The Phantom Motion for Continuance

April 8, 2020 § 1 Comment

Aside from the facts that it involves an all-pro se contested divorce, with all-pro se post trial motions, followed by an all-pro se appeal, the case of McChester v. McChester, handed down March 10, 2020, from the COA, is a powerful illustration of the noxious phenomenon known as the “phantom motion for continuance.”

Hold on. No need to reach for Black’s Law Dictionary or begin searching Westlaw; the term is my own, and you won’t find any legal authority for it. I apply it to the situation that arises when one side has a matter set for trial or other hearing, and the other side files a motion for continuance, not set for hearing, not otherwise presented to the court, and sometimes even on the eve of the trial setting, claiming that urgent and necessitous circumstances prevent the lawyer’s attendance. There is usually no documentation or even an affidavit. We are apparently expected to take the lawyer’s word for it.

As I mentioned, McChester involved pro se litigants, but the dilemma the judge faces is the same as when lawyers are involved. Here is how Judge Jack Wilson’s opinion described what transpired:

¶3. In December 2016, Willie McChester filed a pro se complaint for divorce against his wife, Dorothy, in the Harrison County Chancery Court. Willie alleged that he had been a resident of Harrison County for at least six months, though Dorothy remained a resident of Hinds County, where the couple resided prior to their separation. Willie sought a divorce based on irreconcilable differences. He did not allege any fault-based ground for divorce. In January 2017, Dorothy filed a pro se “response” to the complaint. Dorothy confirmed that she was a resident of Hinds County, and she requested a divorce based on irreconcilable differences and Willie’s desertion of her. In February 2017, without leave of the court, Willie filed a pro se amended complaint for divorce, alleging both irreconcilable differences and desertion. In March 2017, Dorothy filed another pro se response in which she again
requested a divorce based on irreconcilable differences and Willie’s desertion of her. She denied that she had deserted Willie.

¶4. In August 2017, the court entered an order addressing a discovery dispute. The court ruled that venue and jurisdiction in Harrison County were proper based on Willie’s residence. The court also stated that it would consider transferring the case to Hinds County, where the marital property was located and Dorothy still resided, if a written motion to transfer venue was filed. No such motion was filed, and the court administrator attempted to work with the pro se litigants to set a trial date. The case eventually was set for trial on March 13, 2018. Willie did not appear in court on that date. The court did not proceed with trial but instead entered an order on March 13, 2018, resetting the trial for May 30, 2018.

¶5. On May 22, 2018, Willie filed a motion to postpone the trial. Willie stated that he was scheduled to be admitted to the hospital for unspecified “treatment on his pre-existing health issues on May 25, 2018.” He stated that his treatment was expected to require three to five days in the hospital followed by one to two weeks of recovery. Willie asked the court to provide him with potential trial dates in June or July. Willie did not attempt to notice his motion for a hearing prior to the trial date.

¶6. On May 30, 2018, Willie did not appear in court. The chancellor noted that Willie had failed to submit any documentation or medical evidence to support his request for a postponement. The chancellor asked Dorothy if she had any response to Willie’s motion. Dorothy stated that she was prepared for trial and desired to move forward on her counterclaim for divorce based on desertion. She stated that it was a hardship for her to continue to have to travel from Jackson to Gulfport for court only to have Willie fail to appear. The chancellor then denied Willie’s motion for a postponement based on the lack of supporting evidence and Willie’s prior failure to appear. The chancellor ruled that Dorothy could proceed on her counterclaim for divorce based on desertion.

If you predicted that Dorothy would get her divorce in Willie’s absence, you win.

As I said, this scenario is not unique to pro se litigants. I see it with lawyers, too.

The most objectionable situation in which this arises is where one party has a motion for temporary relief set by R81 process. A lawyer files a Motion for Continuance alleging that she needs a continuance because she is scheduled to be in another court far, far away at the appointed time. The motion is not set for hearing; it’s just there, staring at everyone from the MEC screen. When the case is called, as promised, the moving lawyer is far, far away, or says she is.

To be fair, in most cases the appearing lawyer graciously agrees to hold off, and the matter fades from the judge’s radar screen.

But sometimes the lawyer in court objects, arguing how unfair it is that his client travelled all the way from Southaven to Meridian and needs relief like right now. How to be fair? As you probably can guess, chancellors hate to be put in this predicament.

On a related, but side, note: why did that lawyer sign on to represent that client knowing full well that she could not make the temporary hearing? Back in the Stone Age when I represented clients I would call the attorney on the other side and ask if she would agree to a continuance in view of my conflict. Nine times out of ten the matter was resolved in that conversation. If the attorney demurred — usually because of exigent circumstances that we could not resolve — I would then have two options:

  1. I could ask the attorney to agree to hear a motion to continue on short notice. This was almost always agreed, and our judges would accommodate us, usually in a brief 5-minute appearance in chambers.
  2. If the preceding would not work, I would decline to represent the client and send them on to someone competent whose calendar was open.

I’m not sure when or why that fell into disuse. Maybe lawyers nowadays are so pressed for retainers that they can’t afford to send anyone away. Whatever the reason, it did seem at the time that it was a civilized way to handle business.

Finally, I need to remind you that a motion filed without a notice of hearing or R81 summons setting it has the same legal effect as not filing a motion.


§ One Response to The Phantom Motion for Continuance

  • Pieter T says:

    It seems that seasoned lawyers still have a fair amount of professional courtesy towards counsel opposite and, usually, the court. Perhaps it’s because we’ve all been chewed on a time or two, or experience lends to a better understanding of judicial economy. But too often too many of us don’t understand that obtaining results requires cooperation in procedural matters even if we fire away on the merits. It does make one wonder whether the squabbles are undertaken to “justify” the retainer or something similar.

    Thanks for continuing to blog on real world chancery challenges, Judge. Stay safe everyone.

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