Opinion
No. 77-428
Decided January 18, 1978.
Court procedure — Trial — Court of Claims — Continuance denied — Cause dismissed with prejudice — Abuse of discretion, when.
APPEAL from the Court of Appeals for Franklin County.
Walter and Ellie Curtis, husband and wife, filed a complaint in the Court of Claims on March 20, 1975, alleging that Mrs. Curtis was falsely and negligently arrested by the State Highway Patrol and detained without just or probable cause, causing her to suffer "immediate injury and harm, including medical and hospital expenses." Mr. Curtis claimed to have suffered loss of consortium, as a direct result of the actions alleged.
Notice was sent to counsel for the parties on July 6, 1976, that trial was set for August 20, 1976. Shortly before that date, however, plaintiffs' counsel informed the trial court that they would request a continuance. On August 20, plaintiffs moved for a continuance on the basis "that due to the present physical condition of the plaintiff, Ellie Curtis, she is unable to proceed with trial of the within cause at this time." A supporting affidavit from Mrs. Curtis' doctor was attached. Following that motion, with Mrs. Curtis present in the witness room but not in the courtroom, the trial court told plaintiffs' counsel to "discuss the matter in private with your client, and see what her wishes are." After a recess, plaintiffs' counsel reported to the trial court that "we cannot in good conscience permit Mrs. Curtis to go forward today." The continuance was denied.
The affidavit from Mrs. Curtis' doctor recited that she had been under his care for the past several years; "that the treatment rendered by him has been to alleviate extreme nervousness, hypertension, and emotional and cardiac problems"; that as a result Mrs. Curtis had been hospitalized on several occasions, "specifically for cardiac examination"; and "that, in his professional opinion, it is not advisable for * * * [Mrs. Curtis] to proceed with trial."
Thereupon, on defendants' motion, the trial court dismissed the cause with prejudice.
On appeal, the Court of Appeals found "no abuse of discretion on the part of the trial court in denying a continuance and dismissing the cause under the circumstances of this case," but that it was an abuse of discretion to dismiss the case with prejudice. The Court of Appeals modified the judgment of the Court of Claims "to provide that the dismissal is without prejudice," and remanded the cause to the trial court.
The allowance of a motion to certify the record brings the cause to this court.
Blakemore, Rosen Norris Co., L.P.A., and Mr. Jeffrey T. Heintz, for appellees.
Mr. William J. Brown, attorney general, and Mr. Gene W. Holliker for appellants.
As this court stated in State, ex rel. Buck, v. McCabe (1942), 140 Ohio St. 535, at page 537:
"A court has supervisory power and control over its docket. Independent of statute, as an incident to their authority to hear and determine causes, courts have power to grant continuances. Granting or refusing to grant a motion for continuance rests within the sound discretion of the court. * * *
"The basis for a continuance of an action rests upon the right of a party to have a reasonable opportunity to be present at the trial of his cause upon the merits, but without unnecessary delay. * * * Unreasonable delays cannot not be tolerated and continuances must be justified by the circumstances of the case." (Emphasis added.)
Guidelines for the granting of a continuance are enumerated in the second paragraph of the syllabus in State, ex rel. Buck, supra:
"To constitute a sufficient ground for a continuance because of the absence of a party it must appear that the absence is unavoidable, and not voluntary; that his presence at the trial is necessary; that the application is made in good faith; and that he probably will be able to attend court at some reasonable future time."
In the instant cause, the Court of Appeals found no abuse of discretion on the part of the Court of Claims in denying a continuance to the Curtises on August 20, 1976, and in dismissing the cause, absent some indication as to the reasonable duration of the continuance.
However, the appellate court did find that the Court of Claims abused its discretion in dismissing the cause with prejudice. In its opinion, the Court of Appeals stated that "in this case, there was no history of repeated continuances upon such assertions [illness], but, rather, this was the first trial date set, and the first continuance. There was nothing whatsoever in the record to suggest that the requested continuance was in any way a subterfuge on the part of the plaintiffs in order to gain time or to delay the proceedings. Rather, everything in the record indicates that the continuance was requested by plaintiffs in good faith, predicated upon the opinion of the attending physician of plaintiff Ellie Curtis."
We agree with the Court of Appeals that "under such circumstances, it is an abuse of discretion to dismiss the case with prejudice."
Accordingly, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
O'NEILL, C.J., HERBERT, CELEBREZZE, W. BROWN, P. BROWN, SWEENEY and LOCHER, JJ., concur.