185 So. 3d 144
La. Ct. App.2016Background
- On Sept. 3, 2012, Barbara Queen was rear-ended while driving; her minor daughter Shapell was injured. Suit was filed Aug. 2, 2013 against the driver (Lee), vehicle owner (Classic Stone Interiors), and insurer (AmTrust).
- The defendants requested a jury; trial was set for Oct. 20, 2014 by pretrial order. Most plaintiffs’ claims settled before trial except claims for Jakalah (settled) and Shapell.
- Queen and her original counsel had a dispute; counsel moved to withdraw and the court granted withdrawal on Oct. 16, 2014 (four days before trial). Queen, who lives in Tennessee, said she was trying to hire new counsel but had not received the client file.
- On Oct. 20, 2014 Queen appeared unrepresented and asked for a continuance; the defendants waived the jury but opposed a continuance. The trial court denied the continuance, granted defendants’ motion for involuntary dismissal without prejudice for failure to prosecute, and later sustained an exception of prescription against Queen’s refiling.
- New counsel enrolled Oct. 27, 2014 and moved for a new trial; appeals followed from denial of continuance/new trial and from the prescription ruling. The appeals were consolidated.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by denying continuance after plaintiff’s counsel withdrew days before trial | Queen: withdrawal was mutual and counsel was unprepared; she exercised due diligence to obtain new counsel and needed continuance to get file and prepare; continuance would protect minor’s right to counsel and a day in court | Defendants: withdrawal was Queen’s choice; delay would prejudice defendants and disrupt scheduling; Queen had opportunity to represent herself after jury waiver | Reversed: court abused discretion; continuance should have been granted given first-trial setting, lack of prejudice, prompt efforts to retain counsel, and child’s interests |
| Whether denial of continuance required grant of new trial | Queen: denial caused miscarriage of justice and prejudiced minor’s claims | Defendants: Queen failed to move earlier and is responsible for replacing counsel | Reversed: new trial should have been granted because there were good grounds (denied continuance) |
| Validity of involuntary dismissal for failure to prosecute when plaintiff and minor present but unrepresented | Queen: she appeared with minor, refused to proceed without counsel, and had good grounds for delay; dismissal deprived minor of day in court | Defendants: plaintiff effectively failed to prosecute by refusing to proceed; court acted within discretion | Reversed: dismissal was an abuse of discretion; case reinstated |
| Whether refiling was barred by prescription after involuntary dismissal | Queen: dismissal was improper so refiling should not be barred | Defendants: involuntary dismissal without prejudice does not interrupt prescription; refiling prescribed | Not reached on merits — court reinstated original suit and pretermitted prescription issue |
Key Cases Cited
- Sauce v. Bussell, 298 So.2d 832 (La. 1974) (standards for appellate review of continuance denial)
- Roland v. Tedesco, 426 So.2d 175 (La. 1983) (trial court discretion and necessity to afford continuance to preserve day in court)
- Brown v. Louisiana State Med. Ctr., 472 So.2d 909 (La. 1985) (reversal where denial of continuance deprived party of day in court)
- Shields v. Crump, 499 So.2d 479 (La. App. 2d Cir. 1986) (trial court should usually grant continuance where counsel withdrew close to trial absent significant prejudice)
- Johnson v. Berg Mech. Indus., Inc., 847 So.2d 216 (La. App. 2d Cir. 2003) (factors bearing on continuance when parties changed counsel repeatedly)