Scullin v. Cameron

• Decision Date: 25 September 1987
• Citation: 518 So.2d 695
• Parties: Chriss SCULLIN v. John Gray CAMERON, Jr. 86-195.
• Court: Alabama Supreme Court

Page 695

518 So.2d 695

Chriss SCULLIN v. John Gray CAMERON, Jr.

86-195.

Supreme Court of Alabama.

Sept. 25, 1987.

Rehearing Denied Jan. 8, 1988.

Robert B. Roden and Jeffrey A. Brooks, of Roden & Hayes, Birmingham, for appellant.

Wilbor J. Hust, Jr., of Zeanah, Hust & Summerford, Tuscaloosa, for appellee.

BEATTY, Justice.

Plaintiff appeals from the dismissal of his personal injury action for want of prosecution. We affirm.

The complaint, filed on October 12, 1984, in Marengo Circuit Court, alleged that plaintiff Scullin was negligently or wantonly injured by the defendant Cameron. The complaint was filed by Michael Blalock, a Birmingham lawyer. Also listed as counsel for plaintiff was Rocco J. Leo, also of Birmingham.

On November 5, 1984, defendant filed a motion to dismiss, which was overruled on November 6, 1984.

On December 12, 1984, plaintiff propounded interrogatories to defendant, and these were answered on August 8, 1985. In turn, the defendant propounded interrogatories to plaintiff on October 17, 1985. On October 10, 1985, defendant deposed two witnesses who were present at the accident scene. Mr. Leo associated another attorney to attend these depositions.

On July 25, 1985, Mr. Leo engaged Wyman Gilmore, an attorney from Grove Hill, to appear at the call of the docket, and engaged Gilmore again on November 7, 1985, for the same purpose. Even so, the record does not disclose that either Mr. Leo or Mr. Blalock at any time withdrew as counsel.

Then, on May 7, 1986, Mr. Robert Roden of Birmingham was associated by Mr. Leo. A short time later, plaintiff was deposed by the defendant in Mobile. This deposition was attended by Mr. Roden's associate, Mr. Jeffrey A. Brooks.

In July 1986, the Marengo Circuit Court mailed to the attorneys of record notices of the pre-trial docket to be called on August 20, 1986. At this docket call, the defendant's counsel was present; however, none of plaintiff's lawyers attended. Nevertheless, defendant's counsel announced he was ready for trial, and, although in his affidavit Mr. Brooks states that he "did not announce ready for trial for the week of September 22, 1986," the motion for continuance filed on September 22, 1986, by his associate, Mr. Roden, states that "[a]t the time Plaintiff announced ready for trial, the Plaintiff's counsel of record, Mr. Robert Roden, was not sent out to trial in the Tenth Judicial Circuit," but that "[a]t this time [September 22, 1986], [he] has been sent out to trial." Nevertheless, the trial docket was mailed to the parties on August 21, 1986, showing that this case was to be the first called for the week of September 22, 1986. Accompanying this trial docket was a pre-trial order that contained, among other things, the following statement:

"3. At least ten (10) days prior to the published trial date, each party shall deliver to opposing parties and the Clerk of the court, the names and addresses of all witnesss intended to be used at the trial; and in the case of expert witnesses, a short summary of the proposed testimony. Failure to comply with this provision will result in a witness not being permitted to testify unless allowed by the Trial Judge for good cause or to prevent manifest injustice.

"....

"7. All juries will be selected on Monday, September 22, 1986, after the grand jury is impaneled. Attorneys and their clients must be present in Court on this date in order to qualify and select the jury for their respective case. Cases not reached on the day scheduled for trial will be continued from day to day until tried.

"8. Cases that appear on the trial docket will not be continued except upon written motion and for good cause shown unto the Trial Judge. The motion must be filed with the Court a reasonable time prior to the trial date and must be signed by both the attorney and the party.

"9. Requests to issue subpoenas for witnesses must be filed with the Clerk together with the appropriate fees a reasonable time before the published trial date. The trial judge will not entertain a motion for continuance for failure of a witness to be present in Court if the request for subpoenas is not filed with the Clerk in a reasonable time to have the subpoena issued and served upon the witness."

In his brief, plaintiff concedes that "[o]n August 26, 1986, Mr. Roden's office received a trial docket for jury cases set in the Circuit Court of Marengo County for the week of September 22, 1986," but he contends that "[a]t that time, Mr. Roden was in New York City and did not become aware of the setting of the case until September 2, 1986."

In compliance with the pre-trial order entered August 20, 1986, the defendant mailed to plaintiff's counsel on September 10, 1986, a list of witnesses and exhibits that they expected to use at trial. Plaintiff, on the other hand, did not deliver such a letter to defense counsel.

Some three weeks before the trial, the defendant contacted T.L. Barrow, an Alabama state trooper, on the possibility of his testifying at trial. Trooper Barrow informed defense counsel that he would be absent from the state on the trial date, and suggested that he be deposed should his testimony be necessary. Apparently, the plaintiff did not contact this potential witness until sometime during the week before trial and more than two years after the officer had investigated the accident in question and prepared a report thereon.

After filing notices on August 26, 1986, the defendant took the depositions of Dr. Judy Travis and Frank Kratzer on September 3; of Jesse Simpson on September 4; and of Lisa Randolph on September 15. The defendant was never informed of any inconvenience to plaintiff caused by these settings, and, apparently, there was none.

On September 5, 1986, defendant requested that Mark Willie and Russell Curtis be subpoenaed to appear as witnesses at trial set for September 22, 1986.

Apparently, plaintiff decided on or about September 12, 1986, to take the deposition of Dr. John A. Tucker, and a message to that effect was left with defense counsel's office. Plaintiff's counsel contacted defense counsel by telephone on Wednesday, September 17, to discuss the scheduling of Dr. Tucker's deposition for Friday, September 19. Having informed plaintiff's counsel that his other engagements would not permit this deposition on that date, the defense counsel suggested alternatives, i.e., that the deposition be taken on Saturday, September 20, or that the physician simply be subpoenaed for the trial scheduled for the following Monday. In response to this conversation, plaintiff's counsel sent a notice to defense counsel of the taking of this deposition for Friday, September 19, which was received by defense counsel on September 18, despite his previously announced conflicts. Plaintiff's counsel then telephoned the trial judge and requested that he require defendant's counsel to attend Dr. Tucker's deposition. The trial court refused this request because plaintiff had not complied with the court's pre-trial order to deliver his list of witnesses. Plaintiff's counsel also requested a continuance then on the multiple grounds that Dr. Tucker and Trooper Barrow would be absent from trial and that Mr. Roden would be engaged in a certain trial in the Tenth Judicial Circuit (Birmingham). It appears that in this conversation Mr. Roden stated that other counsel would be present in Marengo County for the trial should he be unable to attend. The trial court denied the request for a continuance.

On Friday, September 19, 1986, plaintiff had subpoenas issued for Trooper Barrow and for various sets of hospital records of Carraway Methodist Medical Center in Birmingham, Whitfield Memorial Hospital in Demopolis, and Norwood Clinic in Birmingham. On that same day, plaintiff learned that Trooper Barrow would be absent from the state during the week of trial, which was to begin three days later.

On Monday, September 22, 1986, which was the scheduled trial date, the defendant, his attorney, and witnesses from Demopolis, Montgomery, and Mobile, Alabama, as well as Lawrenceville, Georgia, were present in court. Plaintiff was also present with counsel, Mr. Frost and Mr. Brooks. At this time, plaintiff renewed his request for a continuance on the same grounds as asserted before.

In the colloquy that followed between the trial court and counsel, the court observed that the case was the oldest on its docket and that it could find no evidence of any formal discovery begun by plaintiff since interrogatories were filed in December, 1984. The judge denied the motion for continuance "[b]ased upon reviewing the entire file and based upon the argument and based upon the conversations I had with both attorneys Thursday." The following appears in the record:

"THE COURT: For the record, I'm going to deny the motion for a continuance in this case. The case was filed approximately two years ago. Apparently there was no discovery done until very recently. No one has made the docket calls in the past. I have never seen Mr. Leo. He has never appeared for any docket call. I have never been contacted by anyone about a continuance until Thursday.

"As I understand it, all of these matters about witnesses and discovery and what not did not surface until the last few days. Therefore, I think it appears to me there has not been sufficient preparation by the plaintiff's counsel, and they are the ones wanting the continuance because of insufficient preparation. I don't think it's proper. The defendant has witnesses and is prepared to go to trial.

"I deny the motion for a continuance. I don't fault the two gentlemen in court today. I don't know how long they have been involved or whether or not the firm sent them to be present, but apparently someone has not prepared the case for trial whether it be Mr. Leo or another member of the firm. I don't speculate on that. I deny the motion for a continuance.

"As I understand it, I have been informed you do not...