This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-1775

 

In re Estate of Ernestine Terese Hill,

a/k/a Ernestine C. Hill and Ernestine Hill

 

Filed June 1, 2004

Affirmed

Minge, Judge

 

St. Louis County District Court

File No. P8-02-600167

 

 

Melanie S. Ford, 2892 East Pioneer Road, Duluth, MN 55804-9711 (for appellant)

 

James R. Cope, Cope & Peterson, Ltd., 415 South First Street, Virginia, MN 55792 (for respondent)

 

††††††††††† Considered and decided by Harten, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D† O P I N I O N

MINGE, Judge

Appellant argues that the district court abused its discretion by denying her request for a continuance.† Because the district court had granted several continuances and because appellant failed to retain new counsel despite having ample time to do so, we affirm.

D E C I S I O N

††††††††††† Ernestine C. Hill died on September 17, 2001, leaving a will that nominated respondent Sharon A. Lassila as personal representative.† Respondent filed a petition for formal probate of the will and for formal appointment of a personal representative on April 8, 2002.† Appellant Carol J. Driscoll objected, alleging that the decedent lacked testamentary capacity and intent and that respondent engaged in fraud, undue influence, and duress to obtain decedentís assets.

The question on appeal is whether the district court abused its discretion in denying appellantís request for a continuance.† We will not reverse a district courtís decision to grant or deny a continuance absent a clear abuse of discretion.† Southwest Fid. State Bank v. Apollo Corporate Travel Inc., 360 N.W.2d 668, 670 (Minn. App. 1985).† In determining whether the district court abused its discretion, we must determine whether the decision not to continue the matter would prejudice the outcome of the proceeding.† Lanzo v. F & D Motor Works, 396 N.W.2d 631, 635 (Minn. App. 1986).† ď[A] party must be afforded a reasonable opportunity to prepare a case.Ē† Cotroneo v. Pilney, 343 N.W.2d 645, 650 (Minn. 1984).† Nevertheless, a party requesting a continuance must have made a diligent effort to prepare for trial.† Kissner v. Norton, 412 N.W.2d 354, 357-58 (Minn. App. 1987); Westbrook State Bank v. Anderson Land & Cattle Co., 364 N.W.2d 416, 420 (Minn. App. 1985).

Here, appellant filed her objection to the appointment of respondent as personal representative and to the formal probate of the will on April 19, 2002.† The matter was set for pre-trial on June 6, 2002.† At that time, appellant was represented by counsel.† Hearings on the matter were continued on June 6, August 1, September 11, and November 25, 2002, and January 2 and February 21, 2003.† The majority of these continuances were a result of requests made by counsel for both parties for more time to conduct discovery.† The January 2 continuance was the result of appellant hiring a second attorney who needed time to become familiar with the case.† Following this series of continuances, the district court set the hearing date for April 3, 2003.

At the April 2003 hearing, neither appellant nor her counsel appeared in court, respondentís attorney notified the court that one of appellantís attorneys had indicated that he would be withdrawing from the case, and trial on the matter was set for four months later.† Appellantís attorneys notified the district court of their individual withdrawals on April 8 and 11, 2003.

The parties next appeared before the court on August 7, 2003, for a hearing on respondentís motion for summary judgment.† Appellant appeared without counsel and requested another continuance so that she could hire an attorney and conduct further discovery.† The district court denied her request, noting that the matter was nearly a year and a half old, that there had been several continuances, and that the court had given appellant four months since the April 2003 hearing to hire counsel and conduct further discovery.† The district court also denied respondentís summary judgment motion and instructed the parties that the trial would occur as scheduled four days later.

On the trial date, appellant appeared without counsel and requested more time from the court, stating that she had hired an attorney who agreed to represent her, but that the attorney was not familiar with the case and had a scheduling conflict with that dayís hearing.† The district court denied appellantís motion for a continuance and gave her an opportunity to testify and to enter into the record any other evidence she wished.† Appellant declined to testify and did not present any other evidence to support her objection.

Respondent renewed her motion for summary judgment and, in the alternative, moved for a directed verdict.† Because appellant had not provided the court with any additional evidence since filing her objection a year and a half earlier, the district court granted respondentís motion, noting that appellant had failed to meet her burden of proof.† In its order, the district court found that appellant had not been diligent in seeking discovery and noted that appellant ďhas retained two lawyers and assured the Court that a third firm was being retained.† No counsel has appeared or contacted the Court since the last withdrawal.Ē

Appellant argues that she was prejudiced because she should have been afforded a reasonable opportunity to prepare her case as a pro se litigant.† The pro se claim is not credible.† In the year and a half that passed from the filing of her objection, appellant had legal counsel for all but four months and there is no indication that she ever intended to proceed pro se.† Instead, the record shows that appellant was requesting a further continuance to accommodate her third counsel, who was never identified and was not retained until nearly four months after her original attorneys withdrew.

Appellant further argues that she was prejudiced because the district court failed to give her latitude and explain the law pertinent to her case.† But the record shows that at the August 7 hearing, the district court addressed appellantís reluctance to offer testimony.† When appellant stated that she did not know what to say to oppose the summary judgment motion because she did not know what the court would accept as legal argument, the court stated, ď[y]ou can say what you think, and then Iíll make a decision as to whether to grant the motion or not grant the motion . . . .† If you oppose [the motion for summary judgment], Iíll hear what you have to say.Ē† Further, after appellant expressed concern as to what evidence might be considered hearsay at trial, the district court instructed her that it would decide what was hearsay and afforded appellant the opportunity to testify or provide whatever evidence she had.† Appellant declined to offer any evidence.

Appellant had a year and a half since she filed her objection to make diligent efforts to prepare her case.†† But appellant failed to assemble evidence or conduct discovery, despite being represented by counsel for all but the last four months of that time period.† Appellant offers no reason as to why discovery was not conducted prior to the withdrawal of her attorneys in April or why she also failed to respond to respondentís interrogatories and discovery requests.† Although appellant was clearly prejudiced by the final denial of her request for a continuance, the record shows that she was given more than ample time to obtain counsel and prepare her case.† There exists a substantial basis for the district court to conclude that she failed to act in a diligent manner.† Based on the record before us, the district courtís refusal to grant an additional continuance was not an abuse of discretion.

Affirmed.