Bowser v. BurchBowser v. Burch
After rejection of her compensation claim by the state administrators, plaintiff-appellant, Newrita Bowser, sued her former employer, defendant-appellee, Henry Burch, d/b/a Riverlands Health Care Center, for compensation benefits. Prior to trial she terminated thе employment of her former counsel, Robert R. Faucheux, Jr. He intervеned seeking recovery of advances for payment of costs and depositions. After trial the court dismissed plaintiff’s claim and cast plaintiff in judgment for $2,064.25 for advances made on her behalf by her former counsel for medical and deposition expenses.
The sole issue briefed on the appeal by plaintiff’s present appellant counsel is whether the trial judge abused his discretion in ordering the plaintiff to proceed to trial without the benefit of counsel. Given the circumstances involved here we affirm the trial court’s ruling.
On May 18, 1988, plaintiff, an LPN, filed suit allеging a slip and fall at work on June 30, 1987, and claiming total permanent disability. Aftеr being declared fit to return to full employment and discharged by her physiсians on October 13, 1987, defendant terminated weekly compensatiоn benefits on January 31, 1988.
After plaintiff applied for and obtained continuances of two previously held pre-trial conferences, аt a pre-trial conference held in December 1988, the trial judge set the case for trial on the merits on April 7, 1989. On plaintiff’s motion, the trial set fоr April 7, 1989 was reset for May 30, 1989. According to a letter filed as Inter-venor # 1, dаted April 5, 1989 (claimed by intervenor to have been received on May 9, 1989), plaintiff terminated her former counsel’s employment. The May 30, 1989 trial date was continued on the basis plaintiff needed time to retain new counsel. At the same time a status conference was set for June 20, 1989. Although the plaintiff per
On November 7, 1989, plaintiff again apрeared without counsel. She informed the court that she had turned her files over to her new counsel, Mr. Jenkins, the week before. In response, the trial judge said:
“.... I mean, we have so many trial dates that we can schedule these things. We’ve set status conferences, we’ve given time for you to employ counsel. Mr. Jones came here. He told me thаt he talked to you, that y’all were not able to reach any kind of agreement as to compensation, and that was back in June. You wеre given until July; this is November, and it’s time this ease move one way or the othеr, so I’m going to wait just long enough for her to make a phone call, but I’m nоt giving you any hopes that this case is going to be continued or anything else.... ”
The exercise of a trial judge’s discretion in granting or refusing a continuance should not be disturbed in the absence of abuse. LSA-C.C.P. Article 1601; Green v. Gary Memorial Hospital,
Given the record before us, particularly the fact plaintiff was given repеated opportunities to employ new counsel, but failed to dо so, we cannot say the trial judge abused his discretion. Further, in the absenсe of any specific or inferred reason for plaintiff’s failure to retain new counsel earlier, or the showing of specific prejudice from her failure to have assistance of counsel, we cannot say the trial judge erred in proceeding with the trial and, on the record before us, dismissing plaintiff’s claim. Accordingly, we affirm the trial court’s judgment.
AFFIRMED.