In K&K Iron Works v. Marc Realty, LLC, 2014 IL App(1st) 133688, a construction dispute involving a Chicago fitness center, the court discusses the factors a court considers when deciding whether to grant a trial continuance. There, on the day of trial, after several years of litigation, the property manager defendant fired its attorney and sought a continuance (through its corporate agent). The trial judge denied the continuance and entered a $150,000-plus judgment for the plaintiff subcontractor.
Affirming the trial court, the First District enunciated the key legislative, judicial and local court rules that together govern a court’s analysis when faced with a motion to continue trial:
– A litigant doesn’t have an absolute right to a continuance;
– The decision to grant or deny a motion for continuance is within sound discretion of the trial court and won’t be disturbed on appeal absent a “palpable injustice” or a “manifest abuse of discretion”;
– Section 2-1007 allows additional time for doing any act in the litigation process on “good cause shown”;
– Illinois Supreme Court Rule 231(f) provides that no continuance motion will be granted after the case has reached trial unless a sufficient excuse for the delay is shown;
– Once a case gets to trial, a continuance will only be allowed where the movant offers “especially grave reasons” for the continuance such as potential inconvenience to the witnesses, parties, and the court;
– Cook County Circuit Court Rule 5.2(b) provides that a continuance will not be granted on the basis of a substitution or addition of attorneys;
– There is no constitutional right to counsel in a civil trial between corporations;
– An important continuance factor is the degree of diligence (during the whole case) shown by a party that seeks the continuance;
(¶¶ 22-25); 735 ILCS 5/2-1007; SCR 231(f); Cook Co. Cir. Ct. R. 5.2(b)
Affirming the denial of the continuance, the Court noted that the property manager defendant had multiple chances to seek a continuance before the trial date. By waiting until the day of trial, the defendant gambled (and lost) that the judge would give it additional time to secure alternate counsel.
The Court also rejected the defendant’s argument that under Supreme Court Rule 13 (the rule that governs withdrawal of counsel), it should have been given 21 days to find substitute counsel. The Court noted that here, the defendant’s counsel didn’t withdraw. Instead, the defendant chose to fire its attorney on the eve of trial. As a result, Rule 13’s 21-day period to find substitute counsel didn’t apply.
(1) A litigant’s right to a continuance of a trial has limits and the closer to the trial date, the harder it is to get a continuance;
(2) If a litigant moves for continuance on day of trial, he must show extreme necessity;
(3) waiting to fire an attorney on day of trial is a risky gambit;
(4) The 21-day period to get substitute counsel under Rule 13 doesn’t apply where a defendant fires a lawyer as opposed to that lawyer moving to withdraw.