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Shiver v. Lafayette City-Parish Consolidated Government

Court of Appeal of Louisiana, Third Circuit

December 10, 2014

CAROLYN SHIVER, D/B/A LABS
v.
LAFAYETTE CITY-PARISH CONSOLIDATED GOVERNMENT

APPEAL FROM THE FIFTEENTH JUDICIAL DISTRICT COURT. PARISH OF LAFAYETTE, NO. C-20111237. HONORABLE PATRICK L. MICHOT, DISTRICT JUDGE.

AFFIRMED.

Malcolm Brasseaux, Church Point, LA, COUNSEL FOR PLAINTIFF/APPELLANT: Carolyn Shiver.

Michael J. Breaux, Lafayette, LA, COUNSEL FOR DEFENDANT/APPELLEE: Lafayette City-Parish Consolidated Government.

Court composed of Marc T. Amy, Elizabeth A. Pickett, and Billy Howard Ezell, Judges.

OPINION

Page 790

[14-760 La.App. 3 Cir. 1] AMY, Judge.

This appeal concerns the trial court's denial of a motion for continuance and subsequent grant of a motion for involuntary dismissal. Alleging that health problems had prevented him from properly preparing for the trial, the plaintiff's attorney filed a motion for continuance on the morning of trial. After a contradictory hearing, the trial court denied the motion for continuance. Noting that the plaintiff was not present for trial, the defendant moved for involuntary dismissal, which was granted by the trial court. The plaintiff appeals. For the following reasons, we affirm.

Factual and Procedural Background

In February 2011, Carolyn Shiver d/b/a LABS brought this action against the Lafayette City-Parish Consolidated Government. Ms. Shiver alleged that a sewer line owned by LCG backed up into her property, causing damages. Ms. Shiver later amended her petition to indicate that Shiver Development, L.L.C. owned the property, which was leased to Laboratory and Analytical Business Services, Inc. Ms. Shiver asserted that she was a guarantor of the lease.

In August 2013, LCG requested that the matter be set for trial, and the trial court scheduled a bench trial for January 27, 2014. On the morning of trial, Ms. Shiver's attorney filed a motion for continuance, asserting that he had been in poor health and was unable to prepare for the trial. The trial court conducted a hearing at which Ms. Shiver's attorney and opposing counsel were present and argument was made. Thereafter, the trial court denied the motion for continuance. Observing that the plaintiff was not present for trial, the defendant moved for [14-760 La.App. 3 Cir. 2] involuntary dismissal pursuant to La.Code Civ.P. art. 1672.[1] The trial court

Page 791

granted the motion and dismissed the plaintiff's claims, with prejudice.

The plaintiff appeals, asserting that the trial court erred in denying the ...


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