A Double Nightmare for Counsel

December 16, 2014 § Leave a comment

Sometimes we assume something and it makes us say “Ouch.”

Gregory Dailey and his ex, Tracie McBeath, were entangled in child-support-contempt litigation. Hearing had been continued a time or two, and Gregory’s attorney had filed a motion to compel discovery, noticed for the most recent trial setting, and both counsel agreed that the case should be continued. That’s where things went haywire.

Here’s how Judge Barnes, in the COA case of Dailey v. McBeath, issued November 25, 2014, described the situation:

¶5. A hearing on the petition was held April 19, 2012. Tracie’s counsel asserted a motion to compel discovery, claiming that when she had finally received an answer from Gregory a week prior to the hearing, there was no proper documentation (tax returns, check stubs, etc.) included. She also claimed that Gregory had purposely eluded investigators, giving them false information, and that he was hiding assets. Gregory failed to appear at the hearing. His counsel, however, was present and acknowledged that Gregory had not filed tax returns for the last seven years. Gregory’s counsel complained that counsel opposite had not been communicating with him and that he had been unable to depose Tracie, even though he had been trying for months.

So, Gregory is a no-show, possibly because he and his attorney assumed that a simple order addressing the discovery issues with a resulting continuance would be the net result. But, that assumption proved to be painfully incorrect, as Judge Barnes went on to describe:

¶9. Gregory’s counsel made an appearance on his behalf at the April 19, 2012 hearing, evidently expecting that the chancery court was only going to address the motions for discovery and grant the parties’ motions for a continuance. However, the chancellor refused to continue the proceedings and denied both parties’ motions. Although counsel argued that Gregory was located three hours away in Madison, Mississippi, as were the attorney’s files for the case, the chancellor advised the parties to prepare for trial and to attempt to reach an agreement. He admonished:

I’m going to continue with the case and you have no authority to release your client. I have that trouble in other cases and it’s my policy to go forward. . . . And I’m not going to play games with discovery. . . . Y’all should have cooperated with each other. I’m going to try the case, so just get your stuff ready.

. . . .

Now, what I will do is give y’all a chance to visit to see if you can resolve the matter. And it may be that you can talk to your client by phone. I will not tolerate from either one of you all the failure to cooperate and discuss a case.

¶10. On appeal, Gregory argues that the chancellor’s denial of a continuance, which gave his counsel only seventeen minutes to prepare for trial, was “an inherent abuse of discretion” and that he was “ambushed” and “unable to defend himself.” A chancellor’s decision to deny a motion for a continuance is reviewed for abuse of discretion. Sizemore v. Pickett, 76 So. 3d 788, 794 (¶14) (Miss. Ct. App. 2011) (citing Robinson v. Brown, 58 So. 3d 38, 42 (¶10) (Miss. Ct. App. 2011)). Absent a finding of prejudice, we will not reverse the denial of a continuance. Robinson, 58 So. 3d at 42 (¶10). [Footnote omitted]

¶11. While the chancellor’s decision to proceed with the hearing without Gregory present may appear harsh, we find that it was not an abuse of discretion. Gregory and his counsel should have been prepared for the possibility that the motions for a continuance would be denied. Gregory was obviously aware of the hearing, as his counsel was in attendance to represent him. Gregory does not contend that he was unable to attend the hearing, and he knew that he owed the prior judgment to Tracie and that the hearing had been scheduled for several months. Furthermore, the record shows that the chancery court had previously granted a continuance on August 17, 2011, and the chancellor noted at the hearing that the case had been set since February 21, 2011.

¶12. Consequently, we find any prejudice suffered by Gregory due to the chancellor’s decision to proceed with the hearing was of Gregory’s own making, and the chancellor did not abuse his discretion in denying the motions for a continuance.

  A few nuggets sifted from the ashes:

  • Never wait until the day of trial to bring unresolved discovery disputes to the court’s attention.
  • Never assume that you will be granted a continuance, even when both sides ask for it.
  • Never, ever, excuse your client from being present for a matter set for hearing by court order.
  • Never argue with a straight face that you are being “ambushed” when the case has been set for 14 months.

Remember two important principles:

  • The older a case becomes, the less likely the chancellor will be to grant motions that would have the effect of prolonging it, and
  • If you insist on assuming something, be prepared to deal with the consequences when your assumption proves to be incorrect.

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