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01/13/95 ERIC PEAGLER v. SKYLINE SHOPPING CENTER

January 13, 1995

ERIC PEAGLER, D/B/A E & E TRAINING & FITNESS CENTER
v.
SKYLINE SHOPPING CENTER, A PARTNERSHIP



Appeal from Autauga Circuit Court. (CV-94-68). John Bush, TRIAL JUDGE.

Rehearing Overruled February 17, 1995, . Certiorari Denied May 19, 1995.

Holmes, Retired Appellate Judge. All the Judges concur.

The opinion of the court was delivered by: Holmes

HOLMES, Retired Appellate Judge

This is an appeal from the circuit court's judgment in favor of the landlord in an eviction action.

Skyline Shopping Center, a partnership (landlord), filed a notice of eviction action in the District Court of Autauga County against Eric Peagler d/b/a E & E Training & Fitness Center (tenant). The tenant filed a counter-affidavit. The district court held a hearing and issued an order, wherein it found in favor of the landlord.

The tenant appealed the judgment to the Circuit Court of Autauga County and requested a jury trial on all issues. The circuit court set the trial for May 25, 1994, at 9:00 a.m. The tenant filed a notice of conflict because his attorney was involved in a trial in federal district court, and he requested that the trial date be reset.

The circuit court granted the request and reset the trial for June 3, 1994, at 8:00 a.m. The tenant, once again, filed a notice of conflict because his attorney was still involved in a trial in federal district court, and he requested that the trial date be reset.

Neither the tenant nor his attorney was present before the circuit court at 8:00 a.m. on June 3, 1994. The circuit court denied the tenant's request for a continuance. The landlord and his attorney were present and the case proceeded to trial. The circuit court issued an order, wherein it found that the tenant was guilty of unlawful detainer, and judgment was entered in favor of the landlord.

The tenant filed a motion to vacate the judgment, pursuant to Rule 59, Ala. R. Civ. P. The motion was denied.

The tenant appeals.

The dispositive issue is whether the trial court committed reversible error when it declined to grant the tenant's motion for continuance.

In Vold v. Hand, 366 So. 2d 279 (Ala. 1979), our supreme court discussed the issue of whether it is an abuse of discretion for the trial court to decline to grant a continuance under circumstances where the attorney is involved in the trial of another case elsewhere.

Our supreme court stated that the mere fact that an attorney is involved in the trial of another case elsewhere does not confer an absolute right to a continuance. A trial court's denial of a motion for a continuance under such circumstances will generally be ...


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