Rymer v. Pool , 1992 D.C. App. LEXIS 340 ( 1992 )

FARRELL, Associate Judge.

Appellant appeals from the dismissal of her suit for fraudulent inducement to marry because of her failure to appear and prosecute. On December 4, 1990, Judge Huhn, acting as the calendar control judge, denied appellant’s motion for a continuance. Judge Webber then dismissed appellant’s case when she failed to appear or present any evidence on the scheduled trial date of December 6, 1990. Judge Web-ber dismissed the case subject to a ruling by Judge Huhn on appellant’s motion for reconsideration of the motion for continuance. Judge Huhn denied that motion on January 11, 1991. We affirm the dismissal.

I.

Appellant filed her motion for a continuance on November 9, 1990, requesting a postponement of the trial — scheduled for December 9, 1990 — for a period of 120 days.¹ In the motion appellant claimed that because of medical and financial reasons, she desired to present her own testimony at trial through deposition, and that she needed the continuance in order to have her deposition taken through the submission of written questions. Appellant claimed that she had not sought earlier “to preserve her own testimony by deposition because she fully expected to testify in person.” The motion was supported by a letter she had written to her attorney stating she was “still sick,” and by a physician’s X-ray report dated some fourteen months earlier (August 21, 1989) which stated that she had a “chronic duodenal ulcer disease with a residue of inflammatory process in the antrium.” The motion for continuance was heard on December 4, 1990, two days before the scheduled trial date. In support of the request for a continuance, counsel for appellant cited the X-ray report, which the judge pointed out was “over a year old.” Counsel advanced no basis for the claim that appellant was financially unable to travel, except for the fact that she had traveled to Washington, D.C. twice previously, once in an effort to “save” the marriage and the other time for the proceedings that had resulted in dismissal. See note 1, supra. Judge Huhn denied the motion for continuance, finding that appellant had offered “no basis” for her claim that she was unable to attend the forthcoming trial. Appellant moved for reconsideration in writing, again asking for 120 days in which to present her testimony by deposition.

Before trial on December 6, 1990, appel-lee made a motion to dismiss which, as stated, Judge Webber granted subject to a ruling by Judge Huhn on the motion to reconsider. Judge Huhn denied that motion in a written order which stated in part:

[N]o proof was given to demonstrate that [appellant] was currently ill. As an alternative basis for the request, the Court was told that the expense of travel to Washington, D.C. for trial was too burdensome for the [appellant]. [Appellant’s] counsel, however, failed to address the fact that a deposition of [appellant] taken in the Virgin Islands could be more expensive than a round trip ticket for the [appellant] to attend the trial. Although [appellant’s] counsel stated to the Court that he -wished to take [appellant’s] deposition if the continuance were granted, he never filed a motion requesting to be allowed to do so and never addressed the fact that discovery in this case had been closed since May, 1987.

II.

Appellant contends that she had a right to present her trial testimony through a deposition under Super.Ct.Civ.R. 82(a)(3)(B) and (C).² We have no occasion to consider application of that rule to appellant’s circumstances, however, because we deal here not with an interpretation of the rule but with the propriety of the trial court’s denial of a continuance after a hearing held virtually on the eve of trial, and which in turn led to the dismissal of appellant’s suit for failure to prosecute. The “settled rule” in this jurisdiction is that a motion for a continuance is “addressed to the sound discretion of the trial court and a ruling thereon will not be reversed on appeal absent a clear showing of an abuse of discretion.” Evening Star Newspaper Co. v. Covington, 323 A.2d 718, 722 (D.C.1974). Accord, Hairston v. Gennet, 501 A.2d 1265, 1268 (D.C.1985); Wahl v. Watkis, 491 A.2d 477, 479 (D.C.1985); Joyner v. Jonathan Woodner Co., 479 A.2d 308, 311-12 (D.C.1984); Milton Properties, Inc. v. Newby, 456 A.2d 349, 353 (D.C.1983); Ceco Corp. v. Maloney, 404 A.2d 935, 937 (D.C.1979); Feaster v. Feaster, 359 A.2d 272, 273 (D.C.1976); Harris v. Akindulureni, 342 A.2d 684, 686 (D.C.1975); Varone v. Varone, 296 A.2d 174, 178 (D.C.1972).

To justify a continuance, the party requesting it must show “specific and sufficient reasons why the applicant cannot attend the trial as scheduled or cannot try the case on the date scheduled.” Super.Ct.Civ.R. 40-I(e) (1990).³ In support of her request for a continuance to secure and present her testimony by deposition rather than live testimony, appellant cited illness and financial difficulties, both of which the judge found unsupported by a “proper basis.” On this record we have no reason to disturb that finding. The claim of disabling illness was confirmed only by a doctor’s report prepared more than fourteen months earlier. No further support was furnished for the claims either of illness or of financial inability to appear in person. Although illness of a party or a party’s attorney can be the basis for a grant of a continuance, Feaster, 359 A.2d at 273; Milton, 456 A.2d at 352-53, we do not find that the judge abused her discretion in denying the continuance in the face of appellant’s unsupported claims.

Appellant argues that the judge’s ruling rested upon the misconception that Rule 32 was not available to appellant. Judge Huhn, however, expressly denied that questions about whether appellant could avail herself of Rule 32 underlay the denial of the requested continuance. As the judge stated in denying reconsideration: “On December 4, 1990, this Court was assigned to hear and heard only requests for continuances.... This Court never ruled, nor was it asked to do so, on a motion to extend the discovery limits, to authorize the deposition of Plaintiff or to allow a previously taken deposition to be used at trial in lieu of Plaintiffs trial testimony.” Thus, appellant is wrong in asserting that the judge “declin[ed] to decide whether the plaintiff should have a continuance to present her trial testimony by deposition” (emphasis added). The judge denied the continuance because appellant had given no adequate medical or financial reason for postponing a trial set for two days later in order to proceed by way of a deposition (“upon written questions”) which she had yet to secure.⁴ We observe that in every case appellant cites permitting a plaintiff to proceed under the federal counterpart to Rule 32, no continuance was necessary — and in almost every instance none was requested — as the depositions had already been taken and were ready for presentation at trial. See Marshall v. Van Gerven, 790 P.2d 62, 63 (Utah App.1990); Bellamy v. Molitor, 108 F.R.D. 1, 1 (W.D.Ky.1988); Stewart v. Meyers, 353 F.2d 691, 696 (7th Cir.1965); Houser v. Snap-Owr-Tools Corp., 202 F.Supp. 181, 182 (D.Md.1962); Richmond v. Brooks, 227 F.2d 490, 491 (2d Cir.1955). None of these cases addressed the adequacy of the basis proffered for a continuance.⁵

As Judge Huhn was aware, this case has been pending since November 17, 1986. See Hairston, 501 A.2d at 1268 (length of pendency of suit is a proper factor when ruling on motion for continuance). Moreover, as noted previously, note 4, supra, formal discovery had closed in May of 1987. See Wahl, 491 A.2d at 479 (adequate notice of and opportunity for discovery also factors relevant to whether to grant continuance). Thus, although appellant’s decision to proceed by deposition may have been a recent one, the opportunity to give her deposition had arisen in the early stages of this litigation. ⁶ Furthermore, the continuance requested was for fully four months; even when the judge denied that request, appellant never (in her motion to reconsider) sought postponement for a shorter period in order to arrange her appearance if the deposition was no longer feasible. We therefore can find no clear abuse of discretion in the trial court’s denial of appellant’s request for a continuance⁷ unsupported by an adequate showing that appellant could not appear personally at trial.

Affirmed.

1 . The motion was filed eleven days after Judge Mencher had entered an order stating that the law of the United States Virgin Islands would govern this case. That choice of law determination had been made pursuant to this court's direction in Rymer v. Pool, 574 A.2d 283 (D.C.1990), in which we reversed a dismissal of the action for failure to state a claim for which relief could be granted under District of Columbia law.

2 . Rule 32(a)(3) provides in pertinent part:

The deposition of a witness, whether or not a party, may be used by any party for any purpose, if the Court finds ... (B) that the witness is at a greater distance than 25 miles from the place of trial or hearing, or is out of the United States, unless it appears that the absence of the witness was procured by the party offering the deposition; or (C) that the witness is unable to attend or testify because of age, illness, infirmity, or imprisonment....

The deposition is admissible against "any party who was present or represented at the taking of the deposition or who had reasonable notice thereof....” Rule 32(a).

3 . The 1990 version of the Superior Court Rules was in effect at the time of Judge Huhn's rulings.

4 . Since the deposition would require notice to and participation by appellee, Judge Huhn was correct in noting that the requested continuance came well after the formal close of discovery in May of 1987.

5 . In one case, Eferakeya v. Twin City State Bank, 13 Kan.App.2d 197, 766 P.2d 837 (1988), aff'd as modified, 245 Kan. 154, 777 P.2d 759 (1989), a continuance was requested (and denied), but the motion was accompanied by a notice of intent to proceed through deposition and the party’s already-obtained deposition in the event the continuance was denied.

6 . We note that when appellee had sought to take appellant’s deposition, appellant obtained a protective order on May 18, 1987, providing that appellee could take her deposition "(a) in the vicinity of her residence, (b) upon written interrogatories, or (c) if in Washington, D.C., only within three days of the date of triad or upon prepayment of the reasonable expenses in attending the deposition.”

7 .Although the request for a, continuance had been made by written motion little short of a month before trial, appellee predictably filed an opposition, and appellant could not reasonably anticipate that the motion would be heard until the eve of trial,