Martin v. Wyatt

The defendants were entitled to a dismissal of the plaintiffs' injury suit because the plaintiffs failed to respond to a mandatory calendar call and the attorney who told the clerk that he was sick and unable to attend was not plaintiffs' counsel of record.

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Lithford and Virginia Martin appeal the trial court’s dismissal of their complaint for lack of prosecution. We conclude that the trial court did not abuse its discretion in dismissing the complaint and affirm.

The Martins dismissed their first personal injury suit against Hazel and Edward Wyatt on March 21, 1997, and refiled it on September 22, 1997. On February 2, 1999, the Wyatts moved to dismiss the complaint for failure to prosecute because no counsel of record responded on behalf of the Martins at a mandatory calendar call on Feb. 1, 1999, and the attorney who told the clerk he was ill and unable to attend was not the counsel of record. The trial court granted the motion of February 12, 1999, finding that the case had been placed on the February 1, 1999, trial calendar and “counsel for plaintiff failed to appear. No announcement was made by counsel of record. Instead, counsel telephoned the Court and stated he was ill.” The court concluded that the law required counsel who sought a continuance due to illness to present a doctor’s affidavit that specifically included the style of the case. Because counsel did not submit such an affidavit, the trial court dismissed the case for want of prosecution. The trial court’s order of dismissal, however, was styled with the case number of the Martins’ first, dismissed, civil action, and not the one pending before the trial court at that time.

Martin v. Wyatt

The defendants were entitled to a dismissal of the plaintiffs' injury suit because the plaintiffs failed to respond to a mandatory calendar call and the attorney who told the clerk that he was sick and unable to attend was not plaintiffs' counsel of record.

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