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Lawyer burned by not checking email after 5 on Friday

For many, lawyering is not a 9-to-5 job.

So, where an attorney requested a continuance on a Friday but failed to check his email after the 5 o’clock whistle blew, the trial court did not err when it held court and dismissed his client’s counterclaims the following Monday.

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

An attorney checking out for the weekend is neither, the state Court of Appeals found in its Aug. 7 decision in Tractor Place, Inc. v. Bolton

“Defense counsel included his email address below the signature line on his … motions to continue,” Judge Philip Berger wrote for the appeals court. “Counsel’s failure or refusal to check an email account he published to the court as an acceptable means of communication does not amount to ‘extreme hardship or extraordinary circumstances.’”

According to court records, Jerry Bolton Jr. was due in Wake County District Court on Monday, May 8, 2017, to defend allegations that he owed The Tractor Place for unpaid tractor repairs. The case had already been continued once, and on May 5, a Friday, Bolton’s attorney, Nick Bagshawe of Williams & Bagshawe in Warrenton, filed another motion to continue, citing a conflict he had in Vance County Superior Court.

That same day, at 5:04 p.m., a trial court coordinator emailed attorneys for both parties notifying them that the case was still on for the morning of May 8.

According to court records, the email also informed them that Wake County District Judge Michael Denning had contacted the presiding judge in Vance County to resolve the scheduling conflict. Bagshawe, the email instructed, was to appear in Wake County District Court first thing Monday morning and would then be released to appear in nearby Vance County.

It’s 5 o’clock somewhere

Bagshawe, however, claimed that he didn’t see the email until 1 p.m. Monday because he hadn’t checked his email Friday evening. He responded at 9 a.m., however, to an 8:39 a.m. email from the trial court coordinator informing him that the motions were still pending and that all parties were expected to appear at calendar call.

In his reply, Bagshawe said that he was not in Wake County and that the defendant was probably working and would not likely be in court, either.

In their absence, the trial court heard the plaintiff’s evidence, found in the plaintiff’s favor, and dismissed Bolton’s counterclaims.

Bolton argued on appeal that the district court erred because his attorney was required to be in Vance County Superior Court while the Wake County trial was going on.

The appeals court disagreed, citing Croom v. Hendrick, writing that parties to a lawsuit must pay “that attention which a man of ordinary prudence usually gives his important business, and failure to do so is not excusable.”

District court falls directly behind superior court on the priority list, and judges are urged to communicate with each other to “lessen the impact of conflicts and continuances on all courts,” according to the state’s Superior and District Courts Rules. Because the judges in this case communicated with each other, there was no scheduling conflict, Berger wrote.

“He simply needed to appear in Wake County District Court as directed,” Berger wrote. “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.”

What a way to make a livin’

Philip Kirk of Kirk, Kirk, Howell, Cutler & Thomas in Raleigh represented the plaintiff. He said that even if one believes that one court trumps another, it might be beneficial for out-of-town attorneys to be aware of local rules.

“The judges have rules to go by and here, you have a three-day motion time frame and it was not followed,” Kirk said. “Furthermore, when there’s an outstanding motion, whether it’s timely filed or not, and you have court on Monday, you need to check your email. I actually called him on Monday, on the calendar call, and got him on his telephone—he said he wasn’t coming.”

Lawyers Weekly reached out to Bagshawe for comment via email, sent at 5:06 p.m. on a weekday. The automatic reply read:

“Please be advised that your email was delivered. However, if it is after 5:00 pm or before 9:00 am, your email will not be read or responded to for at least 1 business day.”

Fortunately, the mail was from only a reporter seeking comment and not a trial court relaying vital information.

Bagshawe followed up the next morning, however, disagreeing with Berger’s assertion that Bagshawe “impliedly invited service of legal notice” by providing his email. He said that his new disclaimer informs recipients that the provision of an email address is for convenience only and does not constitute a waiver of state law or civil procedure regarding service of notice.

He also disputes the district court’s claim that the superior court judge, Michael O’Foghludha, told the district court that Bagshawe could appear in the Wake County court on Monday morning.

“September 2 is my 24th anniversary of practice and I have decided that there will not be a 26th,” Bagshawe wrote in an email. “It is ludicrous to think that a trial lawyer, preparing for a “D”: class felony trial, should have to be looking over his shoulder, worrying about what a District Court judge is doing. Yes, you can quote me on that.”

The eight-page decision is Tractor Place, Inc. v. Bolton (Lawyers Weekly No. 012-128-18). An opinion digest is available online at sclawyersweekly.com.

Follow Heath Hamacher on Twitter @NCLWHamacher

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