concurring and dissenting.
I agree with and concur in that portion of the majority opinion which affirms the order of the trial court denying plaintiffs’ motion for continuance.
It is a well-established principle that a motion for continuance is addressed to the trial judge’s sound discretion. Krepcik v. Tippett, 109 Idaho 696, 710 P.2d 606 (Ct.App.1985). Therein the Court of Appeals further held that the exercise of such discretion will not be disturbed on appeal unless it was so arbitrary that it deprived a litigant of a fundamentally fair trial. It was further noted in that case that the trial court articulated his reasons for denying the continuance and that the facts in the record amply supported the judge’s denial of the continuance. In the instant case the judge, as pointed out in the majority opinion, amply articulated his reasons for denial of the continuance. The facts in the record sustain the judge’s denial of the continuance, and his reasons therefore.
I disagree with and dissent from that portion of the majority opinion which holds that the trial court erred in its dismissal of plaintiff’s case with prejudice. In my view the trial court was correct in dismissing the *735action on the basis of his well-articulated reasons. I disagree with the majority that it was only the argument of the defense counsel that persuaded the trial court that plaintiffs could not make out a prima facie case. On the contrary, the trial court’s reasons are set forth in the majority opinion, and indicate that it was the plaintiff who made the judicial admission that he could not go forward with his case without the testimony of an expert witness. The record demonstrates that the assertion of the trial court is correct.
It is my view that the majority opinion incorrectly characterizes the trial judge’s action as a directed verdict, and hence improper, since such can only be done at the conclusion of plaintiff’s case. After the motion for continuance was denied, plaintiff’s counsel admitted on the record that he had no prima facie case to present, and could not prosecute the action.
The genesis of this action dates back to January of 1979, and the actions which defendant allegedly failed to take in his representation of his then clients, the Atkinsons and the Spanbauers. The Atkinsons subsequently became insolvent and their interest in the present action is represented by the trustee in bankruptcy. The present action against the defendant alleging professional malpractice was filed in October, 1983.
In July, 1985, the district court ordered a jury trial to commence July 16, 1986. A pretrial schedule ordered all pretrial motions and discovery to be completed 42 days before the trial, and each attorney was to certify an exchange of information including their expert and non-expert witnesses. On June 16, 1986, plaintiffs, in answer to interrogatories, indicated that their expert witness, a lawyer from Portland, Oregon, would testify that defendant had been guilty of professional malpractice. On June 27, 1986, plaintiffs advised defendant that the Oregon lawyer would not so testify, but rather their expert witness testifying as to defendant’s malpractice would be Ellis, a Boise lawyer.
The record contains no information from the Portland, Oregon attorney substantiating plaintiffs’ claim that the Portland attorney had agreed to appear and testify as an expert witness concerning defendant’s alleged malpractice. However, the record does contain an affidavit from the Boise attorney Ellis. Therein Ellis states that he had been contacted by plaintiffs to render an expert opinion regarding defendant’s alleged malpractice. His affidavit, however, differs considerably from the assertions of the plaintiffs. Ellis states that while plaintiffs indeed sought his opinion as to defendant’s alleged malpractice, he had declined to do so unless, and until he received sufficient documentation upon which to base an opinion. Ellis states that plaintiffs’ counsel did not furnish such documentation until the evening before trial, July 15, 1986. The following morning during the course of the trial proceedings Ellis delivered a message to plaintiffs’ counsel that he was unable to testify as desired by plaintiffs.
In the meantime, on July 2, 1986, defendant had filed a certificate of compliance with the pretrial order of the court listing witnesses, both expert and non-expert, and exhibits to be used at trial. No similar certificate was ever filed by plaintiffs.
It is clear to me at least, that an integral and necessary part of a plaintiff’s burden of proof in a professional malpractice case is an opinion by a qualified expert witness that the defendant’s conduct fell below the standard of care to be reasonably expected of such professional, and thus constituted malpractice. McKee Electric Company, Inc. v. Carson Oil Company, 301 Or. 339, 723 P.2d 288 (1986); York v. Stiefel, 109 Ill.App.3d 342, 64 Ill.Dec. 888, 440 N.E.2d 440 (1982); Wright v. Williams, 47 Cal.App.3d 802, 121 Cal.Rptr. 194 (1975). It was equally clear to the trial judge and to plaintiffs’ and defendant’s counsel, that plaintiffs had no such expert testimony at the time of trial. The trial judge was faced with a dilemma, no part of which could be attributed to the court or to defense counsel. The dilemma resulted solely from the failure of plaintiffs’ counsel to comply with numerous portions of the pretrial order, and his failure to adequately prepare plaintiffs’ case.
*736The trial court could have granted a continuance, which he refused to do, and his refusal is upheld and affirmed by the majority opinion. The trial court could have permitted plaintiffs to put on evidence which would not have satisfied the requirements of a prima facie case. Thereafter, as noted by the trial court, he would have had no alternative but to grant a directed verdict to the defendant, and also award costs and attorney fees to defendant. See I.R.C.P. 50(a). As noted by the trial court, plaintiffs were insolvent, and hence there was little if any prospect of defendant recovering any such costs or attorney fees. If as plaintiffs now assert, the trial court should have permitted them while trial was proceeding to solicit and obtain still a third expert witness to testify as desired by plaintiffs, the right of the defendant to depose or otherwise examine such witness would have been abrogated. Defendant would be denied the right to properly and adequately prepare his case.
In Jensen v. Doherty, 101 Idaho 910, 623 P.2d 1287 (1981), the Court held that the granting of an involuntary dismissal lies within the sound discretion of the trial court, and that imposition of the sanction will stand absent abuse of that discretion. The Court stated: “It is a necessary final recourse available to the Court to protect its processes and other litigants from abuse. It is a remedy to be sparingly used, but it is always available.” I would hold that there is no such abuse of discretion upon the record in the instant case. The trial court amply set forth his reasons for his order, and those reasons are supported in the record. As stated in Viehwig v. Thompson, 103 Idaho 265, 647 P.2d 311 (Ct.App.1982): “A well-founded public outcry over delay in the administration of justice now requires that judges at all levels play an active role in managing their calendars.” The record discloses that the trial court was doing precisely that.
While there is much to be said regarding the desirability of adjudicating a case on its merits, such should not be the result if it deprives the adverse party of substantial rights, or deprives other litigants of the right to present their cases in a timely fashion. This case was not determined below on its merits solely because of the action or non-action of plaintiffs. It is perhaps the height of irony that the case in which counsel failed to prepare and failed to follow the orders of the trial court is one in which plaintiff was alleging the professional malpractice of his former legal counsel.
I would affirm the orders of the trial court dismissing the complaint with prejudice, and would grant costs and attorney fees on appeal to the defendant.