIDUAL DEFENDANT(S) WHO ) ARE NOT KNOWN TO BE DEAD OR ) ALIVE, WHETHER SAID UNKNOWN ) PARTIES MAY CLAIM AN INTEREST ) AS SPOUSES, HEIRS, DEVISEES, ) GRANTEES, OR OTHER CLAIMANTS, ) ) Appellees. ) ) Opinion filed March 31, 2021. Appeal from the Circuit Court for Lee County; Cynthia A. Pivacek, Judge. David Rosenberg and Jarrett Cooper of Robertson, Anshutz & Schneid, P.L., Boca Raton; and Scott W. Anderson of Johnson Daboll Anderson PLLC, Tampa, for Appellant. Roy W. Foxall of Roy W. Foxall, P.A., Fort Myers, for Appellee Melanie Diane Cosby. No appearance for remaining Appellees. LaROSE, Judge. James B. Nutter & Company (JBN) appeals a final foreclosure judgment entered by the trial court after denying JBN's unopposed motion for continuance. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). We reverse because the trial court abused its discretion in denying the motion. Background JBN filed a May 2018 complaint against the decedent's heirs to foreclose on a reverse mortgage executed by the decedent. The heirs filed an answer, affirmative defenses, and a motion for mediation. Thereafter, the trial court scheduled an afternoon nonjury trial for June 19, 2019. Seemingly, no action was taken on the heirs' mediation motion. In fact, only after JBN filed its own motion for mediation did the trial court enter an order scheduling mediation for June 13, 2019. The trial date remained unchanged. The parties reached a settlement at mediation. The mediator filed a confirming report on June 14, 2019. With the trial date fast approaching, JBN filed an unopposed motion for continuance, alerting the trial court to the settlement. JBN requested a six-month continuance "due to the need for a probate in order to have title cleared." As far as the parties were concerned, the foreclosure matter was resolved. -2- However, on the morning of trial, June 19, the trial court denied1 JBN's motion without hearing. A signed order was filed later in the afternoon. When the parties appeared before the trial court at 1:30 p.m., to their surprise, they learned that the motion had been denied and that their trial was going forward. JBN was unable to prove its case at trial; JBN's witness had left town, presuming that the trial court would, as a routine matter, grant the motion. The trial court would not grant JBN's ore tenus motion to continue due to the absence of JBN's witness.2 The trial court entered judgment in favor of the heirs. As a result, the mediator amended the mediation report to reflect that the parties' settlement was scuttled. Analysis We will set aside an order denying a continuance only "if we determine the trial court abused its discretion." Vollmer v. Key Dev. Props., Inc., 966 So. 2d 1022, 1029 (Fla. 2d DCA 2007) (quoting Myers v. Siegel, 920 So. 2d 1241, 1242 (Fla. 5th DCA 2006)). This is a daunting threshold to cross. See Canakaris v. Canakaris, 382 So. 2d 1197, 1203 (Fla. 1980) ("If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness."). Yet, it is not insurmountable. See Baron v. Baron, 941 So. 2d 1233, 1235 (Fla. 2d DCA 2006) 1The judge who entered the order was not the same one before whom the parties appeared for trial. 2Apparently, the trial judge was reluctant to undo the order entered by the other judge. -3- ("The decision whether to grant or deny a motion for continuance is generally left to the broad discretion of the trial court. However, that discretion is not unlimited."). Whether a trial court abused its direction in denying a motion to continue requires our examination of three factors: "1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted." Neal v. Swaby, 975 So. 2d 431, 433 (Fla. 2d DCA 2007) (quoting Baron, 941 So. 2d at 1235- 36); accord M.R. v. Dep't of Child. & Fam. Servs., 849 So. 2d 411, 413 (Fla. 2d DCA 2003) ("In determining whether the trial court abused its discretion in denying a motion for continuance, we consider whether the denial of the continuance created an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would have suffered any prejudice or inconvenience as a result of a continuance."). We conclude that the trial court should have granted the continuance. See, e.g., Reive v. Deutsche Bank Nat'l Tr. Co., 190 So. 3d 93, 94 (Fla. 4th DCA 2015) (concluding that the trial court "abused its discretion in denying the [unopposed] motion to continue the trial"). First, the denial of a continuance undoubtedly created an injustice for JBN. To avoid further litigation, the parties settled the case. All that remained was to address some probate-related issues. The trial court's denial of a continuance forced the trial to proceed and destroyed the parties' bargained-for expectations in their settlement. Neither party wanted this outcome, and both sought to avoid it with the unopposed motion. -4- Forcing the parties to try a case that they had settled is at odds with the "well-established policy in Florida that settlement agreements are highly favored in the law." Suess v. Suess, 289 So. 3d 525, 529 (Fla. 2d DCA 2019) (quoting Chovan v. Chovan, 90 So. 3d 898, 900-01 (Fla. 4th DCA 2012)); see Wells Fargo Bank, N.A. v. Lupica, 36 So. 3d 875, 876 (Fla. 5th DCA 2010) ("Foreclosures are equitable proceedings under Florida law and settlements between litigants are favored. The trial court's denial of Wells Fargo's unopposed motions flies in the face of these principles."). Second, the reason for the continuance motion was not reasonably foreseeable, nor was it the result of dilatory practices. Apparently, the parties forged their agreement after many hours of mediation. A settlement was not preordained. Dilatory tactics were also not at play. In fact, JBN filed its motion within a week of the trial date. And, recall, the trial court set the mediation date so close to trial. Cf. Baron, 941 So. 2d at 1236 ("[T]he underlying cause for the motion for continuance was unforeseen by the Father and his counsel. Neither the Father nor his counsel could have foreseen that either the court or counsel for the Mother would deliberately schedule an emergency evidentiary hearing with one business day's notice during a time when the Father's counsel had already notified everyone that she would be unavailable."). The record reflects that JBN moved promptly to continue the trial after a successful mediation. Third, we can discern neither prejudice nor injustice that would have befallen the heirs had the motion been granted. After all, they, too, agreed to a continuance. Therefore, we reverse the final foreclosure judgment and remand for further proceedings. See, e.g., Kincaid v. Dep't of Health & Rehab. Servs. of State, 673 -5- So. 2d 129, 130 (Fla. 4th DCA 1996) ("The trial court abused its discretion in denying the stipulated motion for continuance of the final hearing to determine whether appellant's parental rights should be terminated. The grounds asserted were not pretextual, were supported by record evidence, and demonstrated undeniable good cause. Moreover, there is nothing in the record suggesting collusive conduct by counsel-that the lawyers were simply engaged in foot-dragging to delay a scheduled trial."). Reversed and remanded for further proceedings. BLACK and STARGEL, JJ., Concur. -6-