Gilcrease v. Bacarisse

647 So. 2d 1219, 1994 WL 680251
CourtLouisiana Court of Appeal
DecidedDecember 7, 1994
Docket26318-CA
StatusPublished
Cited by23 cases

This text of 647 So. 2d 1219 (Gilcrease v. Bacarisse) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Gilcrease v. Bacarisse, 647 So. 2d 1219, 1994 WL 680251 (La. Ct. App. 1994).

Opinion

647 So.2d 1219 (1994)

Cherie G. GILCREASE, Plaintiff-Appellant,
v.
Stephen R. BACARISSE, et al., Defendant-Appellees.

No. 26318-CA.

Court of Appeal of Louisiana, Second Circuit.

December 7, 1994.
Rehearing Denied January 19, 1995.

*1220 Chris J. Roy, Alexandria, for appellant.

Bodenheimer, Jones, Klotz & Simmons by Harry Simmons, Lunn, Irion, Johnson, Salley & Carlisle, by Marshall R. Pearce, Shreveport, for appellee.

Before NORRIS, HIGHTOWER and VICTORY, JJ.

NORRIS, Judge.

The plaintiff, Cherie Gilcrease, appeals from a trial court judgment denying her motion to continue the trial and dismissing with prejudice her personal injury suit against the defendants, Stephen Bacarisse, his insurer, Safeco Insurance Company of America, and her UM carrier, State Farm Mutual Automobile Insurance Company. Finding the trial court did not abuse its discretion in denying Ms. Gilcrease's third request for a continuance, and noting her pattern of refusing to honor court deadlines, we affirm.

Facts and Procedural Background

On August 2, 1985, Ms. Gilcrease filed a petition for damages sustained the previous August when Stephen Bacarisse allegedly struck her car from behind. The court granted her request to proceed in forma pauperis. The defendants filed answers, denying that an accident occurred and requesting a jury trial. On August 13, 1985, Ms. Gilcrease's attorney, Jack Bailey, withdrew. She retained James Franklin on December 4, 1985, who withdrew on March 20, 1986, citing her lack of cooperation. On May 12, 1986, she employed Charles Rowe; he withdrew on April 21, 1988. For four months in late 1988, she retained James Johnson, who also withdrew. On March 13, 1989, Ms. Gilcrease, in proper person, filed a motion for extension of time to retain counsel; the court granted her an additional 15 days. The parties attended a pre-trial status conference on April 6, 1990 (Ms. Gilcrease in proper person), and trial was set for September 24, 1990. On September 18, less than one week before trial, James Graves enrolled as counsel for plaintiff and requested a continuance to prepare for trial. The court granted the continuance over the defendants' objections.

Following another pre-trial status conference held on July 2, 1991, the court set the trial for November 18, 1991. For undisclosed reasons, the court reset the trial date for May 11, 1992. However, a few weeks before trial, on April 21, 1992, Graves withdrew; the court gave Ms. Gilcrease 20 days to retain counsel. Because of the delay, on May 8, 1992, defendants filed a motion to suspend any legal interest from April 21, 1992 until the rendition of judgment; the court granted the motion. By August, Ms. Gilcrease still had not obtained counsel. The defendants had also tried unsuccessfully, since April of 1986, to depose her. For these reasons, on August 7, 1992, defendants filed a rule to show cause why her suit should not be dismissed. However, on August 24, 1992, Ms. Gilcrease failed to appear for the hearing on the rule. Defendants presented evidence and on August 27, the trial court dismissed the suit with prejudice.

The defendants subsequently learned that Ms. Gilcrease had not been served with either the rule to show cause or the judgment of dismissal. On November 4, 1992, they filed another rule to show cause why her suit should not be dismissed; the hearing was *1221 scheduled for December 7, 1992. Ms. Gilcrease appeared in proper person and the parties agreed to continue the hearing until February 8, 1993 for her to find an attorney. On that date, however, she appeared again without counsel, and the court scheduled a jury trial on the merits for May 10, 1993. In April, the defendants filed a motion to waive their request for a jury trial; the court granted the motion. On May 10, however, Ms. Gilcrease appeared in proper person and demanded a jury trial. Consequently, the court fixed a jury trial for October 11, which was later changed by the court to October 25, 1993.

Ms. Gilcrease wrote a letter to the trial judge (dated October 21 and delivered on October 22), seeking another continuance because she allegedly had been unable to retain counsel. She listed numerous attorneys and legal clinics she claimed to have contacted, but all had refused to take her case. She also stated that she suffered from severe depression and that her treating physician, Dr. Burda, had advised against representing herself at trial. She appeared in proper person on the day of trial and reurged the motion to continue. In response, the defendants filed a joint motion in opposition to the continuance and a joint motion to dismiss.

The trial judge noted that Ms. Gilcrease had been instructed many times to retain counsel or be prepared to represent herself, the trial had been set for some time, and the last time the parties were in court, he had "very carefully directed [her] to be prepared to proceed today." R.p. 251. The court considered the grounds for a continuance provided by La.C.C.P. arts. 1601 and 1602 and prior case law and concluded:

This case has been pending eight years. It's time for it to be tried. This is the only thing left on the docket. And as I said before, the jury venire has been waiting now for some 40 minutes after having seen a jury video film. And there comes a time when these matters need to be either tried or put to rest. I have considered the case in detail. Ms. Gilcrease, in my view, has had ample time to secure an attorney from 1984 to the present. And certainly since the spring of 1992, she has had, in my opinion, reasonable opportunity to obtain a lawyer. R.pp. 257-58.

The court denied plaintiff's request for a continuance. Ms. Gilcrease refused to proceed, and the court granted defendants' motion to dismiss the case.

Ms. Gilcrease filed a motion for a new trial in proper person on November 4, 1993, and the hearing was set for November 22. The hearing was continued until December 13. On December 2, Ms. Gilcrease retained an attorney, who represented her at the new trial hearing (and on appeal). The trial court denied her motion for new trial, finding no new evidence. A final written judgment was signed on December 29, 1993. Ms. Gilcrease appealed. By her sole assignment, she contends the trial court erred in refusing to grant her request for a continuance and dismissing the suit.

Applicable Law

A continuance may be granted on either peremptory or discretionary grounds. The peremptory grounds which require that a continuance be granted are not at issue in the instant case. La.C.C.P. art. 1602. Nevertheless, a continuance may be granted in any case if there is good ground therefor. La.C.C.P. art. 1601.

The trial judge must consider the particular facts in each case in deciding whether to grant or deny a continuance. Katz v. Melancon, 467 So.2d 1284 (La.App. 4th Cir.1985). Some factors to consider are diligence, good faith and reasonable grounds. Katz, supra; Sparacello v. Andrews, 501 So.2d 269 (La.App. 1st Cir.1986), writ denied, 502 So.2d 103 (1987). Equally important is the defendant's corollary right to have his case heard as soon as is practicable. Lambert v. Heirs of Adams, 325 So.2d 331 (La. App. 3d Cir.1975), writ denied, 329 So.2d 458 (1976). The trial judge may also weigh the condition of the court docket, fairness to both parties and other litigants before the court, and the need for orderly and prompt administration of justice. Keyes v. Johnson, 542 So.2d 209 (La.App. 3d Cir.), writ denied, 546 So.2d 1215 (1989).

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Cite This Page — Counsel Stack

Bluebook (online)
647 So. 2d 1219, 1994 WL 680251, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gilcrease-v-bacarisse-lactapp-1994.