Barish v. Metropolitan Government of Nashville & Davidson County

*954OPINION

CONNER, Judge.

(Filed with concurrence of participating judges)

The principal issue presented is whether the trial court erred by refusing to grant the plaintiff-appellant, Sylvia Barish,1 a continuance in order to seek counsel after the trial court had permitted her former lawyer to withdraw four days before trial. Plaintiff also contends the trial judge procedurally erred in dismissing the plaintiff’s complaint pursuant to T.R.C.P. 41.02 when she appeared pro se and offered no proof on the date of trial.

Mrs. Barish filed suit on May 17, 1979, claiming that certain of her improved properties had been ordered destroyed by the Metropolitan Government and Davidson County Codes Administration in an arbitrary and capricious manner. Plaintiff sought relief from these orders, and she requested restraining orders to prohibit the defendant from proceeding to destroy the houses or taking any further action. Thereafter, she filed three other similar actions. The four cases were then consolidated. In all, there were ten houses belonging to plaintiff involved.

The defendant filed a motion for summary judgment. It was denied. Thereafter, the consolidated cases were set for trial on April 1, 1981.

On March 12, 1981, plaintiff’s counsel, William H. Poland, filed a notice of withdrawal of counsel stating that the plaintiff had discharged him. He filed a motion to be relieved as counsel on March 20. This motion was heard on March 27, and granted. However, the order relieving Mr. Poland was not entered until April 1,1981, the trial date.

Mrs. Barish appeared before the chancellor, stated that she had been unable to find an attorney, and asked for a continuance. The request was denied. The plaintiff presented no evidence on her behalf. Therefore, the court dismissed her consolidated complaints. Plaintiff appealed.

Since the trial date plaintiff has attempted to stop the demolition of her houses and has sought post-judgment relief here and in the trial court. All such requests have been denied. All but two of the subject houses have now been destroyed.

Plaintiff first asserts that it was error for the trial judge not to grant the continuance to allow her to obtain new counsel. We well recognize that a trial court ordinarily has a broad discretion in the grant or the denial of a continuance and that the trial judge’s decision will not be set aside unless there is a clear showing of abuse. Tipton v. Smith, 593 S.W.2d 298, 301 (Tenn.App.1979). However, lawsuits should not be dismissed absent a hearing on the merits except in most urgent circumstances. Holt v. Pitts, 619 F.2d 558 (6th Cir. 1980); see also C.. Wright, Law of Federal Courts, § 97 (1970).

The record reveals that the order relieving prior counsel was entered the same day as the trial, having been granted only four days before. The record further indicates that Mrs. Barish had attempted to find counsel during the period after Mr. Poland was relieved, all to no avail. The record also suggests that Mrs. Barish may have wrongfully failed to cooperate with her previous counsel. This would clearly be a proper basis for Mr. Poland’s withdrawal and no solace to Mrs. Barish in an attempt to gain a continuance. If this were not so, then every litigant could keep changing lawyers shortly before trial, seek and obtain a continuance and never have to face the “day of reckoning.”

It is quite possible that the chancellor was aware of circumstances which are not *955fully apparent in this record in denying the plaintiffs request for a continuance. However, from the state of this record we are unable to tell precisely what they were and whether there was an abuse of discretion in not granting the continuance. In view of the gravity of the chancellor’s actions on plaintiff’s rights, we believe this cause should be remanded for an evidentiary hearing on the very limited questions of why plaintiff’s counsel sought to be relieved at such a late date and whether Mrs. Barish used due diligence in attempting to retain new counsel.

If on remand the chancellor should determine either that Mrs. Barish did not exercise due diligence in attempting to locate new counsel or that she precipitated the withdrawal of her previous counsel so close to the trial date by failure of cooperation or in some other like fashion, we are satisfied there could be no abuse of the trial court’s discretion — even in exercising the drastic remedy of dismissal. However, should the chancellor determine that Mrs. Barish was not responsible for the loss of her first attorney and did the best she could to find a new barrister upon his release from the case so near the trial date, we believe she would be entitled to a reasonable period within which to obtain replacement counsel and a hearing on the merits.

Also, the plaintiff contends that the trial court erred by dismissing her complaint pursuant to T.R.C.P. 41.022 before allowing her a full hearing while being represented by counsel. We believe this contention to be without merit.

The case was properly set for trial on the appointed date. At that time the plaintiff failed to carry her burden of proof. Indeed she presented no evidence at all. Assuming arguendo the denial of the continuance was proper, it made absolutely no difference whether the suit was dismissed on the defendant’s motion or the court’s motion. There is no absolute right to counsel in a civil trial. See U.S.Const. amend. VI; Tenn.Const. Art. I, § 9. Cf. Lassiter v. Department of Social Services of Durham County, North Carolina, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981); Turner v. Steward, 497 F.Supp. 557 (E.D.Ky.1980); State v. Tyson, 603 S.W.2d 748 (Tenn.Cr.App.1980).

Accordingly, we remand this matter to the trial court for an evidentiary hearing on the responsibility of plaintiff for Mr. Poland’s withdrawal as counsel, and, thereafter, whether she exercised due diligence in seeking a new attorney. The chancellor should make specific findings on these questions. In the event the trial court should determine that Mrs. Barish was not responsible for the withdrawal of prior counsel and that she thereafter used due diligence in seeking a new attorney prior to April 1, 1981, the case should be reinstated on the docket for trial. Otherwise, the chancellor’s original action in dismissing the matter should be affirmed and an order to that effect so entered. By this remand to the trial court for the limited purposes set forth herein we do not intend to make available to plaintiff the remedy of nonsuit. The costs are to be divided equally between both parties.

MODIFIED AND REMANDED.

*956LEWIS, J., concurs. THOMAS A. SHRIVER, Special Judge, dissents in part.

. Hereinafter the parties will be referred to as in the trial court or by their names, as abbreviated.

. Involuntary Dismissal — Effect Thereof. — (1) For failure of the plaintiff to prosecute or to comply with these rules or any order of court, a defendant may move for dismissal of an action or of any claim against him.

(2) After the plaintiff, in an action tried by the court without a jury, has completed the presentation of his evidence, the defendant, without waiving his right to offer evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. The court as trier of the facts may then determine them and render judgment against the plaintiff or may decline to render any judgment until the close of all the evidence; in the event judgment is rendered at the close of plaintiff’s evidence, the court shall make Endings of fact if requested in writing within three (3) days after the announcement of the court's decision.

(3) Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivision and any dismissal not provided for in this Rule 41, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication upon the merits. (Emphasis supplied.)