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Ramsdell v. Doliber9/29/2003
Essex.
November 18, 2002
Practice, Civil, New trial, Assistance of counsel, Default, Continuance. Judge.
On April 18, 1989, in a bar fight with the defendant, the plaintiff's decedent, Robert Arsenault, suffered head injuries and died two days later. This wrongful death action was commenced on May 17, 1989. Following the eventual jury trial, a Superior Court jury awarded the plaintiff compensatory and punitive damages. Benjamin G. Doliber appeals from the trial judge's denial of the defendant's motion for a new trial without a hearing. The defendant claims that the orders denying a continuance and mistrial resulted in an injustice because he was required to commence trial without his attorney, that plaintiff's closing argument was prejudicial, and that the verdict was excessive and against the weight of the evidence.
Background.
We summarize the information that was before the motion judge (who was also the trial judge), when he denied the defendant's motion for a new trial. The civil case was almost ten years old when it was scheduled for trial on September 14, 1998. This trial date was continued to September 21, 1998, at the behest of Doliber's trial counsel, Willie J. Davis (Mr. Davis). Soon after this continuance, Mr. Davis filed a motion seeking a further postponement. In his affidavit in support of the motion, Mr. Davis stated that his mother-in-law's death, around Labor Day, required him to accompany his wife, the administratrix of the estate, to North Carolina, where his mother-in-law had resided, "very soon in order to conduct a thorough inventory of the estate." In this affidavit, Mr. Davis also stated that, although he had discussed the possibility of commencing trial on September 21 with the clerk, he could not do so because he was "scheduled to commence a criminal trial in the Boston Municipal Court Jury Session on that date."
The clerk informed Mr. Davis that the judge would hear his motion by telephone at 2:00 P.M. on Friday, September 18, 1998. On September 18, there was no call from Mr. Davis at the appointed time, although both the judge and opposing counsel were waiting for the call. At 3:15 P.M., the clerk called Mr. Davis's office and was told Mr. Davis was not there. The clerk informed Mr. Davis's associate that, if the judge did not hear from Mr. Davis by 4:00 P.M., the case would go forward on Tuesday, September 22, 1998. Mr. Davis did not call. On Monday, September 21, at 3:30 P.M., when the clerk spoke with Mr. Davis to inform him that the case would go forward the next day, Mr. Davis told him that he had plans for that day and would not appear. Mr. Davis failed to appear for trial on Tuesday, September 22.
Doliber was present on the morning of September 22 without Mr. Davis. In response to the trial judge's inquiry, Doliber informed the judge that he had spoken with Mr. Davis on Monday evening and that Mr. Davis had told Doliber he would not be back until the evening of September 22 and that Doliber should appear in court on September 21. Doliber said that he had also called Mr. Davis's office "a few minutes ago," and was told Mr. Davis was in North Carolina.
The judge informed Doliber that the case would go forward with Doliber representing himself. Doliber stated that he wished to have his attorney present, to which the judge responded, "Well, I would like you to have your attorney here too, but he's not here and I can't go out and arrest him. Apparently he's fled the state. So, all I can do -- the case is going to go forward." When the case was called for trial and the parties were asked if they were ready for trial, the defendant answered, "I'm not ready, your Honor." The jury s
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