Levine

This appeal is from a final order of dismissal after appellants Claire Levine and Passport Auto Shippers, Inc. (collectively appellants) failed to bring their action to trial within five years from the date it was initially filed. Appellants challenge an order made by the trial court relating to an award of attorney fees in favor of respondents and against appellant Levine. The trial court ordered as a condition to grant of a trial continuance, that Levine pay attorney fees of $28,000 to respondents, representing fees which would be incurred in the future to prepare for trial on the continued date. Levine never made the payment and ultimately the action was dismissed after the five-year anniversary had passed.

Appellants contend that the court was without authority to condition the continuance of trial on the payment of attorney fees. In the alternative, they contend it was error for the court to award fees which may be incurred in the future, as compared to actual fees incurred for the initial trial preparation. We conclude the trial court lacked authority to condition grant of the continuance on payment of attorney fees and that the resulting order of dismissal must be…