Thank you for sharing!

Your article was successfully shared with the contacts you provided.
Click here for the full text of this decision FACTS:Ann Keough appeals the denial of her motion to reinstate this personal injury action on the ground that her attorney’s disbarment, effectively terminating the attorney-client relationship, and her lack of knowledge of the disbarment or trial setting, were good cause for her failure to appear at trial. HOLDING:Reversed and remanded. No notice of intent to dismiss for failure to diligently prosecute under the trial court’s inherent authority was pending on the date the case was set for trial. The record does not reflect the content of, or grounds asserted in, appellees’ motion to dismiss. Without having given notice of an intent to dismiss, and without giving notice of, and holding, a hearing at which Keough was given an opportunity to show good cause for the case to be maintained on the docket, the trial court had no discretion to dismiss for any reason other than failure to appear. Rather than presume that the trial court committed reversible error (by dismissing under its inherent authority for failure to diligently prosecute), the court interprets the dismissal order in favor of a construction that correctly applies the law and reviews this case as a dismissal and motion to reinstate for failure to appear. Keough’s verified motion for reinstatement asserted that her failure to appear was “unavoidable” because her counsel of record was unable to practice law due to a pending disciplinary proceeding. However, attached to appellees’ response to the motion to reinstate was an exhibit showing that Keough’s counsel had been disbarred roughly six weeks before the trial date, which had been set more than two months before the date of disbarment. Therefore, it was not apparent at the time of the denial of reinstatement why Keough’s failure to appear was unavoidable due to her attorney’s previous disbarment; that is, why it prevented her from hiring new counsel or at least appearing in court to request a continuance. In addition, although Keough contends on appeal that she did not know of the disbarrment or the trial setting, the record contains no evidence to support these allegations. Importantly, however, the justification necessary to require reinstatement does not require a reasonable justification for making the mistake, but only a justification consisting of a mistake, as contrasted from conscious indifference. Therefore, even if Keough’s failure to appear in this case resulted from a complete lack of diligence, the explanation she provided in her motion to reinstate did not amount to conscious indifference, and the trial court did not have discretion to deny it. OPINION:Edelman, J.; before Edelman, Seymore and Guzman, JJ. DISSENT:Guzman, J. “Because the majority concludes the trial court lacked discretion to deny appellant’s motion to reinstate where appellant offered no evidence that she was unaware of her attorney’s disbarrment or of the trial setting, and no explanation of her failure to attend trial or to obtain other counsel, I respectfully dissent. As an independent basis for dissent, I disagree with the majority’s conclusion that the trial court lacked the authority to dismiss the case for want of prosecution where the appellant’s lack of advance notice of the dismissal was subsequently cured.”

Want to continue reading?
Become a Free ALM Digital Reader.

Benefits of a Digital Membership:

  • Free access to 1 article* every 30 days
  • Access to the entire ALM network of websites
  • Unlimited access to the ALM suite of newsletters
  • Build custom alerts on any search topic of your choosing
  • Search by a wide range of topics

*May exclude premium content
Already have an account?


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.