GARRETT, J.
The plaintiff, Barbara Amanda Queen, on behalf of her minor child, Shapell Queen, appeals from trial court rulings denying her motions for a continuance and for new trial, as well as granting an involuntary dismissal and sustaining an exception of prescription in favor of the defendants. For the following reasons, we reverse and remand for further proceedings.
On September 3, 2012, Barbara Queen was driving a vehicle occupied by her minor children, Ariel and Shapell Queen. Other passengers were Erica Howard and her minor child, Jakalah Howard. Queen was rear-ended by a vehicle driven by Andrea Kristen Lee, owned by Classic Stone Interiors ("Classic"), and insured by AmTrust Insurance Company of Kansas, Inc. ("AmTrust").
As the trial date approached, it appears that the plaintiffs' claims, except for those of Jakalah Howard and Shapell Queen, were being resolved. Jakalah's claims were later settled for $21,000.
On October 17, after the attorney was allowed to withdraw, the court had another telephone conference with defense counsel and Queen. Queen stated that she was hopeful she would have counsel by the trial date on Monday, but could not guarantee it. She said she would not be able to represent herself. Defense counsel stated that if Queen chose to represent herself, the defendants would waive the jury trial. Queen again stated that she needed legal representation and would not represent herself.
The court suggested moving the case to November 17, 2014, and stated it would not require the defendants to post any more costs for the jury and would make their subpoenas continuing, noting they had only issued two subpoenas. Defense counsel stated he was not inclined to agree to a continuance where Queen had chosen to fire her counsel close to trial, rather than her counsel choosing to withdraw. Queen stated the withdrawal was a mutual, decision between her and the attorney. She said that it was not in the best interest of her child to continue with him and she refused to give the name of the lawyer she thought might take the case.
The court informed Queen that there was no motion to continue before the court and she either had to appear at the trial with counsel or represent herself. Queen remained adamant that she needed legal counsel. She said she hoped to have counsel by Monday, but did not know if that would happen.
On October 20, 2014, the date of trial, Queen appeared in court unrepresented by counsel. Defense counsel announced ready for trial and stated that it would oppose any motion for continuance by Queen. Defense counsel also waived jury trial. An extensive discussion was held on the record regarding the withdrawal by Queen's attorney. Queen stated that she had not yet been able to secure new counsel, did not have her file from the attorney who had just withdrawn, and was not prepared to represent herself. The court noted that she would not be representing herself, but would be representing her 11-year-old daughter. According to the trial court, the matter had been set for trial since March, the defendants had made preparations and expended money on a jury bond and subpoenas, and the motion to withdraw was made 10 days before trial. The court determined that Queen had a college degree. However, Queen repeatedly stated she was not prepared to
On October 27, 2014, Douglas Stinson and Patrick Johnson enrolled as new counsel for Queen and her daughter. Also on that date, they filed a motion for new trial and, alternatively, for reconsideration. Queen argued that the motion to withdraw by the first attorney was filed less than one week before trial. She contended that there were clear grounds for the continuance. Queen, who now lives in Tennessee, had traveled to Louisiana the weekend before the trial, and had not received her file from her first attorney. She had no access to the child's medical information and no one had contacted the child's medical experts to appear at trial. Queen and her new counsel argued that the dismissal was prejudicial to her minor child, who suffered injuries in the accident.
The motion was argued on January 5, 2015. The defendants urged that it was Queen's fault that she did not obtain her file and secure new counsel. Queen urged that she had less than five days to hire new counsel prior to trial. Her new attorney stated that Queen contacted him prior to trial, but she did not have a copy of her file and he was not prepared to proceed with the trial on her behalf on such short notice. Queen contended that the judgment resulted in a miscarriage of justice for the claims of the minor child. Queen's attorney noted that the court had discretion, which should have been exercised in favor of a continuance.
The court found that there were no good grounds for the new trial, stating that Queen did not request a motion for continuance prior to trial and, at the point she did request a continuance, the defendants had waived the jury trial, which would have reduced the complications for Queen representing herself. The court stated that it had no option but to deny the motion for new trial.
Also, on October 27, 2014, Queen's new counsel refiled the lawsuit against the defendants. The defendants filed an exception of prescription, arguing that an involuntary dismissal did not interrupt prescription and it was as though the suit was never filed. Therefore, the claim had prescribed. The exception was granted by the trial court.
Queen appealed the denial of the motions for continuance and for new trial in docket number 50,366-CA, and the granting of the exception of prescription in 50,367-CA. The appeals were consolidated by this court.
Queen argues that the trial court abused its discretion in denying the motions to continue and for new trial. She argues that granting the continuance would have allowed her to obtain her file material from her original attorney and retain new counsel so that the minor child's claims could proceed to a trial on the merits with counsel. Under the particular circumstances presented in this case, we find that this argument has merit.
La. C.C.P. art. 1601 provides that a continuance may be granted in any case if
It is a well-established rule that the trial judge has wide discretion in acting upon a motion for continuance. The ruling will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. Sauce v. Bussell, 298 So.2d 832 (La.1974); Johnson v. Berg Mech. Indus., Inc., 36,913 (La.App.2d Cir. 5/16/03), 847 So.2d 216; Connor v. Scroggs, 35,521 (La.App.2d Cir. 6/12/02), 821 So.2d 542; Louisiana State Bd. of Dentistry v. Baker, 33,828 (La.App.2d Cir. 9/27/00), 768 So.2d 683. See also Roland v. Tedesco, 426 So.2d 175 (La.1983). An abuse of discretion occurs when such discretion is exercised in a way that deprives a litigant of this day in court. Louisiana State Bd. of Dentistry v. Baker, supra; Rainone v. Exxon Corp., 93-2008 (La.App. 1st Cir. 1/13/95), 654 So.2d 707, writ denied, 1995-0337 (La. 3/24/95), 655 So.2d 1340.
While recognizing the much discretion vested in a trial judge in the matter of granting or refusing continuances, it has never been held that such discretion is absolute or that it may be exercised arbitrarily. Appellate courts are vested with the right and duty to correct such errors by the trial judge in matters of this kind. However, it should be pointed out that appellate courts only interfere in such matters with reluctance and in what are considered extreme cases. Sauce v. Bussell, supra. See also Roland v. Tedesco, supra.
The trial court must consider the particular facts in each case in deciding whether to grant or deny a discretionary continuance. Some factors to consider are diligence, good faith, and reasonable grounds. Johnson v. Berg Mech. Indus., Inc., supra; Coffman v. Mainhardt, 602 So.2d 264 (La.App. 2d Cir.1992). Equally important is the defendant's corollary right to have his case heard as soon as is practicable. The trial court may also weigh the condition of the court docket, fairness to both parties and other litigants before the court, and the need for orderly and prompt administration of justice. Generally, a litigant whose lawyer withdraws at or near trial may be entitled to a continuance to employ another attorney. However, because the defendant's desire to have the case against him tried is also a factor, the claimant is not entitled to indefinite continuances simply because he is unable to secure counsel. Johnson v. Berg Mech. Indus., Inc., supra; Walker v. Aulds, 28,968 (La.App.2d Cir. 12/11/96), 685 So.2d 421; Gilcrease v. Bacarisse, 26,318 (La.App.2d Cir. 12/7/94), 647 So.2d 1219, writ denied, 1995-0421 (La. 3/30/95), 651 So.2d 845.
Because the discharge of one's lawyer is not, by itself, grounds for the postponing of another party's access to the courts for a decision in a pending action, the client bears the burden of showing other circumstances that would justify a continuance. For example, a reasonably diligent client's having fired his lawyer for unpreparedness could be "good" grounds for a continuance in the absence of counterbalancing circumstances. Rainone v. Exxon Corp., supra.
In Roland v. Tedesco, supra, a medical malpractice wrongful death case arose in 1976. The matter was set for trial in January 1982. The plaintiff's attorney died and the plaintiff was given a deadline
In Shields v. Crump, 499 So.2d 479 (La. App. 2d Cir.1986), writ denied, 501 So.2d 214 (La.1987), the plaintiff filed a personal injury suit in February 1984. A dispute arose between the plaintiff and her attorney, who withdrew in April 1985. Trial was set for December 1985, and the plaintiff received notice of the trial date in August 1985. Four days prior to trial, the plaintiff retained new counsel, who made an oral motion for continuance at trial, stating that the plaintiff had difficulty obtaining her file from prior counsel and they were not prepared to proceed. The motion to continue was denied. Because new counsel was not prepared to adequately represent the plaintiff, he withdrew and the plaintiff presented her own case in proper person. At the close of her testimony, the defense was granted an involuntary dismissal. The plaintiff appealed the trial court's denial of the continuance and granting of a dismissal. This court reviewed the supreme court jurisprudence on this issue, particularly Roland v. Tedesco, supra, and Brown v. Louisiana State Med. Ctr., supra, and stated:
Under similar circumstances, this court reversed the denial of continuances in Walker v. Aulds, supra, and in Louisiana State Bd. of Dentistry v. Baker, supra.
In Gilcrease v. Bacarisse, supra, the plaintiff filed suit in August 1985, for injuries allegedly sustained when the defendant struck the plaintiff's car from behind. From 1985 to 1993, the plaintiff went through five attorneys and the case was continued numerous times. In October 1993, the plaintiff appeared in court, in proper person, and requested another continuance, which was denied. The case was dismissed with prejudice. This court affirmed the trial court action.
Similarly, in Johnson v. Berg Mech. Indus., Inc., supra, the plaintiff filed a workers' compensation suit in 1996 and went through a succession of attorneys. The case was continued numerous times. At trial in 2002, the plaintiff appeared in proper person and requested a continuance, which was denied. That ruling was affirmed by this court.
Regarding motions for new trial, La. C.C.P. art. 1972 states in pertinent part:
La. C.C.P. art. 1973 provides that a new trial may be granted in any case if there is good ground therefor, except as otherwise provided by law.
The unique circumstances presented by this case and the jurisprudence discussed above show that the trial court abused its discretion in refusing to grant a continuance in favor of Queen. The accident at issue here occurred on September 3, 2012, and suit was originally filed on August 2, 2013. The defendants asked for a jury trial, which was set for October 20, 2014.
A genuine dispute arose between Queen and her original attorney over his representation of Queen's minor child. They appeared to mutually agree to the withdrawal by the attorney. The trial court allowed this withdrawal on October 16, 2014, four days before the scheduled jury trial. Given the fact that the record fails to show that the first attorney was prepared to go to trial a few days before the scheduled trial date, Queen had a reasonable and good faith reason for discharging her attorney and good grounds for seeking a continuance.
Queen, who lived out of state in Tennessee, informed the court that she had made efforts to hire another attorney, but could not guarantee that she would have new counsel, ready to try the case, on October 20. On the date of trial, Queen appeared in court, but informed the court that she had not obtained her file from the first attorney and had not yet been able to retain another attorney. At that point, the defendants waived jury trial and pressed for Queen to proceed unrepresented. It is significant to note that Queen was not representing herself, but was appearing on behalf of her minor child, who was entirely blameless for the rear-end collision which caused her injuries. Queen maintained, as she had consistently, that she was not prepared to proceed on behalf of the child without legal counsel.
The record shows that this was a first trial setting. The first attorney had not yet given Queen her file. There was no showing that Queen had repeatedly sought to continue the case or that she had frequently changed counsel. Queen was able to secure counsel within seven days of the original trial date. The trial court had another jury trial date available on November 17, 2014, and defense counsel stated that he was available on that date. The trial court also informed defense counsel that if the matter was passed to November, no further jury or subpoena costs would be incurred. Therefore, the defendants' argument is unfounded that a continuance would result in additional expense. We also note that, on the day of trial, the defendants waived their right to a jury trial in an effort to persuade Queen to proceed without counsel. There is no showing that the continuance would have resulted in significant prejudice to the defendants.
Under these particular circumstances, the trial court abused its discretion in refusing to grant a continuance. The court's action will result in a miscarriage of justice, not to Queen personally, but to the rights of the minor who was injured in this rear-end collision. Here, Queen had reasonable grounds to discharge the first attorney, she was diligent in securing new counsel, and there were reasonable grounds for requesting the continuance in this matter. Therefore, we reverse the trial court ruling and find that a continuance should have been granted in this case. Further, after wrongfully denying the motion to continue, the trial court erred in failing to grant a new trial as the plaintiff showed good ground therefor. That portion of the trial court judgment is also reversed.
Queen argues that the trial court erred in granting the defendants an involuntary dismissal on the grounds that Queen failed to prosecute her case at trial. She points out that she and her daughter appeared at trial, and no written motion to withdraw the demand for jury trial was filed by the defendants. This argument has merit.
La. C.C.P. art. 1672 provides in pertinent part:
A trial judge is vested with great discretion in dismissing a lawsuit with or without prejudice. Connor v. Scroggs, supra.
In this matter, Queen and her child were present in court, even though they were unrepresented by counsel. Queen refused to proceed without counsel, reasoning that this would not be in the best interest of the child. As discussed above, the trial court erred in failing to grant a continuance. The trial court further abused its discretion in entering an involuntary dismissal. That ruling is reversed, and Queen's suit against the defendants, on behalf of her minor child, is reinstated.
Queen contends that the trial court erred in holding that the second suit, filed after the involuntary dismissal, was barred by prescription. Because the trial court erred in failing to grant a continuance and in entering an involuntary dismissal, and because we have reinstated the original suit, we pretermit consideration of this argument.
For the reasons stated above, we reverse the trial court judgment failing to grant a continuance and a new trial to the plaintiff, Barbara Amanda Queen, on behalf of her minor child, Shapell Queen, and we reverse the involuntary dismissal of the plaintiffs' case. The plaintiffs' case is reinstated and the matter is remanded to the trial court for further proceedings. Costs in this court are assessed to the defendants, Andrea Kristen Lee, Classic Stone Interiors, LLC, and AmTrust Insurance Company of Kansas, Inc., individually and in solido.
REVERSED AND REMANDED.
CARAWAY, J., concurs with written reasons.
CARAWAY, J., concurring.
I do not view this matter as a situation involving the "discharge of one's attorney," over which the trial court has broad discretion in consideration of a continuance. The client is a minor, not Queen, so this is the case of the discharge of a minor's attorney by a tutor, who must manage the minor's civil actions and property as a fiduciary. La. C.C.P. art. 4061.1. The duty to act as tutor in a fiduciary capacity was breached by the forcing of the tutor into the role of legal representative at trial under the circumstances of this case. The trial judge, in a broad sense, is required to monitor the tutor's mismanagement of the minor's property and civil actions under the principles expressed in La. C.C.P. arts. 4234 and 4265 and to prevent such malfeasance if possible. The minor's interests were harmed by Queen's dispute with prior counsel. Yet her corrective actions for new counsel occurred without unreasonable delay. Therefore, I agree with reversal of the trial court's actions.
