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Bergeron v. Roszkowski2/7/2005
t authority in managing his or her trial calendar. ' he management of a trial calendar is among the most difficult of all judicial assignments. * * *
Consequently[,] the widest discretion must be given to calendar justices and trial justices in carrying out this enormously difficult function * * *.'" Mills v. State Sales, Inc., 824 A.2d 461, 469 (R.I. 2003) (quoting Boucher v. Galvin, 571 A.2d 35, 37 (R.I. 1990)). "This Court will not disturb a trial justice's decision to grant or deny a request for a continuance absent an abuse of discretion." Id.
The requirements for requesting a continuance because of illness are set forth in Rule 40(c), which provides in pertinent part:
"A motion for a continuance on the ground of sickness of a party or witness shall be accompanied by a certificate of a practicing physician stating the fact of said sickness, and the kind, degree, and the time of beginning thereof. Such motion may be denied if the moving party shall not have notified the adverse party as soon as practicable of the illness and forthcoming motion for a continuance."
Rule 40(c) also provides that " he court need not entertain any motion for a continuance based on the absence of a material witness unless such motion be supported by an affidavit which shall state the name of the witness and, if known, the witness' address, the facts to which the witness is expected to testify and the basis for such expectation, the efforts which have been made to procure the witness' attendance or deposition, and the expectation which the party has of procuring the witness' testimony or deposition at a future time."
In Maker, 105 R.I. at 307, 251 A.2d at 535, this Court upheld the trial justice's grant of a continuance on the basis of the plaintiff's illness, despite the lack of a medical certificate. The Court stated, however, that this "noncompliance in and of itself would have justified the trial justice in denying the request for a continuance * * *." Id. In Perry v. Garey, 799 A.2d 1018, 1021, 1024 (R.I. 2002), for example, this Court affirmed the denial of a continuance requested by the defendant when he failed to provide an affidavit confirming his wife's serious illness.
In Mills, 824 A.2d at 469, this Court affirmed a hearing justice's refusal to grant a continuance on the basis that the justice took "proactive steps to alleviate some of the burden placed on plaintiff because of [her attorney's] * * * withdrawal." The hearing justice, for example, relaxed some deadlines to allow plaintiff to retain new expert witnesses. Id. Accordingly, the denial of a continuance "did not present an insurmountable barrier to the success of plaintiff's case." Id.
In the present case, the assignment justice, in a similar fashion, denied the motion for the continuance, but at the same time allowed plaintiff an additional four days to procure a medical affidavit for the expert witness. If plaintiff obtained this affidavit, he allowed her to substitute a new expert witness who could be deposed over the weekend. As in Mills, therefore, the denial of the continuance did not present an insurmountable bar to plaintiff's success in the case. Moreover, plaintiff did not submit the required medical certificates for either herself or her original expert witness. In addition, statements by plaintiff's counsel appeared to contradict his previous assertions that plaintiff was not physically able to travel to Rhode Island. Consequently, we are of the opinion that the assignment justice did not abuse his discretion when he denied plaintiff's motion for a continuance.
Furthermore, the trial justice was correct to refrain from deciding plaintiff's renewed mo
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