Gregoire v. National Bank of Alaska

• Decision Date: 07 April 1966
• Docket Number: No. 609,609
• Citation: 413 P.2d 27
• Parties: Harry E. GREGOIRE, B. Elaine Gregoire, Homer Enterprises, Inc., Appellants, v. NATIONAL BANK OF ALASKA, and A. R. Cronin, Appellees.
• Court: Alaska Supreme Court

Page 27

413 P.2d 27

Harry E. GREGOIRE, B. Elaine Gregoire, Homer Enterprises Inc., Appellants, v. NATIONAL BANK OF ALASKA, and A. R. Cronin, Appellees.

No. 609.

Supreme Court of Alaska.

April 7, 1966.

Edger Paul Boyko, Anchorage, for appellants.

Murphy L. Clark, Hughes, Thorsness & Lowe, Anchorage, for appellee National Bank of Alaska.

William W. Renfrew, Anchorage, for appellee A. R. Cronin.

Before NESBETT, C. J., and DIMOND and RABINWITZ, JJ.

NESBETT, Chief Justice.

Appellants' main point on appeal is that the trial court grossly abused its discretion in denying a trial continuance of this case when their counsel was engaged in a criminal trial in a California court and could not be present.

Appellees emphasize the numerous previous delays and continuences in the case, all at appellants' request, to show that denial of an additional continuance was not an abuse of discretion.

The refusal to grant the continuance in question occurred in September of 1964, however, in order to consider the court's order in perspective it is necessary to review many of the proceedings had in the case since it was commenced on May 1, 1962.

The complaint filed by the appellee National Bank of Alaska, hereinafter referred to as the Bank, requested personal money judgments against appellants on certain notes and guarantees and foreclosure of certain mortgages. Appellants filed a general denial and counterclaimed alleging that the Bank and its predecessor, the Bank of Homer, had conspired with its officers and that the conspiracy resulted in the conversion of $27,000 of appellants' funds to their damage in the sum of $75,000.

On December 29, 1962 appellants filed a third party complaint against A. R. Cronin, alleging that as an officer of the Bank of Homer he had been negligent, had mismanaged funds belonging to appellants and had issued notes on their behalf which they had not signed, to their damage in the sum of $104,000.

A pre-trial order was entered on June 24, 1963 and the case was eventually scheduled to be tried on October 7, 1963. On September 25, 1963 the Bank's notice of the taking of the deposition of a witness in California was vigorously opposed by appellants' counsel on the ground that pretrial had been completed, discovery had been closed and trial was imminent. The notice of taking was vacated by the court.

The case was then removed from the trial calendar for an October 7th trial because negotiations among the parties indicated that an amicable settlement might be reached. On November 15, 1963 the case was again set for trial by jury on November 25, 1963.

Until November 21, 1963 appellants had been represented by John Stern, Esq. On November 19, 1963 Mr. Stern moved the court to be permitted to withdraw as appellants' attorney, alleging that he had been relieved as attorney by appellants on October 15, 1963; that appellants had picked up and signed a receipt for their files; that on October 15th, he, Stern, had prepared a motion and order for substitution of attorneys for the use of the attorney who was to be substituted, but that the order had never been filed by Stanley J. McCutcheon, the attorney who was to be substituted; that he, Stern, had no further interest in the case, did not have custody of the files and should be relieved of any further responsibility.

The Bank filed written objection to the motion to withdraw pointing out that the case was scheduled to go to trial in a matter of five days; that there was no showing that counsel and his client were at hopeless odds and that other counsel was not ready to be substituted. At the hearing on the motion appellant Harry E. Gregoire stated to the court that he had asked Mr. Stern to withdraw because of a conflict of interest, but that he had gone to Mr. McCutcheon on October 4 before releasing Mr. Stern; that he had been 'perfectly willing to have this thing settled out of Court if possible * * *', that Mr. McCutcheon had referred him to Mr. Merbs, who was not going to represent him. Mr. Merbs was present in court and verified that he would not be representing the appellants. Mr. Stern, in response to a question asked by the court, stated that there was an irreconciable conflict between his interests and appellants' interests. The court then granted the request to withdraw, but stated that the case would be left on the calendar to be tried the following Monday, November 25, 1963.

On November 21, 1963 appellants had filed a motion for continuance of the trial through Peter Walton, Esq., who advised the court that he was appearing in court only for the purpose of arguing appellants' motion for continuance. The court continued until December 4, 1963 trial of the mortgage foreclosure aspects of the case which were to be served from the remaining issues. The remaining issues were ordered to be tried by a jury at a later date.

On December 3, 1963 Mr. Walton obtained a stay of proceedings in the case in order to petition to Supreme Court of Alaska for review of the trial court's order denying his motion for continuance. The Bank, by the affidavit of its senior vice-president, Karl V. Holmberg, protested the amount of the bond required for the stay, alleging that the Bank had brought three witnesses from Homer, Alaska, for the trial at a cost of over $300.00; that it had been prepared for trial on four other occasions at an estimated additional cost of $500.00; that during settlement negotiations in early October 'plaintiff', (referring to appellant Harry E. Gregoire) had admitted that his chief desire was to obtain an extension of time within which to pay his obligation which was greater than the period of redemption and that affiant of his own knowledge and belief was conviced that appellants' tactics were delaying and staling rather than to face a determination on the merits. The amount of the bond remained at $750, which the court specified was to be used to cover appellees' costs on review and all expenses incurred in anticipation of trial.

This court on January 10, 1964 denied appellants' petition to review the trial court's order of December 2, 1963 denying the request for continuance.

On January 16, 1964 the Bank moved that the case be set for trial at the earliest possible date. This motion was noticed for hearing on January 23, 1964. On January 23, 1964 Edgar Paul Boyko, Esq. filed his appearance as counsel for appellant and argued to the court in opposition to the Bank's motion for an early trial. The court granted Mr. Boyko a period of ten days within which to make a showing to substantiate his request that the entire case be reopened for the amendment of appellants' pleadings, to make additional discovery and to hold another pretrial conference.

On January 24, 1964 the Bank filed a motion to disqualify Mr. Walton from taking any further part in the litigation because of a conflict of interest. It was alleged that in February of 1960 Mr. Walton had represented the Bank in setting up the transaction which formed the basis of the Bank's first claim for relief and was then attempting to represent appellants who denied the enforceability of the note and mortgage. Hearing on the motion to disqualify was set for January 29, 1964. On January 28, 1964 Mr. Boyko and Mr. Walton filed a joint entry of appearance on behalf of the appellants and Homer Enterprises, Inc. On the same date Mr. Walton filed a 12 page affidavit denying a conflict of interest. On January 30, 1964 the court held a lengthy hearing on the motion to disqualify and on January 31, 1964 granted the motion. After counsel had disagreed as to the form of the order of disqualification, Mr. Walton filed a written withdrawal, which was accepted by the court.

On February 3, 1964 Mr. Boyko filed a motion for an order reopening discovery and authorizing a new pre-trial conference. On the same date he filed a second amended third party complaint on behalf of appellants setting out four claims; an amended answer and counterclaim setting out eleven separate defenses to the first claim, sixteen separate defenses to the second claim, ten separate defenses to the third claim and a counterclaim again alleging a conspiracy between the Bank and the Bank of Homer to destroy appellants' credit, to wrest valuable property from them, of converting bank funds of appellants and of contriving to impair the ability of counsel to represent appellants. On February 6, 1964 a subpoena duces tecum and notice of taking of deposition issued and on February 7th a demand for jury trial was filed all on appellants' behalf.

Both appellees moved to strike the amended answer and counterclaim and opposed the motion to reopen discovery and grant a new pre-trial conference. The appellee Cronin also moved to strike appellants' second amended third party complaint. After a hearing the court denied appellants' motion to reopen discovery and for a new pre-trial conference, granted appellees' motion to strike the amended answer and counterclaim and granted the motion to set the case for trial. Appellee Cronin's motion to strike the second amended third party complaint was also granted.

Judge Moody reviewed the history of proceedings to that date pointing out that all pleadings had been filed and issue joined, that discovery had been accomplished and pre-trial completed prior to September of 1963 when appellees' motion to take a deposition was vacated by the court on appellants' insistence that the case was ready for trial and the trial date imminent. The judge pointed out that vacation of the various trial settings and the resultant delay was at the instance of appellants on each occasion. After attempting to accommodate counsel the judge finally set the case for trial during the week of March 16, 1964, recognizing the right of counsel to make a showing for a continuance.

On March 2, 1964 Mr. Boyko filed a notice of the special appearance of Kenneth D. Jensen, Esq. for the limited purpose of handling motions and...