Bonner v. State ex rel. Department of Transportation

DOOLIN, Vice Chief Justice. This contested condemnation action was commenced by the Appellee on February 5, 1980, to obtain title to 3.94 acres of land belonging to Appellants for use as a highway right-of-way. Appellants employed [105] Gene Stipe (hereinafter “Stipe”), an attorney and Oklahoma State Senator, to represent them in this litigation. Stipe duly entered an appearance of record on behalf of Appellants, then undertook personally and by other members of his law firm, to move the matter to trial while at the same time pursuing a negotiated settlement. The case was first set for trial in May, 1983, whereupon Stipe filed his motion for legislative continuance, wherein he prayed the trial date be continued to a time more than thirty days after the adjournment of the current session of the State Legislature. The motion was granted and the case was eventually given a trial date of January 19, 1984, to begin at 9:00 A.M. The dockets setting this cause for jury trial were distributed to the parties at least three weeks prior to the date of trial. At 8:17 A.M. on January 19, one of Stipe’s associates filed a motion for legislative continuance then appeared before the court for the stated, limited purpose of arguing that motion. After hearing the arguments of counsel, the trial judge overruled the motion for legislative continuance, finding the written motion was not filed within a reasonable time. Thereupon, Stipe’s associate was excused at his own request and the matter was tried to a jury with neither Appellants nor their counsel present. At the conclusion of the trial, the jury returned a verdict setting Appellants’ damages from the forced condemnation in the sum of $4,000, and the court entered judgment on the verdict. Appellants now argue the trial court erred in overruling the motion for legislative continuance. The parties to this appeal recognize the matter of legislative continuance is governed both by statute1 and by court rule.2 These provisions are identical and contain the requirements set down by the Court of Criminal Appeals in Sorrels v. Barnett,3 which are: 1. If the case is set for hearing or trial during the session of the legislature; and 2. A written motion for continuance was filed in the case a reasonable time before its court setting and a copy of that motion was served upon opposing counsel, with notice having been given to the assigned judge; and 3. The litigant, in whose behalf the continuance is sought, is a bona fide client of the legislator-lawyer; and 4. The motion for continuance is made in good faith; and * ⅝ ⅝ * * 6. The legislator-Lawyer was retained as counsel to try the matter on its merits and not primarily for the purpose of obtaining a continuance as a legislator. The trial court’s specific finding at the time of the hearing on Stipe’s motion was that the legislator-lawyer had failed to comply with guideline number Two; his motion had not been filed a reasonable time prior to trial. The record reveals that, in fact, the motion was filed only forty-three minutes prior to trial, and after the prospective jurors had arrived at the courthouse in answer to their jury summons. Both parties recognize the matter of the reasonableness of the time of filing the motion is determinative of this appeal and indeed, there is no serious disagreement that all the other guidelines were complied with. Stipe argues, correctly, that whether or not a motion for continuance is filed in a reasonable time is a matter to be determined by all the facts and circumstances of a particular case. As was said in Sorrels, supra:4 (A) legislator-lawyer must file his application for a continuance when he first determines that such a request is necessary. We are of the opinion that a re [106] quirement of the trial court that the application be on file at least 10 days prior to the time of trial would not be unreasonable, barring the extraordinary circumstances. The “extraordinary circumstance” cited by Stipe here is that settlement negotiations with Appellee broke down on the evening prior to trial, and this breakdown was an “accident or surprise which ordinary prudence could not have guarded against.” We find this argument to be without merit. We must note that the collapse of settlement negotiations is neither rare nor unforeseeable in the normal course of civil litigation, and under the circumstances of this case, is a contingency which could have easily been provided for. Inasmuch as Stipe had more than three weeks’ notice of the trial date, and knew it fell on a day when the Legislature was in session, it would have been a simple matter for him to guard against just such an eventuality as the failure of negotiations by filing his motion more than ten days prior to trial. If there was some reason this action could not or should not have been taken, it was up to Stipe to show the trial court what that reason was. We hold therefore, that when a motion for legislative continuance is filed on the day of trial, the legislator-lawyer has the burden of proving the extraordinary circumstances necessary to show such filing is reasonable according to the requirement of the statute and court rule cited hereinabove. The assertion that an eleventh-hour5 failure of settlement negotiations is an unforeseeable circumstance which could not be guarded against is insufficient to meet this burden. The judgment of the trial court is therefore AFFIRMED. SIMMS, C.J., DOOLIN, V.C.J., and LAVENDER, HARGRAVE and OPALA, JJ., concur. WILSON, J., concurs in part, dissents in part. HODGES, KAUGER and SUMMERS, JJ., dissent. Footnotes [1] 12 O.S.1981 § 667, Administrative Guideline 75-1 [2] 12 O.S.1981, Ch. 2, App., Rule 24. [3] 534 P.2d 692 (Okl.Cr.1975) [emphasis added]. [4] 534 P.2d 692, at 695. [5] In the instant case, the failure was literally at the eleventh hour, because the trial court was informed of it at 11:00 P.M. on the night before trial.