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Roberts v. Pointer

Trial court erred in denying the defendant's motion for a continuance due to the unavailability of an expert witness, because the pre-trial order specifically allowed the defendant to reserve the right to call additional witnesses with sufficient notice.

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Devin Roberts appeals from a judgment entered in favor of Michael and Debra Pointer on the Pointers’ claim for damages arising out of an automobile accident. The parties did not dispute Roberts’ liability, leaving the jury to determine the amount of damages to be awarded to the Pointers.1 Roberts now appeals, claiming that the trial court erred in denying the motion for a continuance he filed due to the unavailability of an expert witness. Because the trial court abused its discretion in denying the motion, we reverse. “A motion for a continuance based on an absent witness is addressed to the sound legal discretion of the trial court and no error will be assigned unless it appears that the trial court abused that discretion in passing on the motion.” Citation and punctuation omitted. Surgijet, Inc. v. Hicks , 236 Ga. App. 80, 82-83 4 511 SE2d 194 1999.

The record reveals that on March 28, 2008, the trial court entered a consolidated pretrial order in which each party identified individuals as witnesses that “may” or “will” testify at trial. The pretrial order also provided that “Roberts reserves the right to call additional witnesses provided their names and addresses are provided to the Pointers with sufficient notice prior to trial.” The Pointers made a similar reservation.

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