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Bench and BarThe newsletter of the ISBA’s Bench & Bar Section Council

August 2010, vol. 41, no. 1

A refresher course on continuances—Stumbling blocks and issues for practitioners and judges to consider

Our best efforts to efficiently complete tasks are inevitably thwarted by the unexpected. For attorneys, these unwelcome interruptions often result in emergency court appearances requesting continuance. A common misconception is that courts grant continuances at will. However, bases for continuances exist in statutes and court rules. This article reviews proper procedures for motioning and obtaining a continuance. It also discusses common issues raised on appeal and steps courts can take to ensure their decisions are upheld on review.

Governing Law

Civil continuance practice in Illinois is governed by Illinois Supreme Court Rule 231 (Rule 231), Section 2-1007 of the Code of Civil Procedure (735 ILCS 5/2-1007) and in Cook County by Local Rule 5.2 (Rule 5.2).

Rule 231 provides guidelines for situations in which a continuance will be permissible, the first of which is the absence of material evidence. Id. In such cases the motion “shall be supported by the affidavit of the party,” which shall show:

(1) that due diligence has been used to obtain the evidence, or the want of time to obtain it; (2) of what particular fact or facts the evidence contains; (3) if the evidence consists of the testimony of a witness, his place of residence, or if his place of residence is not known, that due diligence has been used to ascertain it; and (4) that if further time is given the evidence can be procured.

Rule 231(a).

Rule 231(c) provides two additional bases for continuance. The first focuses on times of war; a necessary party that is in the military service “of the United States or of this State” in times “of war or insurrection” has sufficient cause for a continuance, so long as “his military service materially impairs his ability to prosecute or defend the action.” Rule 231(c) (1). The second ground for continuance centers on membership in the General Assembly during the time that the Assembly is in session: in the case of a party, his presence must be “necessary for the full and fair trial of the action,” and in the case of an attorney, he must have been “retained by the party prior to the time the cause was set for trial.” Rule 231(c) (2). Continuances based on amendments are provided for in Rule 231(d); in such cases the party, his agent or his attorney must “make affidavit that, in consequence [of the amendment], he is unprepared to proceed to or with the trial.” Rule 231(d).

The Code of Civil Procedure provides further guidelines for continuances. 735 ILCS 5/2-1007 (2007). If a party’s attorney is a “bona fide member” of a religion that requires he refrain from work or attend religious services and he requests a continuance to observe such practices, it is “sufficient cause for the continuance of any action.” Id. Sufficient cause for a continuance also exists when a party or his attorney “is a delegate to a State Constitutional Convention during the time” it is in session. Id. As in Rule 231, parties described here must be “necessary for the full and fair trial of the action” and attorneys must have been retained “prior to the time the cause was set for trial.” Id. In general, the statute provides that continuances may be granted “[o]n good cause shown, in the discretion of the court and on just terms.” Id.

Lastly, the Circuit Court of Cook County imposes additional situational based guidelines. Rule 5.2 states that attorneys may seek a continuance for the duration or period they are actually engaged in another trial or hearing. Rule 5.2. However, Rule 5.2(a) only applies to the attorney who filed his trial appearance at the pretrial conference. Also, this rule precludes the same party from motioning for another continuance on the grounds of prior engagements. Id. Next, continuances cannot be granted on the basis of substitution or addition of attorneys. Rule 5.2(b). Finally, the rule addresses procedural circumstances unique to the Circuit Court; once a central assignment judge denies a motion for a continuance that same motion cannot be renewed before the trial judge. Rule 5.2(c).

Refresher course on how to obtain a continuance

Movants for a continuance should keep three key practice points in mind at all times. First, always consult the rules and regulations mentioned above. Rule 5.2 is a variation on general Illinois continuance rules; therefore, all practitioners should thoroughly examine it, especially those who typically practice outside Cook County. Second, follow the rules. For example, if the rules or statute request that an affidavit accompany a motion, then make sure to include it. Third, and most importantly, motions for continuance should be in writing, though only specifically required in cases involving building code violations or violations of municipal ordinances (as noted in Sec. 5/2-1007). As discussed further below, written motions for continuance afford a party the most protection when it comes to appellate review.

Commonly raised issues on appeal

On appeal, courts hear issues that may be broadly categorized into the following groups: preference for written motions, absence of material evidence, due diligence and motions based on amendment. Despite strict requirements for continuances in statutes and rules, as seen above, courts have largely relied on their own discretion when ruling on such motions, espousing the opening sentence of the statute itself. Sec. 2-1007. The general principle in continuance cases is that the courts’ discretion reigns supreme. See, In re Hannah E., 376 Ill.App.3d 648, 655, 877 N.E.2d 63, 70 (2007); Le Febvre v. The Indus. Comm’n, 276 Ill.App.3d 791, 794-5, 659 N.E.2d 1, 3 (1995); Farrar v. Jacobizzi, 245 Ill.App.3d 26, 29, 614 N.E.2d 259, 261 (1993). Therefore, when reviewing cases on appeal, appellate courts focus on the possible abuse of discretion by trial courts in allowing or denying the continuance. See Meyerson v. Software Club of America, 142 Ill.App.3d 87, 92, 491 N.E.2d 150, 153 (1986); Gallagher v. Swiatek, 106 Ill.App.3d 417, 421, 435 N.E.2d 1287, 1290 (1982).

Though only required in specific cases outlined in Sec. 5/2-1007, written motions for continuance provide the most protection to movants. This is because successful motions for continuance are largely presented in written form. In practice it has proven to be difficult to obtain a continuance on oral motion alone. See, Debolt v. Wallace, 56 Ill.App.2d 380, 206 N.E.2d 469 (1965). In Debolt, defense counsel orally moved for continuance in hopes of a securing testimony of a witness but did not file a written motion or affidavit. See id. The motion was denied and on appeal the ruling was upheld, the court being unwilling to overturn the decision of a trial court in cases where there was “no written motion accompanied by affidavit.” 56 Ill.App.2d at 384, 206 N.E.2d at 472. In effect, then, it is very difficult to obtain a reversal on a denial of oral continuance at the appellate level.

Absence of material evidence, including absence of witnesses, is one of the more common bases for a continuance; accordingly, much of the litigation on continuances focuses on this topic. First, the lack of an affidavit warrants the denial of a continuance. See, Wine v. Bauerfreund, 155 Ill.App.3d 19, 24, 507 N.E.2d 155, 157-58 (1987). In Wine, the motion for continuance was presented in written form only after an oral motion was made, and the written motion did not include an affidavit as to the specific reasons defendant could not return for trial. 155 Ill.App.3d at 23-4, 507 N.E.2d at 157-58. The court reasoned that “[t]he failure to file such an affidavit, standing alone, warrants the exercise of the court’s discretion in denying the requested continuance.” 155 Ill.App.3d at 24, 507 N.E.2d at 157.

Even though the First District in Wine upheld the denial of a continuance, the Second District has found the granting of a continuance to be proper in some cases even without the presence of an affidavit. See id. But see Rutzen v. Pertile, 172 Ill.App.3d 968, 527 N.E.2d 603, 607 (1988). In Rutzen, the court distinguishes Wine, noting that the continuance requested at hand was merely to allow parties, who were on their way to the courthouse, enough time to arrive given a delay in travel. 172 Ill.App.3d at 975, 527 N.E.2d at 608. Since the witnesses were available but running late, the court found that it would be “exalting form over substance” to “refuse to give a short continuance where the witnesses are available and the proceedings have not yet concluded.” Id. The court strived to ensure that “substantial justice is being done between the litigants and . . . it is reasonable.” 172 Ill.App.3d at 974, 527 N.E.2d at 607 (citation omitted).

The requirement of due diligence is another area ripe with litigation. Courts analyze specific facts to determine whether a party exercised due diligence; here, the Rule again defers to the discretion of the court. See Curtin v. Ogborn, 75 Ill.App.3d 549, 554, 394 N.E.2d 593, 597-98 (1979); Duran v. Chicago & N.W. Ry. Co., 26 Ill.App.3d 645, 646-7, 325 N.E.2d 368, 369-70 (1975) (citation omitted).

In Duran, plaintiff filed his cause of action, answered interrogatories, completed depositions, and took part in a pretrial conference. See Duran, 26 Ill.App.3d at 647, 325 N.E.2d at 369-70. The court found that this showed an exercise of due diligence, and upheld the lower court’s ruling granting the continuance requested by plaintiff. Id. Similarly, the court in Curtin found the denial of a continuance to be proper and not an abuse of discretion when plaintiff “ignored the advice of their attorney and failed to appear for trial.” Curtin, 75 Ill.App.3d at 553, 394 N.E.2d at 597. Though the record did “not indicate” any lack of due diligence on the part of plaintiffs, the court reasoned that plaintiff’s neglect of their attorney’s advice was enough for the trial court to deny the motion. Id.

Courts have generally denied motions for continuance based on amendment as provided by Rule 231(d). The First District found that the denial of a continuance was not an abuse of discretion even though it allowed an amended complaint on the date of trial, noting that “we find ourselves yet again surprised that counsel for [defendant] did not foresee that it might be necessary on the date set for trial to litigate the merits of the claim.” Henderson-Smith & Assocs., Inc. v. Nahamani Family ServsCtr., Inc., 323 Ill.App.3d 15, 27-8, 752 N.E.2d 33, 44 (2001). That court has been rather consistent with this view, previously upholding the denial of a continuance when a party was “amply aware of the issues put in dispute” even though no answer to a newly amended complaint had been filed. McDermott v. Metro Sanitary Dist., 240 Ill.App.3d 1, 41, 607 N.E.2d 1271, 1295 (1992).

The issue of when a party seeks a continuance assumes particular importance when determining the manner in which appellate review is conducted. Though the standard of review is the same—abuse of discretion—“especially grave reasons must be given to justify a continuance once the case has reached the trial stage.” Meyerson, 142 Ill.App.3d at 92, 491 N.E.2d at 153. It seems that appellate courts accord more deference to the trial judge’s discretion in reviewing cases where continuances were sought during the trial stage. 142 Ill.App.3d at 92-3, 491 N.E.2d at 153-54.

In Meyerson, the appellate court found no abuse of discretion when reviewing a continuance denied at the trial stage. 142 Ill.App.3d 89-93, 491 N.E.2d at 152-54. Relying on precedent from Gallagher, in which a continuance was denied even though counsel attended the funeral of the wife of a circuit judge, the court noted that defendant had not cited any case in which the court was found to have abused its of discretion in denying a continuance where counsel would have had to interrupt vacation plans. 142 Ill.App.3d at 92, 491 N.E.2d at 153.

Unlike Gallagher, the Meyerson case involved several continuances both by agreement and over plaintiff’s objection. 142 Ill.App.3d at 92, 491 N.E.2d at 153. A fact intensive case, the motion for continuance brought on appeal stemmed from defense counsel’s argument that he had previously scheduled vacation plans on the court’s suggested trial date. In declining to disturb the finding of the trial judge, the court iterated an important factor to consider when determining the propriety of a continuance due to counsel’s actions—“the degree of diligence exercised by the party seeking the continuance.” 142 Ill.App.3d at 92, 491 N.E.2d at 153. In this case, defendant discharged his attorney one day before the scheduled trial date, stated he expected the court to rule in plaintiff’s favor, and the court already granted numerous continuances over plaintiff’s objection. Therefore, the court ultimately affirmed the denial of continuance. 142 Ill.App.3d at 92, 491 N.E.2d at 154.

Refresher course on items to keep in mind when determining whether to grant a continuance

Based on the analysis above, it would behoove judges to keep the following three points in mind when determining whether to grant a continuance. First, the court must look for the presence of an affidavit. As mentioned above, appellate courts have held that the lack of an affidavit warrants the denial of a continuance. See Wine, 155 Ill.App.3d at 24, 507 N.E.2d at 157. In cases where an affidavit has not been filed, the judge still possesses the discretion to grant the continuance; however, it is possible that on appeal the decision will be overturned. Under those circumstances, the trial court’s decision (and subsequent appellate review) hinges on a fact intensive review of each case. See Rutzen, 172 Ill.App.3d at 974, 527 N.E.2d at 607.

Next, judges should remember that movants bear the duty of due diligence: if a party moves for continuance having not adequately performed his duties in his case, the appropriate decision is likely to deny the decision. Contra, Duran, 26 Ill.App.3d at 647, 325 N.E.2d at 369-70. Finally, judges should base their decisions partly on when, in the course of proceedings, the continuance is requested. Though the court has broad discretion to grant a continuance before the trial stage, after that point the reasons given must be “especially grave.” Meyerson, 142 Ill.App.3d at 92, 491 N.E.2d at 153. For the trial court judge, this means that continuances granted at the trial stage are more likely to be challenged on appeal, so judges must be especially aware of the first two suggestions mentioned above.

Overall continuance practice is simple and straightforward. Unfortunately, courts see, with increasing frequency, movants who presume their requests should and will be granted. On any given day, it is not uncommon to see them argue with the court and each other regarding why a continuance is proper. In addition to the above referenced rules, statues, case law and practice pointers, parties should never overestimate the power of basic civility in the courtroom. ■


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