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Stett v. Greve2/27/2002
. Turner v. Stassi, 33,022 (La. App. 2d Cir. 5/10/00), 759 So.2d 299; Ware v. Medical Protective Ins. Co., 621 So.2d 54 (La. App. 2d Cir. 1993), writ denied, 629 So.2d 354 (La. 1993). This discretion includes the decision of whether to reopen a case for additional evidence and the trial court's determination will not be disturbed on appeal absent an abuse of discretion. Brown v. Hobson, 30,131 (La. App. 2d Cir. 1/21/98), 706 So.2d 1030, writ denied, 98-479 (La. 4/3/98), 717 So.2d 1132, citing LSA-C.C.P. art. 1632.
The decision to hold the record open for additional evidence is akin to the decision to reopen a case for the taking of additional evidence. Further, although the Stetts' counsel did not seek a continuance, the decision to hold the record open involves many of the same concerns that apply to the decision to grant a continuance. In Gilbert v. Visone, 32,303 (La. App. 2d Cir. 10/27/99), 743 So.2d 909, we explained the review of a trial court ruling on a motion for continuance:
Under the provisions of La. C.C.P. art. 1601, a continuance may be granted in any case if there is good ground therefor. The trial court has great discretion in granting or denying a motion for a continuance under this provision; that discretion will not be disturbed on appeal in the absence of a clear abuse of discretion. However, an abuse of discretion occurs when such discretion is exercised in a way that deprives a litigant of his day in court. Whether a trial court should grant or deny a continuance depends on the particular facts of each case. Some factors to consider are diligence, good faith and reasonable grounds. Of equal importance is the other litigants' corresponding right to have the case heard as soon as practicable.
The evidence in the record does not show that the Stetts were in bad faith when they requested that the court hold the case open, that their request was calculated to obtain a strategic advantage or that Greve would be prejudiced if the case was held open. Thus, on appellate review, the sole question is whether the court's refusal to hold the case open to obtain Stett's testimony was an abuse of discretion ultimately denying the appellants their day in court.
As factors in denying the request to hold open the record, the district court stated that Stett failed to provide a doctor's report as proof of sudden illness and noted that there had been a number of prior continuances. However, the record indicates that Stett was being treated at the time of the hearing and plaintiffs should have been given a reasonable opportunity to obtain a medical report. In addition, the plaintiffs should not have been penalized for the four prior continuances, which were arranged by mutual consent of counsel.
Although Greve asserted that she had terminated the therapy in June 1995, her testimony reflects a pattern of treatment which was interrupted and then resumed on more than one occasion. After a thorough review of the record, I cannot say that the evidence as it stands conclusively demonstrates prescription. Stett's letters are general in nature expressing her discontent with the status of the therapeutic relationship and her concern about the possible termination of therapy. The correspondence must be considered in the context of the history of the therapy relationship. In January 1991 and again in November 1994, treatment was purportedly "terminated" by Greve, only to be resumed at a later time.
Thus, contrary to the findings of the trial court and the majority, the letters do not show that Stett was aware that the therapy relationship was finally "terminated" on June 22, 1995. In fact, Greve acknowledged that on the same date she offered additional
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