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06/01/83 ROBERTSON-RYAN & ASSOCIATES v. FRANK

June 1, 1983

ROBERTSON-RYAN & ASSOCIATES, INC., PLAINTIFF-RESPONDENT-PETITIONER,
v.
FRANK POHLHAMMER, DEFENDANT-APPELLANT



Review of a decision of the Court of Appeals. Reversing in part and affirming in part William G. Callow, J. William G. Callow, J. (concurring). Justices Donald W. Steinmetz and Louis J. Ceci join in this Concurring opinion. Shirley S. Abrahamson, J. (dissenting).

The opinion of the court was delivered by: Callow

This is a review of an unpublished decision of the court of appeals which reversed a judgment of the Milwaukee County Circuit Court, Judge Ralph G. Gorenstein, and remanded the matter for a new trial.

In September of 1980, Robertson-Ryan and Associates, Inc. (Robertson-Ryan) brought this action to collect the premium for an insurance policy ordered by Frank Pohlhammer. The trial was scheduled for July 23, 1981. On that day Judge Gorenstein conferred with the parties in an effort to reach a settlement. The negotiations were unsuccessful, however, forcing the case to trial. Because Judge Gorenstein had a second trial scheduled for the same time that day, he arranged for the case to be heard by Judge Madden. Both Judge Gorenstein and defense counsel informed Pohlhammer that the case had been transferred. While walking towards the other court, Pohlhammer said that he had to go to the county treasurer's office. Defense counsel did not object but told him to appear in court. Pohlhammer, however, did not return.

Defense counsel looked for Pohlhammer but was unable to find him. When Pohlhammer failed to appear for trial, Judge Madden sent the case back to Judge Gorenstein. Judge Gorenstein decided to proceed with the matter as scheduled. He informed defense counsel that, if the trial was not held immediately, he would enter a default judgment for Robertson-Ryan. Defense counsel requested a continuance until later in the day so he could find his client. The trial court denied the continuance and asked defense counsel whether he wanted to proceed without Pohlhammer. Defense counsel first indicated that he could not but later stated that, if a default was the only alternative, he would attempt to try the case in Pohlhammer's absence. At that point the trial court stated that it would assess actual costs and attorney fees against defense counsel if he proceeded without a defense. However, if a default judgment was entered, the court stated that upon a showing of good cause it would grant a motion to reopen the matter with costs. Defense counsel chose to try the case.

Robertson-Ryan presented one witness. At the close of Robertson-Ryan's case, defense counsel requested a short recess so that he could locate his client. This request was denied. As a result no direct evidence was introduced for the defense. The trial court ordered entry of judgment for Robertson-Ryan in the amount of $1,705 plus actual attorney fees of $568 (based on a one-third contingent fee), pursuant to sec. 403.806, Stats. The trial court assessed attorney fees of $220 against defense counsel (based on four hours spent in court at $55 per hour) on the ground that the defense was frivolous within sec. 814.025. As stated by the trial court: "he defense presented in this matter was entirely and completely frivolous, without merit, made for the sole purpose of delaying the matter when the witness in this matter voluntarily absented himself from the courthouse despite there being a court ready, willing and able to try the matter. He is not entitled to consideration under those circumstances."

Pohlhammer filed a motion for a new trial. In support of the motion, he submitted an affidavit which stated he was partially deaf and did not hear or understand statements by the court or his attorney that the case was to be tried in another branch that same morning. The trial court denied the motion. Pohlhammer appealed from the judgment. The court of appeals reversed the judgment, holding that the trial court abused its discretion in refusing to grant a continuance. We granted Robertson-Ryan's petition for review.

There are two issues presented for review: (1) whether the trial court abused its discretion in denying defense counsel a continuance, and (2) whether the trial court erred in assessing attorney fees against defense counsel under sec. 814.025, Stats.

I.

It is well established in Wisconsin that a continuance is not a matter of right. Gunnison v. Kaufman, 271 Wis. 113, 119, 72 N.W.2d 706 (1955); Smith v. Plankinton de Pulaski, 71 Wis. 2d 251, 257, 238 N.W.2d 94 (1976). Rather, the decision to grant or deny a continuance lies within the discretion of the trial court. Allen v. Allen, 78 Wis. 2d 263, 274-75, 254 N.W.2d 244 (1977); In Interest of D.H., 76 Wis. 2d 286, 300, 251 N.W.2d 196 (1977). Accordingly, the trial court's ruling on this issue will be set aside only if there is evidence of an abuse of discretion. In re Guardianship of Schmidt, 71 Wis. 2d 317, 320-21, 237 N.W.2d 919 (1976); Page v. American Family Mutual Insurance Co., 42 Wis. 2d 671, 677, 168 N.W.2d 65 (1969). An abuse of discretion exists if the trial court failed to exercise its discretion or if there was no reasonable basis for its decision. Wisconsin Public Service Corp. v. Krist, 104 Wis. 2d 381, 395, 311 N.W.2d 624 (1981); McCleary v. State, 49 Wis. 2d 263, 278, 182 N.W.2d 512 (1971). Based on the record in this case, we conclude that the trial court did not abuse its discretion in denying defense counsel's motion for a continuance.

The court of appeals held that the trial court failed to exercise its discretion. According to the appellate court, "he trial court simply assumed that the unexplained absence of the defendant was an attempt to avoid trial and an indication of a lack of defense." We disagree. The record indicates that the trial court considered factors relevant to the motion for the continuance, including the motive for Pohlhammer's absence and the cost of a delay. Therefore, its decision to deny the continuance was an exercise of discretion.

Furthermore, there was a reasonable basis for the court's decision. This court has held that where there is no good cause for a defendant's absence from trial, a motion to continue the case on that basis may be properly denied. Schweitzer v. Doepke, 195 Wis. 341, 343, 218 N.W. 188 (1928). Allis and Others v. The Meadow Spring Distilling Co., 67 Wis. 16, 21, 29 N.W. 543 (1886). This is particularly true when the real purpose in moving for a continuance is to delay the trial. Estate of Hatten, 233 Wis. 256, 263, 289 N.W. 630 (1940). In the instant case the trial court was not satisfied that there was good cause for Pohlhammer's absence. The record indicates that both the court and defense counsel informed Pohlhammer that the case had been transferred for immediate trial. Nevertheless, Pohlhammer left and did not return. Based upon these facts, the trial court concluded that Pohlhammer purposely absented himself to avoid trial. The court reaffirmed this Conclusion in denying Pohlhammer's motion for a new trial. Although Pohlhammer submitted an affidavit which stated that, because of a hearing disorder, he did not hear or understand that the trial was to be held that day, the court noted that he never explained what he thought was going to happen to his case.

We find that the trial court reasonably exercised its discretion in denying the continuance. Thus the trial court's ruling must be affirmed.

II.

Sec. 814.025, Stats., empowers a court to assess reasonable attorney fees against an attorney who presents a frivolous ...


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