§40.7 Significant Authorities

JurisdictionWashington

§40.7 SIGNIFICANT AUTHORITIES

This section analyzes the authorities that have interpreted CR 40 as it has been applied to issues regarding the setting of trials, obtaining continuances for good cause, and changing judges based on bias or prejudice.

(1) Notice of trial; note of issue

A case is not at issue until an answer is served. Storey v. Shane, 62 Wn.2d 640, 384 P.2d 379 (1963).

The court exceeded its procedural powers and abused its discretion by noting a matter for trial although no responsive pleadings had been filed and the case was not at issue. Swan v. Landgren, 6 Wn.App. 713, 495 P.2d 1044 (1972).

When a notice of trial setting was filed but not served, and the defendant's attorney participated in the trial setting, defendant waived any right to raise the failure to serve the notice. Friese v. Adams, 44 Wn.2d 305, 267 P.2d 107 (1954).

The court did not abuse its discretion in dismissing plaintiff's complaint with prejudice when the plaintiff failed to appear at trial and caused delay. Wagner v. McDonald, 10 Wn.App. 213,516 P.2d 1051 (1973). Whether a dismissal is with or without prejudice is within the court's discretion. In re Bet. ofG. V., 124 Wn.2d 288,877P.2d680 (1994).

A party who is absent for trial is entitled to notice of presentation of the judgment pursuant to CR 52(c). The failure to give five days' notice of the proposed findings and conclusions was error and required the findings of fact, conclusions of law, and judgment to be vacated. Tacoma Recycling, Inc. v. Capitol Material Handling Co., 34 Wn.App. 392, 661P.2d609 (1983).

(2)Continuance of trials

Motions for continuance and reconsideration are matters within the discretion of the trial court and are reversible only upon a showing of manifest abuse of discretion. State v. Miles, 77 Wn.2d 593,464 P.2d 723 (1970); Coggle v. Snow, 56 Wn.App. 499, 784 P.2d 554 (1990).

Denial of a motion for continuance was not an abuse of discretion because the moving party failed to demonstrate good cause for failure to timely obtain evidence to respond to a summary judgment motion. Carr v. Deking, 52 Wn.App. 880, 765 P.2d 40 (1988), review denied, 112 Wn.2d 1019 (1989).

In exercising its discretion to grant or deny a motion for continuance, the court may properly consider the necessity of reasonably prompt disposition of the litigation, the needs of the moving party, the possible prejudice to the adverse party, the prior history of the litigation, any conditions imposed in the continuances previously granted, and any other matters that have a material bearing upon the exercise of the discretion vested in the...

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