Rymer v. Pool

WAGNER, Associate Judge,

dissenting:

Unquestionably, it is well settled in this jurisdiction that “[a] motion for continuance is ... addressed to the sound discretion of the trial court, and its ruling will be reversed only for a clear abuse of discretion.” Harris v. Akindulureni, 342 A.2d 684, 686 (D.C.1975); accord, Hairston v. Gennet, 501 A.2d 1265, 1268 (D.C.1985). However, there are some circumstances where denial of the request for continuance will be reversible error. Feaster v. Feaster, 359 A.2d 272, 273 (D.C.1976); see Hairston, 501 A.2d at 1268; see also Harris, 342 A.2d at 686. I disagree with the majority that this is not such a case.

The record reflects that after pursuing with diligence for more than four years her complaint of fraudulent inducement to marry and unjust enrichment against ap-pellee,1 one month before the scheduled *375trial date, appellant, a resident of the U.S. Virgin Islands, filed a written motion for a continuance of 120 days because her poor health and limited resources prevented her attendance at trial. In the motion, counsel represented that appellant was a clerk in a hotel gift shop and that “[h]er financial means are severely limited.” For these reasons, on the advice of counsel, appellant sought a continuance and an opportunity to present her trial testimony by deposition, pursuant to Super.Ct.Civ.R. 32(a)(3)2 Two days before the scheduled trial date, appellant’s counsel appeared in court on the motion for continuance, and at the court’s request, provided a copy of a medical report indicating that appellant had a “chronic duodenal ulcer disease with a residue of inflammatory process in the antrium.” Appellant had written counsel a letter, which he also presented to the court, stating “[i]t is over one year and I am still not better.” Appellee’s counsel was not present when the motion for continuance was argued, but his written opposition challenged appellant’s reliance on Super.Ct.Civ.R. 32(a)(3) and the lack of exceptional circumstances to support appellant’s request to present her trial testimony by deposition. The record reflects no challenge by appellee to the truthfulness of appellant’s claims of illness and im-pecuniosity.

In determining whether the trial court abused its discretion in denying a continuance, a number of factors are pertinent, including the reasons for the request and the prejudice resulting from its denial. Joyner v. Jonathan Woodner Co., 479 A.2d 308, 312 (D.C.1984). Also relevant are the movant’s diligence in seeking relief and any lack of good faith. Harris, supra, 342 A.2d at 686. Appellant’s uncontested representation that her illness and poverty prevented her attendance on the scheduled trial date, standing alone, is sufficient for a finding that the trial court abused its discretion in denying her first request for a continuance during four years of litigation. See Feaster, supra, 359 A.2d at 273. In addition, there are present in this case other factors weighing heavily in favor of granting the continuance and no persuasive reasons weighing against it: (1) a record demonstrating appellant’s prior diligence in prosecuting her claim: (2) prior delays caused only by appellee; (3) severe prejudice to appellant who would be denied an opportunity for a trial on the merits (unless she could make arrangements in two days to fly in from the Virgin Islands in spite of her claims of illness and poverty); (4) a prompt request for relief;3 and (5) the lack of any showing of specific prejudice to appellee resulting from a delay. See Harris, supra, 342 A.2d at 686-87 (trial court abused its discretion in de*376nying continuance of trial date where counsel moved promptly for relief and no evidence of lack of good faith or specific prejudice to appellee shown); see also Hairston, supra, 501 A.2d at 1268 (an important factor for review of a denial of continuance is relative prejudice to the parties). Additionally, the law favors an adjudication on the merits. Surowitz v. Hilton Hotels Corp., 883 U.S. 363, 373, 86 S.Ct. 845, 851, 15 L.Ed.2d 807 (1966); Milton Properties, Inc. v. Newby, 456 A.2d 349, 353 (D.C.1983); Walker v. Smith, 499 A.2d 446, 448-49 (D.C.1985). Considering this principle, the factors favoring the grant of the continuance request, and the absence of factors weighing against it, in my view, the record shows that the continuance should have been granted and that the trial court clearly abused its discretion in denying it. Therefore, I respectfully dissent from the decision of the court holding otherwise.

. In the proceedings below, appellee originally was defaulted. Appellant traveled to the District to appear for her first trial date; however, ,on the day of trial, appellee made an oral motion to dismiss for failure to state a claim upon which relief can be granted. See Super.Ct.Civ.R. 12(b)(6). The trial court dismissed the case, and appellant appealed. See Rymer v. Pool, 574 A.2d 283 (D.C.1990). This court reversed and remanded, instructing the trial court to make a choice-of-law decision. Id. at 285. The trial court held a hearing on the issue on October 9, 1990 and directed the parties to submit legal memoran-*375da by October 24, 1990. The court ruled on October 29, 1990 that the case would proceed to trial under the law of the Virgin Islands. On November 9, 1990, appellant filed her motion for continuance of the trial date scheduled for December 6, 1990.

. There is some dispute about whether the procedure is available to appellant; however, I agree with the majority that we need not resolve it to rule upon the propriety of the trial court’s denial of appellant's request for continuance. There is at least a legitimate dispute regarding the construction of Super.Ct.Civ.R. 32(a)(3) and whether appellant can avail herself of its provisions. See Richmond v. Brooks, 227 F.2d 490, 492-93 (2d Cir.1955).

. Although appellant did not strictly follow Super.Ct.Civ.R. 40-I(e) by making her motion for continuance in open court five days before trial, appellant's written motion seeking relief filed one month in advance of the trial date not only demonstrated her diligence, but apprised the court and the opposing side of her need for a continuance well before the time specified in the rule, thereby avoiding some of the prejudice which might result from a truly last minute request for continuance.