Opinion
2015 CA 0337
04-20-2016
FRANCIS L. ERNST, JR., INDIVIDUALLY AND AS TRUSTEE OF THE MARGARET L. ERNST LIVING TRUST v. LENUE GREEN
Joseph C. Bartels Victoria Lennox Bartels New Orleans, LA Attorneys for Plaintiff/Appellee Francis L. Ernst, Jr. Stanwood R. Duval Houma, LA Attorney for Defendant/Appellant Lenue Green
NOT DESIGNATED FOR PUBLICATION On Appeal from the Thirty-Second Judicial District Court In and for the Parish of Terrebonne State of Louisiana
No. 171749 The Honorable John R. Walker, Judge Presiding Joseph C. Bartels
Victoria Lennox Bartels
New Orleans, LA Attorneys for Plaintiff/Appellee
Francis L. Ernst, Jr. Stanwood R. Duval
Houma, LA Attorney for Defendant/Appellant
Lenue Green BEFORE: GUIDRY, HOLDRIDGE, AND CHUTZ, JJ. HOLDRIDGE, J.
On appeal, the essential issue is whether the trial court abused its discretion in denying a motion for continuance requested by a court-appointed attorney for the defendant, Lenue Green, who had been appointed less than two months prior to the trial date. For the reasons that follow, we vacate the trial court's judgment and remand for further proceedings.
FACTS AND PROCEDURAL HISTORY
This division of property case began in March 2014 when the plaintiff, Francis L. Ernst, Jr., individually and as trustee of the Margaret L. Ernst Living Trust, filed suit against Mr. Green, seeking to divide certain property that they owned in indivision. Plaintiff's verified petition suggested that Mr. Green's last known address in Theriot, Louisiana "appear[ed] abandoned, and [p]etitioner ha[d] been unable to locate [Mr. Green] at this address ... . Upon information and belief, [Mr. Green] ... reside[d] in North Carolina ... ." The petition also suggested that Mr. Green had not appointed any agent for service of process in Louisiana. Therefore, the plaintiff requested that an attorney be appointed to represent Mr. Green in the proceedings.
Chapter 2 of Title IX, of the Louisiana Code of Civil Procedure, entitled Partition When Co-owner an Absentee, governs a judicial partition when a co-owner is an absentee. Stewart v. Ogden, 2014-0097 (La. App. 4th Cir. 8/13/14), 147 So.3d 1181, 1185. This chapter only authorizes partition by licitation in partitions involving absentee co-owners. Here, the plaintiff's petition sought to partition the co-owned property both by licitation and in kind, which is prohibited by La. C.C.P. art. 4621.
Pursuant to the allegations and request made in the plaintiff's petition, the trial court appointed Clinton Schexnayder to represent Mr. Green as his appointed attorney in accordance with La. C.C.P. art. 4623. Once appointed, Mr. Schexnayder filed an answer to the petition on behalf of Mr. Green, which denied all allegations for lack of sufficient information. Mr. Schexnayder stated in the answer that after an attempt to locate Mr. Green, notice of the proceeding was published in the Terrebonne Parish newspaper; however, he received no response following the advertisement. Mr. Schexnayder further stated in the answer that he later spoke with Mr. Green by telephone, received his mailing address, and mailed a certified copy of the petition to him.
Pursuant to La. C.C.P. art. 4623, when the petition for a partition discloses that the plaintiff is entitled thereto, and that the absent and unrepresented defendant is an absentee who owns an interest in the property, the court shall appoint an attorney at law to represent the absent defendant and shall order the publication of notice of the institution of the proceeding.
Louisiana Code of Civil Procedure article 4624 requires that notice of the institution of the proceeding shall be published at least once in the parish where the partition proceeding is instituted in the manner provided by law.
On September 11, 2014, Mr. Schexnayder filed a motion and order to withdraw as counsel of record, which the trial court granted. The motion filed by Mr. Schexnayder, as Mr. Green's counsel of record, stated that Mr. Green had hired him as his private attorney, had paid him a retainer of $2,500.00, and "the unearned portion of attorney fees [would] be returned to Mr. Green." It further indicated that if Mr. Schexnayder was allowed to withdraw, Mr. Green would seek representation by another attorney.
On September 26, 2014, the trial court appointed a new attorney, Tanner Magee, to represent Mr. Green and set the matter for trial. Correspondence between Mr. Green and Mr. Magee, dated October 23, 2014, stated that Mr. Green intended to hire other counsel, Stanwood Duval. In additional correspondence dated November 7, 2014, Mr. Green informed Mr. Magee that he would be unavailable on the date of trial and to "[p]lease postpone the trial to a later date." Therefore, at the beginning of the trial on November 10, 2014, Mr. Magee filed a motion and order to terminate his appointment and he also made an oral motion for continuance to permit Mr. Green an opportunity to retain private counsel. The trial court refused to terminate Mr. Magee's appointment until after the hearing of evidence at trial and the rendition of judgment. The trial court denied Mr. Magee's motion for continuance even though Mr. Magee stated that he was not prepared to go to trial, that Mr. Green was not present, that Mr. Green was not served with notice of the trial date, and that he had only been appointed less than two months before the trial date. Following the trial, a judgment signed November 12, 2014, was rendered, which partitioned the property co-owned by the parties. The judgment partitioned some of the property in kind and other property by licitation. A motion to enroll as counsel of record was filed by Mr. Duval, Mr. Green's attorney of choice, and signed on December 18, 2014. Mr. Green now appeals through his retained attorney, Mr. Duval.
There was no authority for the trial judge to appoint an attorney to represent Mr. Green at this stage of the proceedings. Neither La. C.C.P. arts. 4623 nor 5091 allow for the appointment of an attorney at law to represent an individual who has made an appearance in a proceeding through his retained attorney.
The judgment rendered by the trial court is also improper in that it divided certain property by licitation and other property in kind. Under La. C.C.P. arts. 4621-4630, if a party is an absentee, the property may only be divided by licitation. See La. C.C.P. art. 4621. The property can only be divided in kind if the defendant timely answers through counsel of his own selection and prays for a partition to be made in kind pursuant to La. C.C.P. art. 4630. Since Mr. Green was not allowed to obtain an attorney of his own choice, the property could not be partitioned in kind. This Court does not have to address this issue in light of the fact that the judgment is being vacated and this matter is being remanded for a new trial.
LAW AND DISCUSSION
In the recent case of Howard v. Lee, 50,366 (La. App. 2nd Cir. 1/13/16), 185 So.3d 144, the Second Circuit discussed unique circumstances that govern the granting or denial of a motion for continuance.
La. C.C.P. art. 1601 provides that a continuance may be granted in any case if there is good ground therefor. La. C.C.P. art. 1602 states that a continuance shall be granted if, at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance.
It is a well-established rule that the trial judge has wide discretion in acting upon a motion for continuance. The ruling will not be disturbed on appeal in the absence of a clear showing of abuse of that discretion. Sauce v. Bussell, 298 So.2d 832 (La. 1974); Johnson v. Berg Mech. Indus., Inc., 36,913 (La. App. 2d Cir. 5/16/03), 847 So.2d 216; Connor v. Scroggs, 35,521 (La. App. 2d Cir. 6/12/02), 821 So.2d
542; Louisiana State Bd. of Dentistry v. Baker, 33,828 (La. App. 2d Cir. 9/27/00), 768 So.2d 683. See also Roland v. Tedesco, 426 So.2d 175 (La. 1983). An abuse of discretion occurs when such discretion is exercised in a way that deprives a litigant of his day in court. Louisiana State Bd. of Dentistry v. Baker, supra; Rainone v. Exxon Corp., 93-2008 (La. App. 1st Cir.1/13/95), 654 So.2d 707, writ denied, 1995-0337 (La. 3/24/95), 655 So.2d 1340.
While recognizing the much discretion vested in a trial judge in the matter of granting or refusing continuances, it has never been held that such discretion is absolute or that it may be exercised arbitrarily. Appellate courts are vested with the right and duty to correct such errors by the trial judge in matters of this kind. However, it should be pointed out that appellate courts only interfere in such matters with reluctance and in what are considered extreme cases. Sauce v. Bussell, supra. See also Roland v. Tedesco, supra.
The trial court must consider the particular facts in each case in deciding whether to grant or deny a discretionary continuance. Some factors to consider are diligence, good faith, and reasonable grounds. Johnson v. Berg Mech. Indus., Inc., supra; Coffman v. Mainhardt, 602 So.2d 264 (La. App. 2d Cir. 1992). Equally important is the defendant's corollary right to have his case heard as soon as is practicable. The trial court 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. Generally, a litigant whose lawyer withdraws at or near trial may be entitled to a continuance to employ another attorney. However, because the defendant's desire to have the case against him tried is also a factor, the claimant is not entitled to indefinite continuances simply because he is unable to secure counsel. Johnson v. Berg Mech. Indus., Inc., supra; Walker v. Aulds, 28,968 (La. App. 2d Cir. 12/11/96), 685 So.2d 421; Gilcrease v. Bacarisse, 26,318 (La. App. 2d Cir. 12/7/94), 647 So.2d 1219, writ denied, 1995-0421 (La. 3/30/95), 651 So.2d 845.
Because the discharge of one's lawyer is not, by itself, grounds for the postponing of another party's access to the courts for a decision in a pending action, the client bears the burden of showing other circumstances that would justify a continuance. For example, a reasonably diligent client's having fired his lawyer for unpreparedness could be "good" grounds for a continuance in the absence of counterbalancing circumstances. Rainone v. Exxon Corp., supra.
In Roland v. Tedesco, supra, a medical malpractice wrongful death case arose in 1976. The matter was set for trial in January 1982. The plaintiff's attorney died and the plaintiff was given a deadline by the trial court to obtain new counsel and to file a motion for continuance. This did not occur and, on the trial date, the court dismissed the suit. This court affirmed that decision, which was reversed by the Louisiana Supreme Court. Citing Roland v. Tedesco, supra, the
supreme court also reversed a similar decision ... in Brown v. Louisiana State Med. Ctr., 472 So.2d 909 (La. 1985).Howard, 185 So.3d at 148-50.
In Shields v. Crump, 499 So.2d 479 (La. App. 2d Cir. 1986), writ denied, 501 So.2d 214 (La. 1987), the plaintiff filed a personal injury suit in February 1984. A dispute arose between the plaintiff and her attorney, who withdrew in April 1985. Trial was set for December 1985, and the plaintiff received notice of the trial date in August 1985. Four days prior to trial, the plaintiff retained new counsel, who made an oral motion for continuance at trial, stating that the plaintiff had difficulty obtaining her file from prior counsel and they were not prepared to proceed. The motion to continue was denied. Because new counsel was not prepared to adequately represent the plaintiff, he withdrew and the plaintiff presented her own case in proper person. At the close of her testimony, the defense was granted an involuntary dismissal. The plaintiff appealed the trial court's denial of the continuance and granting of a dismissal. [The Second Circuit] reviewed the supreme court jurisprudence on this issue, particularly Roland v. Tedesco, supra, and Brown v. Louisiana State Med. Ctr., supra, and stated:
We read these Supreme Court decisions to strongly indicate that a trial court's discretion should usually be exercised in favor of granting a continuance to a plaintiff who is no longer represented by counsel so as to afford the plaintiff an additional opportunity to obtain counsel and to have a day in court, even though the plaintiff has not been diligent in obtaining new counsel. In the two cited cases, as in the present case, the plaintiff had not previously been granted a continuance and there was no indication of any significant prejudice to the defendant or to the court schedule if a continuance were to be granted.
Under similar circumstances, [the trial court's] denial of [a] continuance [was reversed] in Walker v. Aulds, supra, and in Louisiana State Bd. of Dentistry v. Baker, supra.
DENIAL OF A MOTION FOR CONTINUANCE
In his second assignment of error, Mr. Green argues that the trial court erred in denying his motion for continuance since he could not be present for trial. Mr. Green further asserts that he had reasonable grounds for his continuance request and the denial was an abuse of the trial court's discretion because this matter proceeded to the trial court without him having a right to choose his own counsel or having his appointed attorney be properly prepared to defend him at trial. The trial court denied Mr. Green's request for continuance even though there were several substantial factors weighing in favor of the request. These factors include: Mr. Green was not served with notice of the trial date; the trial date was set less than two months after Mr. Green gave notice that he was attempting to retain another attorney; the trial court appointed an attorney to represent Mr. Green when there was no legal basis for such an appointment; Mr. Magee advised the trial court that he was unprepared to represent Mr. Green at trial; Mr. Green could not be present at trial on such short notice; the relief requested by the plaintiff's petition was not available if Mr. Green was an absentee; and Mr. Green was not allowed to be represented by counsel of his own choice, since his retained attorney could not be present on the trial date.
See footnote 4, which explains that after Mr. Green had retained an attorney and his whereabouts were known, there was no basis in this civil partition case for the trial court to appoint an attorney.
See footnote 5, which explains that if Mr. Green was an absentee, the property could only be partitioned by licitation. --------
In civil matters as well as criminal matters, the right to counsel includes the right to legal representation of one's choice. The right to counsel of choice in civil cases is not absolute, but this right can be overridden only if it can be proven that there is a compelling reason to do so. Disaster Restoration Dry Cleaning, L.L.C. v. Pellerin Laundry Machine Sales Company, Incorporation, 2005-0715 (La. 4/17/06), 927 So.2d 1094, 1101. The record does not reflect any compelling reason for the trial court's denial of Mr. Green's motion for continuance so as to allow him an opportunity to be represented by the attorney of his choice. Indeed, the record is devoid of any basis to find a significant prejudice to the plaintiff or to the court schedule if a continuance was to be granted.
Initially, the trial court determined that Mr. Green was an absentee. Louisiana Code of Civil Procedure article 5251(1) defines an absentee, in part, as:
[A] person who is either a nonresident of this state, or a person who is domiciled in but has departed from this state, and who has not appointed an agent for the service of process in this state in the manner directed by law; or a person whose whereabouts are unknown, or who cannot be found and served after a diligent effort, though he may be domiciled or actually present in the state ... .The validity of the appointment of Mr. Magee depends on whether Mr. Green was an absentee at the time of the appointment.
Pursuant to La. C.C.P. art. 5251(1), Mr. Green was considered an "absentee" when the plaintiff initially filed his petition because Mr. Green was domiciled in Louisiana, but departed from the state without appointing an agent for service of process. Here, the record reflects that Mr. Schexnayder was appointed as Mr. Green's attorney in accordance with La. C.C.P. art. 4623 because of his absentee status. However, once Mr. Green formally retained Mr. Schexnayder as his private counsel, he was no longer considered an "absentee." He was a defendant with a hired attorney. The proceedings were no longer governed by La. C.C.P. art. 4621-4630, "Partition When Co-owner an Absentee," but were then governed by La. C.C.P. arts. 4601-4614 "General Dispositions." See La. C.C.P. art. 4630. Mr. Schexnayder's motion and order to withdraw indicates that at the time of filing, Mr. Green's whereabouts were known to the plaintiff and the trial court, making La. C.C.P. arts. 4623 and 5251(1) inapplicable. Mr. Green was no longer an absentee. If an absent defendant ultimately retains the appointed attorney as his/her private counsel, the appointed attorney's statutory authority and duties cease. See Lovett v. Brown, 2003-1749 (La. App. 3rd Cir. 6/30/04), 879 So.2d 406, 409. Therefore, when Mr. Green's attorney was allowed to withdraw as counsel on September 26, 2014, the trial court erred in appointing an attorney for him and further erred in not granting Mr. Green a continuance so that his retained attorney would have had sufficient time to properly prepare for trial.
Furthermore, a continuance appears to be warranted in this matter because there is no indication that Mr. Green had actual notice of the trial date until October 23, 2014, when he received notice from his improperly appointed attorney, Mr. Magee. This date was only seventeen days prior to the trial date, which would not have allowed Mr. Green or his attorney an opportunity to prepare for trial. The trial court denied Mr. Green's request for continuance on the grounds that "Mr. Green [was] aware of the hearings based on what's been presented in the record." However, the record contains no evidence that Mr. Green received official notice of the trial date. Both the appointed attorney for Mr. Green and the attorney for the plaintiff recognized the fact that due process requires a person to be officially notified of the trial date. The attorney appointed for Mr. Green was also concerned that Mr. Green was not properly served with notice of the trial date. Similarly, the attorney for the plaintiff acknowledged the lack of due process afforded to Mr. Green and questioned whether the trial court should proceed without Mr. Green receiving formal notice.
However, the evidence in the record shows a justifiable basis that entitles Mr. Green to a continuance because he attempted to exercise his right to choose an attorney, Mr. Duval, at a reasonable time, in a reasonable manner, and at the appropriate stage in the proceedings. See State v. Ventris, 2010-889 (La. App. 5th Cir. 11/15/11), 79 So.3d 1108, 1121. Although Mr. Duval did not enroll as counsel for Mr. Green prior to the trial date, in a letter to Mr. Green dated October 29, 2014, he stated it would be "impossible" for him to represent Mr. Green in this matter on that date, but if the trial was continued he could represent him.
Under the unique circumstances presented in this matter, the trial court abused its vast discretion in denying Mr. Green a continuance so that he could have retained another attorney after his attorney withdrew from his representation less than two months prior to the trial date. Even in cases where a party has fired their attorney shortly before the trial date, the appellate courts have held that the trial court should exercise its discretion to grant a continuance to allow a party to retain another attorney. See Howard, 185 So.3d at 149-50, (citing Rainone, 654 So.2d at 710).
Accordingly, there were reasonable grounds for Mr. Green to request a continuance in this matter, as Mr. Green was not served with a formal notice of the trial date, he had an attorney improperly appointed to represent him when he was not an absentee, he informed the trial court that neither he nor his retained attorney could be present at the trial date, which was set less than two months after the court allowed his prior attorney to withdraw, and this was the first continuance requested. Considering all of the grounds presented in favor of granting a continuance, and the lack of showing of any prejudice to the plaintiff or disruption of the court schedule, the denial of a continuance to Mr. Green was an abuse of the trial court's discretion and the judgment rendered by the trial court should be vacated to allow Mr. Green his day in court with his retained attorney.
CONCLUSION
For the foregoing reasons, we find the trial court abused its discretion in denying Mr. Green's motion for continuance. Therefore, the judgment of the trial court is hereby vacated, and the case is remanded for additional proceedings. All costs are assessed to Francis L. Ernst, Jr., individually and as trustee of the Margaret L. Ernst Living Trust.
VACATED AND REMANDED.