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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 111526
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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I have an issue with a motion in a civil small claims court

Customer Question

I have an issue with a motion in a civil small claims court in WV.
I am a defendant in a case that I filed a motion the first time explaining that my father is having a life threatening surgery for Pancreatic caner in another state. which I filed a motion for continuance with Magistrate till after I return. Along with the motions I sent the emails from my father explaining when and where the surgery will take place. The Magistrate granted the continence however the date was moved to a date while the surgery is taken place....
thinking this was an error, I filed a second motion explaining the situation and enclosed airline tickets explaining that I will not be in town and asked that it be moved to a date when I return,,,, The Magistrate denied the second motion for continuance.
Isn't that prejudice? What are my options an appeal? If I don't show up at on that date the judge will more than likely grant a default judgement in the Plaintiff's favor. What can I do?
Submitted: 2 months ago.
Category: Legal
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Unfortunately, a judge controls their own calendar and motions for continuance are at the sole discretion of the judge and cannot be appealed. It is not discrimination, legally discrimination is defined as any action taken against you only because of your own age/race/sex/disability/national origin. Legally it is not discrimination for a judge to deny a continuance because a party cannot make it to court because a family member has a medical condition, that is solely up to the judge to decide whether or not they want to continue the matter I am sorry to say.
Customer: replied 2 months ago.
I belive it is within my right that if I go ahead and be with my dad and a default judgment is rendered. I have 20 days to appeal the default judgement to be heard in circuit court. Or would it be best to file a motion now before the date set by the Magistrate on 9/22/16 to have it moved from Magistrate to Circuit Court
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your reply.
While you believe it is within your rights, it may be your moral obligation but your belief is not supported by the law. So you cannot appeal his denial of your request for continuance I am afraid. I understand you have a problem and a conflict and it is up to you to impress that upon the judge. If the judge still refuses, then you cannot appeal his denial of continuance under the law. So you need to file a motion to reconsider the continuance and submit your request again and explain that because you are going to be out of town you request the judge to reconsider your previous motion and grant the new continuance.
However, you would not succeed in getting it moved to the circuit court or even appealing if your only basis is not showing up because of your dad's surgery after the judge has already denied the continuance based on those same reasons as that is a decision of a judge that is non-appealable under law.
Customer: replied 2 months ago.
How much would it cost me to write a last min pleading mition for continuence
Customer: replied 2 months ago.
Should i say assist me
Customer: replied 2 months ago.
In reference to your second reply. I undeesatnd I cant appeal the denial however I can appeal the judgement. I belive in WV If I appeal the judgement within 20 days then it would be sent to Circuit Court for review and set to be heard if he so decides to do so
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your reply.
We are forbidden by state law from assisting customers in writing any pleadings, I am sorry about that.
As far as an appeal, if you get a default judgment against you for not appearing, you still have to have an issue on appeal in order to appeal to the circuit court. You not appearing because the court denied your motion for continuance is not going to be a sufficient issue and that would be the problem with you appealing an adverse judgment against you. In order to succeed on an appeal for only that issue, you would have to prove "abuse of discretion" on the magistrate, meaning you have to prove that no other reasonable magistrate given the same information would have denied continuance and that is an incredibly difficult burden to meet.
Customer: replied 2 months ago.
Could I file to have the Magistrate disqualified?
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your reply.
The only way to have him disqualified is presenting evidence of bias against you. Ruling against you on a continuance is not evidence of bias, since that is within his discretion and is a legal determination, you would need some other evidence of bias to have him removed.
Customer: replied 2 months ago.
With reference to this rely: "In order to succeed on an appeal for only that issue, you would have to prove "abuse of discretion" on the magistrate, meaning you have to prove that no other reasonable magistrate given the same information would have denied continuance and that is an incredibly difficult burden to meet" Wonder if she is the only Magistrate in the county... Which she is. There are 3 circuit Judges, 1 Magistrate. So would it not have to be heard by a Circuit Judge? At least that is what the appeal process is telling me... Maybe I am wrong here. Also does it not say that I can appeal 20 days after the denial of a motion A) 2.Appeal to circuit court.(a)Any party to a final judgment may as a matter of right appeal to circuit court. Notice of appeal shall be filed in magistrate court: (1)Within 20 days after judgment is entered; or
(2)Within 20 days after the magistrate has denied a motion for a new trial.(b)The magistrate shall require the appellant to post a bond with good security in a reasonable amount not less than the sum of the judgment and the reasonable court costs of the appeal, upon the condition that such person will satisfy the judgment and any court costs which may be rendered against the appellant on the appeal. The magistrate court clerk or deputy clerk shall collect the bond and the circuit court filing fee at the time the appeal is filed unless the person or entity filing the appeal is permitted to proceed without prepayment. The magistrate court clerk or deputy clerk shall forward any collected bond and fee along with the appropriate documents to the circuit court clerk.
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your reply.
Any party can appeal, IF THEY HAVE LEGAL GROUNDS TO APPEAL. If you have no legal grounds to appeal other than claiming the continuance was denied, then you can be made to pay the plaintiff's attorney's fees and costs for having to respond to your appeal.
People cannot just appeal everything without legal cause or grounds to do so. You have to appeal within 20 days of the denial of your judgment being entered against you.
Customer: replied 2 months ago.
One last thing the Plantiff contacted me through a lengthy detailed text stating that he would settle about 5 days ago. I drew up the settlement and sent it which he received by mail. He even contacted the court. Then when he found out the next day after the settlement that the continuence was denied because he thought the judge would grant the continuence which he text me that as well. Well he told me that now the continuence was denied and that I will be out of town, he changed his mind knowing he woukd get a default judgement. Isnt that something? I just wrote the new motion pleading her to reconcider based on me being out if town AND the settlement retraction based on the deniel of contiuence, and I sent cooies of the texts and settlement letter and postal recipt.
Customer: replied 2 months ago.
Would that change the scooe of the appeal?
Customer: replied 2 months ago.
Scope
Expert:  Law Educator, Esq. replied 2 months ago.
Thank you for your reply.
Under the Rules of Evidence, settlement cannot be introduced in trial. So the fact he offered a settlement and then changed his mind would really not have any bearing on your appeal grounds. The bot***** *****ne here is your whole complaint in this matter is the judge will not continue your case, there are no other legal issues at this point and that is one of the few things that just cannot be appealed as it is solely discretionary to the judge. I would really suggest perhaps showing up for trial and then leaving town immediately thereafter.

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