John Herzog, Sr., M.D. v. Thomas Glover

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

CA 02-796

JOHN L. HERZOG, SR., M.D., et al.

APPELLANTS

v.

THOMAS GLOVER

APPELLEE

September 22, 2004

APPEAL FROM JEFFERSON

COUNTY CIRCUIT COURT

[CIV 97-250-2]

DISSENTING OPINION ON DENIAL OF REHEARING

Andree Layton Roaf, Judge, dissenting. I would grant rehearing and reverse and remand this case for new trial based on the denial of John Herzog's motion for a continuance. Herzog has asserted that this court relied on cases not controlling on the issue of the trial court's denial of his motion, and failed to address the situation where a trial court grants a last-minute attorney withdrawal, coupled with a denial of any future continuances before any such continuance has been sought. I agree, and conclude that the case authority relied upon by Herzog, Butler v. State, 339 Ark. 429, 5 S.W.3d 466 (1999); Greene v. State, 335 Ark. 1, 977 S.W.2d 192 (1998); and Sikes v. Segers, 266 Ark. 654, 587 S.W.2d 554 (1979), is more analogous and applicable to the issue and facts of Herzog's case than the cases relied upon by the majority. In this instance, as in Sikes, the trial court allowed a late-hour withdrawal of counsel and stated before a motion for continuance was even filed that no future continuances would be granted. The supreme court found this to be an abuse of discretion. Moreover, there is no evidence in this case that Herzog was intentionally hiring and firing new attorneys to delay the trial, and due to the extent of preparation needed in this case as well as the delay in deposing a key witness, I believe that the trial court abused its discretion in allowing Herzog's attorneys to withdraw little more than a month before trial and then denying a continuance, which was repeatedly requested by new counsel.

I would reverse and remand this case for a new trial based on the denial of a continuance. Consequently, I do not address Herzog's second basis for requesting rehearing, that this court incorrectly relied on a written clause providing for payment of attorney's fees that was contained in three promissory notes not the subject of the lawsuit brought against Herzog, in concluding that appellee Glover was entitled to attorney's fees for expenses incurred in collection of a fourth promissory note that contained no such contractual provision.

Hart and Robbins, JJ., join.