Freeman v. Monroe

373 S.E.2d 443 (1988)

92 N.C. App. 99

Peggy Hutchins FREEMAN, Plaintiff, v. Dr. John H. MONROE, M.D., Forsyth Gynecologic Associates, P.A., Dr. Robert L. Means, M.D., Forsyth Surgical Associates, P.A., Dr. John C. Faris, M.D., Breast Clinic, Inc., Defendants.

No. 8821SC26.

Court of Appeals of North Carolina.

November 15, 1988.

*444 Kenneth Clayton Dawson and Billy R. Craig, Winston-Salem, for plaintiff-appellant.

Marshall, Williams, Gorham & Brawley by Lonnie B. Williams, Wilmington, for defendant-appellee Dr. John C. Faris.

Tuggle Duggins Meschan & Elrod by Sally A. Lawing, Greensboro, for defendant-appellee Breast Clinic, Inc.

PHILLIPS, Judge.

The first of two questions raised by this appeal is whether the denial of plaintiff's motion to continue the summary judgment hearing was an abuse of the court's discretion. We hold that it was. Though the refusal of a continuance is within the sound discretion of the trial court and ordinarily will not be interfered with on appeal, State v. Rhodes, 202 N.C. 101, 161 S.E. 722 (1932), any discretionary ruling that is "manifestly unsupported by reason," White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985), is an abuse of discretion and subject to reversal; and the record in this case shows no reason whatever for refusing the continuance and a compelling reason for granting it. In our jurisprudence it is fundamental that each litigant must have a fair opportunity to present his side of the case to the deciding tribunal; but in this case plaintiff was deprived of the opportunity to present to the court the most important part of her evidentiary forecast because the court was unwilling for no manifest reason to delay the summary judgment hearing even for a few days. Nothing in the record supports the ruling. There is no indication that the affidavit could or should have been obtained earlier; or that the failure to get it *445 was due to any fault of plaintiff or the expert; or that plaintiff had been dilatory either during or after discovery. As Judge Wood found earlier, plaintiff's case against defendant appellees largely depends upon the opinion testimony of her expert witness concerning the xerograms; testimony that the court could not have reasonably expected to receive immediately after discovery ended even if the witness had not been on vacation. For under the circumstances the witness could not be expected to formulate his opinions before examining the belatedly delivered xerograms and the depositions concerning them, and mailing an affidavit to Massachusetts and getting it back requires time. Nor is there any indication that the few days delay plaintiff requested could have adversely affected either the defendants' rights or the proper administration of justice; the indication rather is that the delay would have enabled plaintiff to fully respond to defendants' motions and would have permitted the court to have before it the complete evidentiary forecasts of all the parties before ruling on plaintiff's right to pursue her action further. Though undue delay in the processing of cases is to be avoided, not all delay is undue; and the court's primary duty in the instance recorded was not to avoid delay, but to rule judiciously in light of the circumstances that made it impossible for plaintiff, through no fault of hers, to fairly present her side of the case at the time scheduled, and that was not done.

Because of the foregoing determination the other question arguedwhether the above described evidence, including the testimony of Dr. Choplin, when viewed in its most favorable light for the plaintiff as our law requires, Page v. Sloan, 281 N.C. 697, 190 S.E.2d 189 (1972), raises an issue of fact as to the negligence of the defendant appelleesneed not be determined.

VACATED AND REMANDED.

JOHNSON and SMITH, JJ., concur.