Summary
In Apollo Tire, Inc. v. United Bank of Lakewood National Ass’n, 531 P.2d 976, 977-78 (Colo. App. 1974) (not published pursuant to C.A.R. 35(f)), a division of this court held that a district court does not abuse its discretion in denying a motion for leave to amend where "[the] litigation had already been protracted and the granting of plaintiff’s motion to amend would have required further lengthy delay in order that the defendants might respond to the new claims for relief."
Summary of this case from Rinker v. Colina-LeeOpinion
Rehearing Denied Dec. 17, 1974.
Omer L. Griffin, Denver, for defendant-appellee United Bank of Lakewood Nat. Ass'n.
Rothgerber, Appel & Powers, William P. Johnson, Richard K. Clark, Denver, for defendant-appellee Sears, Roebuck & Co.
Page 977
Theodore M. Smith, Denver, for plaintiffs-appellants.
Holme, Roberts & Owen, Donald K. Bain, Denver, for defendant-appellee United Bank of Denver Nat. Ass'n.
Bradley, Campbell & Carney, Victor F. Boog, Golden, for defendant-appellee J. B. Putt.
PIERCE, Judge.
The complaint in this action was filed December 18, 1970. All defendants had answered by December 1971, and trial was set to commence on December 11, 1972. On December 1, 1972, the court granted plaintiffs' counsel leave to withdraw and vacated the trial date. On January 15, 1973, new counsel entered an appearance for plaintiffs, and trial was reset for September 26, 1973.
The record does not indicate that plaintiffs' second counsel withdrew from this action. However, on August 24, 1973, present counsel for plaintiffs entered his appearance responded to the counterclaim of one of the defendants, and moved for a continuance. On August 30, 1973, plaintiffs' motion was denied. At a hearing on September 19, 1973, plaintiffs' counsel renewed his motion for a continuance, stating that he would be unprepared to go to trial on September 26. The court concluded that plaintiffs had not shown good cause for a continuance and again denied the motion. On the same date, the court denied plaintiffs' request for leave to amend their complaint. Subsequently, plaintiffs filed an 'offer of proof' which included counsel's statement that he had only recently entered the case and would be unprepared for trial on September 26. It was accompanied by plaintiff Lynch's sworn statement that his second counsel had, in May of 1973, informed plaintiff that he declined to handle the case further and that plaintiff immediately began seeking the assistance of other counsel, resulting in the retention of plaintiffs' present counsel.
When the case came on for trial on September 26, plaintiffs' counsel moved for reconsideration of plaintiffs' requests for a continuance and for leave to amend their complaint. Counsel offered plaintiff Lynch's testimony to prove that plaintiff had been diligent in seeking legal assistance. The court noted that two previous requests for continuances had been denied with knowledge of plaintiffs' problems in seeking legal assistance and in completing discovery, and denied the motion for reconsideration. After plaintiffs declined to offer evidence, the court dismissed the action. We affirm.
I.
The principal issue presented on appeal is whether the trial court erred in refusing to grant a continuance on either August 30, September 19, or September 26, 1973. Although the affidavits submitted by plaintiffs might indicate that they were diligent in their attempts to obtain new counsel between May and August of 1973, the burden is upon plaintiffs to show reasonable excuse for their failure to prepare and present evidence at the trial once counsel had been obtained. Here, insufficient cause for further delay was shown. Compare Maynard v. Bullis, 99 Cal.App.2d 805, 222 P.2d 685; City of Tucson v. O'Reilly Motor Co., 64 Ariz. 240, 168 P.2d 245.
The granting or denial of a continuance lies within the sound discretion of the trial court and its ruling will be reversed only for plain and arbitrary abuse of discretion. Hoy v. North Jeffco Metropolitan Recreation District, 160 Colo. 382, 417 P.2d 790; Dilworth v. Leach, Colo., 515 P.2d 1130. No abuse of discretion was demonstrated here.
II.
The plaintiffs also urged that the trial court's denial of their motion to amend the complaint was reversible error. The amended complaint was tendered to the trial court only nine days prior to the trial, appoximately two years and nine months after the original complaint had been filed and approximately two years after responsive pleadings had been filed. It sought entry of a new party, deleted some of the original claims, and added some new claims.
This litigation had already been protracted and the granting of plaintiffs' motion to amend would have required further lengthy delay in order that defendants might respond to the new claims for relief. Although C.R.C.P. 15(a) provides in regard to the amendment of a pleading that 'leave shall be freely given when justice so requires,' the circumstances in this case do not show an abuse of discretion in denying the motion to amend. Compare Conyers v. Lee, Colo.App., 511 P.2d 506; and Shira v. Wood, 164 Colo. 49, 432 P.2d 243; With Colorado Racing Comm. v. Brush Racing Ass'n, Inc., 136 Colo. 279, 316 P.2d 582.
III.
The plaintiffs also argue that the trial court's dismissal was based on plaintiffs' failure to prosecute the action, and that such a dismissal is improper unless the court holds a hearing and makes a finding that plaintiffs wilfully failed to advance the litigation. We disagree with plaintiffs' contention that the dismissal was for failure to prosecute the action. While the transcript, at one point, contains a statement of the court that the case 'is being dismissed for failure to prosecute or go forward,' the court's final order and judgment of dismissal definitely based the dismissal on plaintiffs' failure to offer evidence at trial. Therefore, dismissal was proper.
IV.
Plaintiffs' present counsel made several requests that this action be tried to a jury. All of these requests were denied. In light of our disposition of the other issues in this case, this allegation of error has become moot.
Judgment affirmed.
COYTE and SMITH, JJ., concur.