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Civil Practice – Motion to Continue – Scheduling Conflict – Judges’ Resolution – Unread Email

Even though defense counsel had appearances scheduled at the same time in Vance County Superior Court and Wake County District Court, and even though superior court trials normally take precedence over district court trials, the judges communicated and resolved the scheduling conflict. At that point, the reason behind defendant’s motion to continue the district court trial no longer existed, and the district court did not abuse its discretion when it denied the motion.

We affirm the denial of defendant’s motion to dismiss.

Facts

Defense counsel was scheduled to be in both Vance County Superior Court and Wake County District Court on May 8, 2017. On May 5, 2017, counsel moved to continue the Wake County trial, citing his commitment in Vance County.

At 5:04 pm on May 5, the Wake County trial court coordinator sent an email to plaintiff’s and defendant’s counsel notifying them that the judges had resolved the scheduling conflict. Defense counsel was to appear in Wake County District Court first and then be released to appear in Vance County Superior Court. Defense counsel claimed he did not see the email until 1:00 pm on Monday, May 8, because he did not check his email after 5:00 pm on Friday May 5.

At 8:39 am on May 8, the trial court coordinator again informed defense counsel by email that he was expected to appear “this morning at calendar call.” Defense counsel replied at 9:00 am, stating that he would not be in Wake County. Neither defendant nor defense counsel was present in Wake County District Court when the case was called.

Following calendar call and pursuant to the trial court’s instructions, plaintiff’s counsel contacted defense counsel to determine if he was coming to court. Defense counsel informed him that he was in Warren County and would be going from there to Vance County Superior Court. Defense counsel also informed plaintiff’s counsel that defendant would not appear because he was with his son at a doctor’s appointment.

After hearing counsel’s report, the trial court called the case for trial. Defense counsel then sent plaintiff’s counsel a text message indicating defendant would be in Wake County District Court around noon that day.

The trial began at 9:29 a.m. The trial court heard plaintiff’s evidence, dismissed defendant’s counterclaims, and subsequently entered judgment in plaintiff’s favor.

Analysis

Under Tenth Judicial District Civil Rules, if a motion to continue is filed less than three business days before the court date, the motion will not be considered until calendar call, except where the motion reflects extreme hardship or extraordinary circumstances.

Where defense counsel included his email address below the signature line on his motion to continue, his failure to check the email account does not amount to “extreme hardship or extraordinary circumstances.”

Although superior court appearances normally take precedence over district court appearances, judges may communicate with each other to resolve scheduling conflicts.

In this case, because of the judges’ communication with one another, defense counsel no longer had a scheduling conflict. He simply needed to appear in Wake County District Court as directed. Defense counsel’s assertion in the motion to continue that he had a conflicting case in Vance County Superior Court was no longer a legitimate point to argue, and thus, good cause did not exist to grant counsel’s motion to continue.

The district court did not abuse its discretion in denying the motion to continue.

Affirmed.

Tractor Place, Inc. v. Bolton (Lawyers Weekly No. 012-128-18, 8 pp.) (Philip Berger, J.) Appealed from Wake County District Court (Michael Denning, J.) Philip Kirk for plaintiff; E.N. Bagshawe for defendant. N.C. App. Unpub.

 


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