Opinion
NO. 2017 CW 0562
04-28-2017
SHELIA KAYE ANTHONY BESSON v. DOLLAR GENERAL AND ABC INSURANCE COMPANY
In Re: Dolgencorp, LLC and Dollar General Corporation, applying for supervisory writs, 22nd Judicial District Court, Parish of St. Tammany, No. 2013-11991. BEFORE: WHIPPLE, C.J., McCLENDON, WELCH, CRAIN AND HOLDRIDGE, JJ.
WRIT GRANTED. The district court's April 12, 2017 ruling which denied the Motion to Continue Trial filed by defendants, Dolgencorp, LLC and Dollar General Corporation, is reversed. A continuance shall be granted if, at the time a case is to be tried, the party applying for the continuance shows that he has been unable, with the exercise of due diligence, to obtain evidence material to his case; or that a material witness has absented himself without the contrivance of the party applying for the continuance. La. Code Civ. P. art. 1602. When the conditions of La. Code Civ. P. art. 1602 are met, the granting of a continuance is mandatory. The policy behind the mandatory continuance is to insure that a party is not deprived of his day in court or his right to properly present his defense when not due to his own fault or delinquency. Sullivan v. City of Baton Rouge, 2014-0964 (La. App. 1st Cir. 1/27/15), 170 So.3d 186, 192. In this case, counsel for defendants represented that the expert witness was notified approximately five months earlier of the trial date and was initially available for the upcoming trial. Counsel for defendants was later notified on April 6, 2017 of the witness' unavailability, which is the basis of this motion. There is no evidence to suggest that defendants, or their counsel, contrived this unavailability of the witness. In addition, counsel for defendants has represented that this expert witness examined plaintiff and intends to provide an opinion at trial as to causation and damages, which are the material issues to be determined at this trial. The Motion to Continue Trial filed by defendants, Dolgencorp, LLC and Dollar General Corporation, is granted, and this matter is remanded to the district court for the setting of a new trial date.
JEW
GH
PMc
Whipple, C.J., and Crain, J., dissent and would not consider the writ due to rule violations. COURT OF APPEAL, FIRST CIRCUIT /s/_________
DEPUTY CLERK OF COURT
FOR THE COURT