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Davis v. Osinuga

Court of Appeals of Georgia

December 8, 2014

DAVIS et al.

Continuance. DeKalb State Court. Before Judge Ross.

Joseph H. King, Jr., for appellants.

Huff, Powell & Bailey, Daniel J. Huff, The Jarman Firm, Camille N. Jarman, for appellees.

ELLINGTON, Presiding Judge. Phipps, C. J., and McMillian, J., concur.


Ellington, Presiding Judge.

Diane Eldredge Davis and Jesse Randolph Eldredge (collectively, " the Eldredges" ), as the survivors of their father,

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Jesse Belton Eldredge, brought this medical malpractice wrongful death action in [330 Ga.App. 279] the State Court of DeKalb County against Oladayo Osinuga, M.D., and against his employer, East Point Primary Care Center, P.C. (collectively " Dr. Osinuga" ). When the trial court called the case for trial, the Eldredges applied for a continuance on the basis that, as of the preceding business day, they were unable to present the testimony of their only expert witness. After a hearing, the trial court denied the Eldredges' application for a continuance. Because the Eldredges were unable to move forward with their case without expert testimony, the trial court also dismissed the Eldredges' action for want of prosecution. The Eldredges appeal, contending, inter alia, that the trial court abused its discretion in denying their application for a continuance.

A motion for continuance of a trial is properly addressed to the sound legal discretion of a trial judge,[[1]] who is in control of the management of the case in court. The exercise of that discretion will not be disturbed by the appellate courts unless the discretion is manifestly abused.

(Citations and punctuation omitted.) In re Estate of Jackson, 241 Ga.App. 392, 393-394 (1) (526 S.E.2d 884) (1999).[2]

The record shows the following material facts. The Eldredges' action concerned Dr. Osinuga's treatment of their father in April 2007. They filed their action in April 2009, together with an affidavit executed by Kelly Thrasher, M.D., as required by OCGA § 9-11-9.1.[3] In January 2013, after Dr. Thrasher was arrested on felony and misdemeanor charges, the Georgia Composite Medical Board suspended his license to practice medicine.

[330 Ga.App. 280] In April 2013, Dr. Osinuga, through his counsel, inquired whether the Eldredges still planned to call Dr. Thrasher as an expert witness at trial. He advised them that he intended to oppose any attempt to continue the case because of Dr. Thrasher's legal problems.

The trial court issued jury trial calendars that included the Eldredges' case in September 2011, July 2012, and October 2013, but the case was either continued or not reached each time. On January 1, 2014, the trial court issued a notice that the case was on a jury trial calendar for the week of February 10, 2014. On January 14, Dr. Thrasher was arrested for practicing medicine without a license. On February 7, the business day before trial was to begin in the Eldredges' case, the Superior Court of Fulton County modified the conditions of Dr. Thrasher's bail, specifying that he could not give his medical opinion on any matter, including testifying in any legal proceedings. This condition prevented the Eldredges from calling Dr. Thrasher as an expert witness at trial. On February 10, the day trial was to begin, the Eldredges applied for a continuance.

At the hearing on the Eldredges' request for a continuance, their counsel conceded that they could not prove their case without expert opinion testimony and that, with Dr. Thrasher's criminal charges unresolved, they could not state that they expected to be able to procure Dr. Thrasher's testimony at the

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next term of court. The trial court observed that the Eldredges had been aware of Dr. Thrasher's legal issues and " tenuous personal situation" at least since January 2013 and had been aware of Dr. Osinuga's opposition to continuing the trial at least since April 2013, yet they failed to bring another expert into the case and failed to preserve Dr. Thrasher's testimony with an evidentiary deposition. The trial court determined that, under the circumstances, a continuance was not appropriate and denied their application.

1. The Eldredges contend that the trial court's ruling was not based on an " applicable reason" and that the trial court therefore abused its discretion in denying their application. This argument lacks merit.

Under Georgia law, an application for a continuance based upon the absence of a witness shall set forth eight different requirements, including that " the applicant expects he will be able to procure the testimony of the witness at the next term of the court[.]" OCGA § 9-10-160 (6).[4] This statute applies to expert witnesses as well as to fact witnesses. Carter v. Murphey, 241 Ga.App. 340, 342-344 (1) (526 [330 Ga.App. 281] S.E.2d 149) (1999). " Where any one of [OCGA § 9-10-160's] requirements is not met, there is no abuse of the trial court's discretion to deny a continuance." (Citation omitted.) Tucker v. Signature Flight Support-Savannah, Inc., 219 Ga.App. 834, 835 (466 S.E.2d 694) (1996). Given that the Eldredges could not represent to the trial court that they could have Dr. Thrasher available to testify at the next term of court, the record shows that the Eldredges failed to meet the requirements of OCGA § 9-10-160.[5]

Even if this were not enough to justify denying the application for a continuance, the Civil Practice Code provides that " [a] party making an application for a continuance must show that he has used due diligence." OCGA § 9-10-166. The evidence authorized the trial court to find that the Eldredges had not been diligent in securing the attendance, or preserving the testimony, of a material witness whose availability was uncertain.[6]

Based on the foregoing, the trial court did not abuse its discretion in denying the Eldredges' application for a continuance.

2. The Eldredges enumerated two other claims of error but failed to support those claims with citation to the record, citation of authority, or legal argument. Accordingly, these claims present no basis for reversal. See Court of Appeals Rule 25 (c) ( " Any enumeration of error [330 Ga.App. 282] which is not supported in the brief by citation of authority or argument may be deemed abandoned." ); Dixon v. MARTA, 242 Ga.App. 262, 266 (4) (529 S.E.2d 398) (2000) (legal argument requires the application

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of the appropriate law to the relevant facts).

Judgment affirmed.

Phipps, C. J., and McMillian, J., concur.

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