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Bergeron v. Roszkowski2/7/2005
The plaintiff, Shirley Bergeron, appeals from a judgment dismissing her legal malpractice action with prejudice under Rule 41(b) of the Superior Court Rules of Civil Procedure for her failure to prosecute. The plaintiff argues that the Superior Court erred in denying her request for a continuance based on her own medical condition and on the medical condition of her expert witness. In addition, the plaintiff contends that the Superior Court erred in dismissing her action.
This case came before the Supreme Court for oral argument pursuant to an order directing the parties to show cause why the issues raised on appeal should not summarily be decided. After hearing the arguments of the litigants and examining the record and the memoranda that the parties filed, we are of the opinion that cause has not been shown, and we affirm the judgment entered in the Superior Court.
Facts and Travel
The allegations underlying this action arise from a personal injury lawsuit plaintiff filed as the result of a motor vehicle accident in July 1987. The plaintiff asserts that two of her attorneys in that lawsuit, defendants Joseph J. Roszkowski and Armand A. Teixeira, committed legal malpractice by, among other things, not informing her that the case had been scheduled for trial. Because of plaintiff's failure to appear for trial, the personal injury lawsuit was dismissed on April 4, 1994, for lack of prosecution. The plaintiff maintains that she did not find out about the dismissal until October 1, 1998. The defendants counter that plaintiff moved to Florida while the suit was pending, failed to keep in touch with her attorneys, and that they made numerous efforts to locate her and obtain her attendance at trial.
In the legal malpractice action now before us, trial was scheduled for the week of July 8, 2002; it was not, however, scheduled for a "date certain" at that time. In July, a justice of the Superior Court continued the case to a trial date certain for September 23, 2002. Approximately ten days before this trial date, plaintiff filed a motion for a continuance, supported by the following reasons. First, plaintiff averred that she had been diagnosed with a form of skin cancer, and although in a "stable" condition, she had not been able to consult with her attorney to prepare for trial. Further, she "had not been given clearance" by her physicians to travel from her residence in Florida to Rhode Island. Second, plaintiff's expert witness, John McBurney, had become ill and was unavailable to testify at trial. Third, plaintiff alleged that she previously had been financially unable to conduct a second deposition of defendants, but was now able to do so. Finally, she alleged that there was "a strong belief that [her former husband]," who was "an indispensable part of this case," had been "'paid off' on behalf of the defendants" and was intentionally avoiding plaintiff's efforts to contact him.
On Thursday, September 19, 2002, a hearing on the motion for a continuance was held before an assignment justice. During this hearing, defendants' counsel said that they previously had not been informed about medical problems concerning the expert witness, but that they had been advised that another expert, Robert Watt, would be substituted for Mr. McBurney and that plaintiff would update her interrogatory answers. In addition, defendants' attorneys pointed out that plaintiff had not submitted any medical affidavits, as required by Rule 40 of the Superior Court Rules of Civil Procedure, demonstrating plaintiff's inability to travel to Rhode Island because of her medical condition and supporting Mr. McBurney's illness. The plaintiff's counsel agreed to the assignment justice
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