This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).




Jerry Sloneker,


Pat Sloneker,



David Enck, et al.,


Filed May 25, 1999

Affirmed in part, reversed in part, and remanded

Shumaker, Judge

Hennepin County District Court

File No. PI9616730

Steven L. Theesfeld, Yost & Baill, LLP, 2350 One Financial Plaza, 120 South Sixth Street, Minneapolis, MN 55402 (for appellant)

Steven E. Tomsche, Tomsche, Sonnesyn & Tomsche, P.A., 888 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for respondents)

Considered and decided by Harten, Presiding Judge, Randall, Judge, and Shumaker, Judge.



Appellant Jerry Sloneker contends that the trial court abused its discretion by not granting his motion for a continuance so that he could hire a new lawyer for trial. He also contends that the trial court erred by denying his motion to tax costs and disbursements. We affirm in part, reverse in part, and remand.


Appellant Jerry Sloneker was driving a milk delivery truck on December 8, 1994, when it collided with a tow truck that respondent David Enck was driving.

At some point in 1995, appellant retained the law firm of Schwebel, Goetz, Sieben & Moskal to represent him in a personal injury action as a result of the collision. Daniel Bresnahan of the firm became the attorney of record.

After Bresnahan commenced suit, the court issued a scheduling order dated January 28, 1997, setting trial for the period of June 23 through July 11, 1997. The court amended the scheduling order three times. In the final amended order, filed November 10, 1997, the court set the trial for the period of February 23 through March 13, 1998. One amendment resulted from appellant's motion dated October 29, 1997, for a continuance to allow his physicians to provide definitive medical opinions.

Each of the four scheduling orders contained language regarding continuances:

A continuance will not be granted except for the most extraordinary and unforeseeable events. Requests for a continuance and reasons therefor must be submitted in writing to the undersigned within ten days of receipt of this notice and a copy of the request furnished to other parties.

In August, 1997, Bresnahan represented appellant at a nonbinding arbitration. Respondent "appealed" the arbitration award and requested a trial de novo. Bresnahan also represented appellant at a pretrial conference.

On February 25, 1998, the parties and their respective attorneys appeared for trial. The judge noted that the trial was set to begin and then stated:

I've been advised that Mr. Sloneker wants to discharge his attorney this morning and so I thought we should at least hear the preliminary parts of this on the record.

The judge then invited appellant to "tell me why you want to discharge your attorney this morning." Before appellant began, the opposing attorney indicated that respondent had flown in from out of state for the trial and the judge responded, "So that doesn't bode well for a continuance here without paying some costs at a minimum."

Appellant related the history of his representation by Bresnahan, noting that he and Bresnahan had attended "a number of depositions together and have had numerous phone calls" but that "about two weeks ago I felt that there was not a real lot of work being done on my side." He complained that Bresnahan was a personal friend of an adjuster for one of the insurers in the case; that Bresnahan had sent a substitute from his office to attend a medical deposition; and that Bresnahan had not told him the precise date and place of the trial. At the judge's invitation, Bresnahan responded to appellant's concerns. The judge followed with his observation that Bresnahan's conduct was neither improper nor unusual and stated that he wanted to review a medical deposition before going further:

I want to look through this before I rule on Mr. Sloneker's request to discharge, which if he insists, I would probably permit him to do that. But I may then require you to try the case on your own, Mr. Sloneker. That's the critical issue. I don't think I would force you to go to trial with an attorney that you don't want to try the case for you. I may, however, require you to still try the case.

When appellant asked if he would have to try the case himself, the judge replied, "Yeah, unless you can get an attorney by tomorrow, which seems unlikely to me."

The judge orally reviewed a portion of the medical deposition and stated that it appeared to have been competently conducted by Bresnahan's substitute. The judge commented that the case was ready to proceed and "so if you want to discharge Mr. Bresnahan, that's okay. I will grant that but we're going to go ahead and try the case anyway."

The judge offered appellant some time to think about the decision. Appellant stated that there was no way he could handle the case himself. The judge inquired: "So are you still requesting that Mr. Bresnahan be discharged, Mr. Sloneker?" Appellant asked for five minutes to speak privately with Bresnahan. After allowing the private conversation, the judge asked, "Mr. Sloneker, what are your wishes?" Appellant replied, "Well, apparently we're not going to be able to work together."

The judge continued to explore appellant's reasons for wanting to discharge Bresnahan and gave Bresnahan a chance to comment on appellant's complaints. The judge informed appellant that even though the "level of disagreement may be greater at this time than it was earlier," Bresnahan was competent to try the case. The judge offered his opinion that appellant's damages expectations were not realistic and that appellant should consider a settlement offer made earlier that day.

Reiterating that Bresnahan was prepared to try the case competently, the judge said to him:

I'm reluctant to let you out of the case * * *. Merely the fact that Mr. Sloneker doesn't think you can work together, I don't think that * * * necessarily indicates that you shouldn't try the case. I think your presence here to try the case would be much more beneficial than leaving Mr. Sloneker here unrepresented. I think you should try the case.

Bresnahan replied that no matter what he did appellant would not be satisfied and that he did not know how he could continue with the case.

The judge next raised the issue of whether Bresnahan's firm would seek compensation for its services if Bresnahan were discharged. When Bresnahan stated that the firm would expect such compensation, the judge observed that that fact would impair another lawyer's willingness to take over the case. Appellant stated, "I think whether him or I get along, I believe he probably didn't do a very good job" and acknowledged that he would have to accept whatever the jury and the court decide. The judge then said, "I think you have to try the case, Mr. Bresnahan."

Bresnahan and appellant next discussed the withdrawal of appellant's wife's loss-of-consortium claim. That was followed by settlement negotiations and a discussion with the judge of no-fault setoffs.

After jury selection, appellant again raised the issue of his relationship with Bresnahan. He reported that he telephoned James Schwebel, the senior partner in Bresnahan's firm, and that Schwebel advised him to get along. Appellant complained that Bresnahan had not prepared him for trial and then he said:

I just wanted to kind of get this on the record. And by dismissing my attorney this morning, which was discussed, I would not be capable of being my own attorney. It would be foolish for me to do that.

Bresnahan stated that his relationship with his client was irretrievably broken, and said:

I am in serious trouble here. I have a client that has put me in a terrible situation * * *. I just cannot see how I can continue.

He asked the judge if he could move for a continuance so that he could withdraw from the case. The judge replied, "You can make the motion but I'll probably deny it." Bresnahan made the motion, saying, "I don't know how I can proceed. * * * I do believe that it will severely impair my ability but I can do what I have to do." Bresnahan then asked appellant if he wanted another lawyer and appellant replied:

All I wanted is to get this on the record. I asked Jim Schwebel, who is apparently your boss, and he said that we would have to go forward. I thought possibly there would be a switching of attorneys or something like that, but apparently not.

The judge discussed the consequences of a continuance. The case would not be tried until June or July; appellant would have to pay costs occasioned by the continuance; and no new testimony could be developed without a showing of good cause. Respondent's attorney objected to a continuance, and the judge denied Bresnahan's motion.

The jury returned a verdict that ultimately produced an award of $29,920.14 for appellant. In his motion for a new trial, appellant contended, among other things, that the judge abused his discretion by not granting a continuance so that appellant could hire a new attorney. The judge denied the motion. Appellant also moved to tax his costs and disbursements. The trial judge denied that motion as well.


Appellant contends that he discharged his lawyer and then involuntarily rehired him because the trial judge denied a continuance that would have allowed appellant to seek new counsel. It was this denial, appellant argues, that constituted an abuse of discretion. The decision to grant or to deny a trial continuance is discretionary, and the trial judge's ruling will not be reversed absent a clear abuse of discretion. Chahla v. City of St. Paul, 507 N.W.2d 29, 31 (Minn. App. 1993), review denied (Minn. Jan. 20, 1994). "The test is whether a denial prejudices the outcome of the trial." Id. at 32 (quoting Beyer v. Commissioner of Pub. Safety, 358 N.W.2d 713, 715 (Minn. App. 1984)).

Bresnahan represented appellant for more than two years in various proceedings related to the case. It was not until the day of trial that appellant chose to reveal his dissatisfaction with Bresnahan, even though appellant had misgivings about him at least two weeks before the trial. By the time of the discharge, the case was four years old and had been reset for trial three times. In addition, respondent had traveled from his home in North Carolina for the trial.

The trial judge spent considerable time reviewing the case in an effort to ascertain the sense of appellant's desire to terminate Bresnahan's services. The judge found no rational basis for that desire and told appellant that Bresnahan's representation was adequate.

A trial court has discretion in ruling on a request for a continuance and should base its decision on the facts and circumstances surrounding the request.

Hamilton v. Hamilton, 396 N.W.2d 91, 94 (Minn. App. 1986). The trial judge here was faced with a relatively old case, multiple trial settings, a lengthy period before resetting the trial, a lawyer who had adequately represented his client throughout the case, a defendant from another state who came to Minnesota solely for the trial, and a plaintiff who discharged his lawyer on the day of trial. We find no clear abuse of discretion in the trial court's denial of appellant's continuance request. Faced with the prospect of proceeding pro se or allowing Bresnahan to represent him, appellant chose the latter.

Appellant argues that Bresnahan's trial conduct produced an inadequate damages award and an erroneous liability determination. Those conclusions are purely speculative.

Finally, the trial judge disallowed appellant's motion for costs and disbursements on the ground that the verdict was less than respondent's offer of judgment. After that ruling, the supreme court decided Borchert v. Maloney, 581 N.W.2d 838 (Minn. 1998). That decision allows a litigant in appellant's position to tax costs and disbursements. Respondent agrees.

The denial of appellant's motion for a new trial is affirmed, and the denial of appellant's motion to tax costs and disbursements is reversed. The matter is remanded for the determination of taxable costs and disbursements.

Affirmed in part, reversed in part, and remanded.