POLLARD v. WALSH

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Docket Number

No. C-1149

Attorney(S)

Robert M. Vockrodt, for plaintiff-appellant. Ruth A. Buechler, for defendant-appellee.

Judges

MR. CHIEF JUSTICE PRINGLE delivered the opinion of the Court.

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Smart Summary

Factual and Procedural Background

Plaintiff sued in county court for damages to rented premises. Defendant answered and counterclaimed for a rent refund, return of security deposit, treble damages, and attorney's fees. Trial was continued twice; the third trial date was set for February 6, 1976. On the morning of trial plaintiff telephoned his attorney at 7:00 a.m. and said he was ill and could not attend. Plaintiff's attorney attempted to contact opposing counsel and the court, left messages, and experienced car trouble. At 9:05 a.m. defendant's attorney declined to agree to a continuance, obtained dismissal of plaintiff's claim, and secured entry of judgment on the counterclaim for $674.72 without taking testimony. The county court entered judgment; the district court affirmed. The Supreme Court of Colorado granted certiorari and reversed.

Legal Issues Presented

Whether the trial court abused its discretion by denying a continuance when the plaintiff failed to appear because of illness.
Whether a judgment entered against the plaintiff in his absence under those circumstances should be set aside.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Colorado Trading and Transfer Company v. Oliver, 20 Colo. App. 257, 78 P. 308 (1904)	That an application for a continuance is addressed to the sound discretion of the trial court and will not be disturbed absent a clear abuse.	Used to state the governing standard that continuance requests are within trial court discretion, requiring a showing of clear abuse to reverse.
Gallavan v. Hoffner, 154 Colo. 353, 390 P.2d 817 (1964)	Authority that failure to appear due to illness is good cause for a continuance and denial may be an abuse of discretion.	Cited as part of authorities establishing that illness is good cause, supporting the conclusion that denial was an abuse.
Rausch v. Cozian, 86 Colo. 389, 282 P. 251 (1929)	Authority that failure to appear due to illness is good cause for a continuance and denial may be an abuse of discretion.	Relied upon with other cases to show illness constitutes good cause for continuance and denial is abusive.
Lane v. Gooding, 63 Colo. 324, 166 P. 245 (1917)	Authority that failure to appear due to illness is good cause for a continuance and denial may be an abuse of discretion.	Cited along with other cases to support the principle that illness justifies continuance and denial was an abuse.

Court's Reasoning and Analysis

The Court began with the established rule that continuance requests lie within the trial court's sound discretion (Colorado Trading). It then noted controlling authorities holding that failure to appear because of illness constitutes good cause for a continuance and that denial under such circumstances is an abuse of discretion (Gallavan; Rausch; Lane). The Court reviewed the facts: plaintiff was advised by his doctor to remain in bed for three days including the trial date; he tried to notify his attorney the day before but reached him only on the morning of trial; plaintiff's attorney attempted to contact opposing counsel and the court early that morning and left urgent messages; defendant's counsel refused to agree to a continuance and obtained dismissal and judgment without taking testimony. Applying the cited authorities to these facts, the Court concluded the county court's summary denial of the continuance and immediate entry of judgment in plaintiff's absence was an abuse of discretion. The opinion also noted the trial court could have conditioned a continuance under C.R.C.P. 360, but that no such conditional continuance was offered before judgment was entered.

Holding and Implications

REVERSED

Direct effect: The Supreme Court reversed the district court's affirmance and remanded to the county court with directions to vacate the judgment against the plaintiff upon such reasonable and just terms as the county court may impose and to proceed to trial. The opinion does not purport to establish a new legal principle beyond applying existing Colorado authorities on continuances and illness as grounds for them.

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Charles Pollard v. Elaine F. Walsh

1. CONTINUANCE — Discretion of Court — Abuse — Reversal. An application for a continuance is addressed to the sound discretion of the trial court and, therefore, its decision in such matters will not be disturbed absent a showing of clear abuse.

MR. CHIEF JUSTICE PRINGLE delivered the opinion of the Court.

We granted certiorari here to review a district court's affirmance of a judgment rendered in the county court. We reverse.

Plaintiff's complaint in the county court alleged damages by defendant to the premises defendant rented from plaintiff. Defendant answered, counterclaiming for a rent refund, return of her security deposit, treble damages, and attorney's fees.

Trial was set in the county court for 9:00 a.m. on November 21, 1975. Plaintiff arrived nearly two hours late because his car had been stuck in the snow. The case was continued to December 19, 1975. Several days before that date, defendant requested and received a continuance due to the unavailability of her witnesses on the date set. The third date set for trial was 9:00 a.m. on February 6, 1976.

At 7:00 a.m. on February 6, 1976, plaintiff telephoned his attorney and informed him that he was sick and would be unable to go to court. Plaintiff's attorney unsuccessfully attempted to contact opposing counsel. He subsequently had a problem starting his car and had it towed to a dealership. At this point, plaintiff's attorney called the court to explain the situation and request a continuance. It was now 8:45 a.m. At 9:05 a.m., defendant's attorney returned plaintiff's attorney's call and plaintiff's attorney asked her to agree to a continuance. She declined, and in court requested and received dismissal of plaintiff's claim and entry of judgment in the amount of $674.72 on defendant's counterclaim (without taking of any testimony whatsoever).

The district court held that the county court had not abused its discretion in denying the continuance and plaintiff's subsequent motion to set aside the judgment.

[1,2] It is the rule in this jurisdiction that an application for a continuance is addressed to the sound discretion of the trial court and, therefore, its decision in such matters will not be disturbed absent a showing of clear abuse. Colorado Trading and Transfer Company v. Oliver, 20 Colo. App. 257, 78 P. 308 (1904). Applying that principle to the facts here, we find numerous cases have held that the failure of the plaintiff to appear because of illness is a good cause for continuance and a denial thereof is an abuse of discretion by the trial court. See, e.g., Gallavan v. Hoffner, 154 Colo. 353, 390 P.2d 817 (1964); Rausch v. Cozian, 86 Colo. 389, 282 P. 251 (1929); Lane v. Gooding, 63 Colo. 324, 166 P. 245 (1917).

At the hearing to set aside the judgment entered on the trial date in the plaintiff's absence, the evidence was that the plaintiff had been advised by his doctor to stay in bed for three days, a period which would include the trial date. The plaintiff tried to reach his attorney the day before the trial to advise him of his condition, but was unable to do so until the morning of trial. The testimony also showed plaintiff's attorney attempted to reach the defendant's attorney as early as 7:00 a.m. on the morning of trial, but got her answering service, which refused to give him her unlisted number. He left a message to call him back immediately but received no return call. [3] Under the circumstances of this case as pointed out in this opinion and applying the authorities cited above, it is apparent that denying plaintiff's request for a continuance and permitting a judgment to be taken against him in his absence was an abuse of discretion. Of course, as provided in the Rules of Civil Procedure, the trial court could, as a condition of granting the continuance, have imposed such conditions as it deemed reasonable and just. See, C.R.C.P. 360. But for the trial court to summarily deny the request for a continuance and immediately thereupon enter judgment as it did here was a clear abuse of its discretion.

The judgment of the district court is reversed and it is ordered to remand the cause to the county court, with directions to vacate the judgment against the plaintiff upon such reasonable and just terms as the county court may desire to impose and thereupon proceed to trial.