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Bergeron v. Roszkowski2/7/2005
d and what opinions would be available from him for trial purposes.
After refusing to disturb the assignment justice's denial of a continuance, the trial justice asked plaintiff's attorney whether he was ready to proceed with the trial. The plaintiff's counsel responded that he was ready to go forward by impaneling a jury. The plaintiff's counsel conceded that the case would be dismissed if plaintiff did not appear the next day. The trial justice requested assurances from plaintiff's counsel that plaintiff would be there the next day and asked whether Mr. Watt would be ready. The trial justice then decided to place telephone calls to plaintiff and Mr. Watt. After dialing plaintiff's telephone number, the trial justice spoke with an individual who identified her/himself as plaintiff's roommate. The person said that plaintiff currently was not home and was expected back in a couple of hours; the person then hung up the telephone. The trial justice also spoke to Mr. Watt, who said that he had not yet been retained and was not ready to testify. Mr. Watt said that he was scheduled to meet with plaintiff at 4 p.m. that afternoon to review the case and that plaintiff's counsel had represented to him that the trial would be continued until October or November 2002. After this conversation, the trial justice said, " t is clear to me [plaintiff does not] have an expert."
The defendants' counsel then asked the court to dismiss plaintiff's case pursuant to Rule 41. The trial justice, in addition to stating that plaintiff was not ready for trial, expressed concern that plaintiff's counsel had not been candid toward the court. Further, the trial justice recognized that plaintiff's counsel had not taken the steps required by the assignment justice's order preceding the trial date. The trial justice opined that because of the lack of an expert witness, plaintiff would be unable to prove her case and, therefore, it would be an exercise in futility to subject counsel, the parties, and jurors to a trial. Consequently, the trial justice dismissed the case with prejudice.
An order, specifying that the case was dismissed involuntarily pursuant to Rule 41(b) for plaintiff's failure to appear and prosecute her complaint, and a final judgment were entered on September 24, 2002, from which plaintiff timely appealed.
On appeal, in a rather spare "preliminary docketing statement," plaintiff argues that the "Superior Court justices [erred] as a matter of law and as a matter of discretion in refusing the requested continuances * * * and in dismissing the case without a trial." Her legal argument must be gleaned largely from a few case citations. The plaintiff apparently avers that the Superior Court should have granted a continuance even without submission of medical affidavits. See Maker v. Ferguson, 105 R.I. 306, 251 A.2d 535 (1969).
The defendants maintain, on the other hand, that the assignment justice did not abuse his discretion in denying plaintiff's request for a continuance, and, consequently, that the trial justice correctly dismissed the case with prejudice. The defendants point out that plaintiff did not submit a medical certificate as required by Rule 40 to support her contention that she was unable to proceed with the trial because of her medical condition. Accordingly, they contend that the assignment justice was correct to deny the continuance. Furthermore, defendants argue that the dismissal of the case was warranted because plaintiff had not retained an expert witness to testify at the trial and thus was unable to prove a prima facie case of legal malpractice.
Discussion
Denial of Motion for Continuance "A trial justice is vested with grea
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