Opinion
No. 2-479 / 00-1646.
Filed August 14, 2002.
Appeal from the Iowa District Court for Buchanan County, JAMES C. BAUCH, Judge.
Plaintiff appeals from the trial court's order dismissing her case for failure to appear for a jury trial. AFFIRMED.
Rose Manguno, Oelwein, pro se, for appellant.
Denny Wilson of Craig, Wilson, Flickinger, Independence, for appellee.
Considered by HAYDEN, PETERSON, and HARRIS, S.J.
Senior judges assigned by order pursuant to Iowa Code section 602.9206 (2001).
The record in this case discloses plaintiff filed her pro se petition on December 23, 1998. Defendant appeared through her attorney, filed an answer, and later affirmative defenses to plaintiff's petition. Later plaintiff obtained an attorney who filed an amended and substituted petition for money judgment and for declaratory judgment and a jury demand. In this amended and substituted petition plaintiff's attorney defined the issues and relief sought by plaintiff.
We note plaintiff filed at least three separate jury demands. One through her attorney, and two separate demands pro se.
During December of 1999, plaintiff fired her attorney and proceeded pro se. Trial was set for October 4, 2000. On March 7, 2000, the court entered an order reciting plaintiff was seeking a continuance of the trial date and directing her to retain other counsel within thirty days to represent her in this lawsuit, if she so desired. Plaintiff did not obtain another attorney. Throughout the proceedings plaintiff requested and was granted continuances.
On October 3, plaintiff appeared and requested a continuance because she was too sick to be present at the trial. Her request was denied in part because she did not have a supporting doctor's statement. Later that day, she brought to the court a doctor's statement indicating she had nasal sinus congestion and muscle tension in her neck. David McQuivey, PAC, wrote he felt it would be in Ms. Manguno's best physical and mental emotional interests to be granted a continuance regarding a case to be tried on October 4, 2000. The court denied her motion to continue. The next day, October 4, 2000, plaintiff reasserted her motion to continue via telephone call to the trial court. Defendant was present in person, although in a wheel chair, and her attorney was present. The jury panel was also present. The trial court informed plaintiff he would hold the jury until 1:00 P.M. and suggested plaintiff go to a hospital if she were that ill.
Plaintiff went to a hospital and a doctor advised her she was having panic attacks. Plaintiff refused to be present at the trial and again asked for another continuance. We note a week before trial was to start plaintiff had asked for a continuance to have time to get another attorney. Her request was denied. Defendant in this case moved to dismiss, and the trial court concluded plaintiff was in default for failing to appear under Iowa Rule of Civil Procedure 1.971(3) and dismissed the case. We affirm the trial court.
Plaintiff had seven months to obtain new counsel since she was requested to do so by the court. The eve of trial is too late to obtain a continuance in order to try to obtain another attorney. The trial court recognized all trials are stressful and defendant, who is infirm and in a wheel chair, also deserves to have her day in court. No doubt, she also suffers from the stress of a trial.
This case is dismissed pursuant to Iowa Rule of Civil Procedure 1.971(3) for plaintiff's failure to be present for trial.
Costs of this appeal are taxed to appellant.
AFFIRMED.