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All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Carolina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be considered authoritative.
THOMAS E. SCRUGGS, Plaintiff, v. EMMA SLADE CHAVIS and LOLETA
Filed: 2 September 2003
Trials_motion to dismiss_calendar_conflicting dates_reliance on calendar
Defendants' motion to dismiss an automobile accident case should not have been granted
in plaintiff's absence where defendants served a notice of hearing for one date, but the
subsequent final motion calendar distributed by the trial court administrator specified a different
date. A party may rely upon the final calendar issued by the court; if the court has authorized a
date other than that specified in the final calendar, it is the responsibility of the party who wishes
to have the motion heard to clarify the hearing date with opposing counsel.
Appeal by plaintiff from order entered 30 April 2002 by Judge
W. Douglas Albright in Guilford County Superior Court. Heard in
the Court of Appeals 21 May 2003.
Nancy P. Quinn, for plaintiff-appellant.
Burton & Sue, L.L.P., by William T. Corbett, Jr., for
The issue raised by this appeal is whether the trial court
erred in granting defendants' motion to dismiss in plaintiff's
absence when defendants served a notice of hearing for one date,
but the subsequent final motion calendar distributed by the Trial
Court Administrator specified a different date. Because we hold
that plaintiff's counsel reasonably relied upon the Trial Court
Administrator's final motion calendar, we reverse and remand.
Plaintiff, who was injured in a December 1997 automobile
accident, originally filed a complaint based on that accident in
Guilford County Superior Court in 1999. Defendants served
discovery requests on 10 June 1999 and subsequently filed a motionto compel on 14 September 1999. On 11 October 1999, the court
entered a consent order granting plaintiff until 3 November 1999 to
respond to the discovery requests "or otherwise be subject to
sanctions, pursuant to Rule 37 of the North Carolina Rules of Civil
Procedure." On 7 January 2000, defendants served additional
discovery requests. On 13 March 2000, defendants filed a second
motion to compel, which resulted in a second consent order, dated
3 April 2000, requiring plaintiff to provide discovery within 30
days of entry of the order. On 20 June 2000, defendants moved to
dismiss the action for failure to comply with the discovery order.
Defendants served a notice of hearing stating that the motion would
be heard on 10 July 2000, followed by a second notice of hearing
stating that the motion would be heard on 24 July 2000. On 20 July
2000, plaintiff voluntarily dismissed that initial lawsuit without
Plaintiff refiled his lawsuit on 19 July 2001. Defendants
answered, denying the allegations, and served plaintiff with
Defendants' First Set of Interrogatories and Request for Production
of Documents. On 24 January 2002, after plaintiff failed to
respond fully to defendants' discovery requests, defendants filed
a motion to compel. After a hearing on defendants' motion, during
the 4 March 2002 civil motion session, the superior court entered
a consent order granting plaintiff an additional thirty days to
provide defendants with specified documents and information.
On 12 April 2002, after 30 days had passed without compliance
with the consent order, defendants served and filed a motion to
dismiss pursuant to Rule 37 of the North Carolina Rules of CivilProcedure. On the same date, they also served and filed a
"Calendar Request Form" asking that the motion be heard on 29 April
2002 and a notice of hearing stating that defendants would appear
for the hearing of their motion on 29 April 2002.
Subsequent to receiving the notice of hearing, plaintiff
received the "Final Calendar" for the 6 May 2002 motion non-jury
civil session over which Judge Ronald E. Spivey would be presiding.
Included on that calendar was defendants' motion to dismiss.
Defendants appeared before Judge W. Douglas Albright on 29
April 2002. The court found that the matter was duly noticed for
hearing on 29 April 2002 and that counsel for plaintiff had failed
to appear. The court granted defendants' motion to dismiss. From
this order, plaintiff appeals.
Defendants filed their motion to dismiss pursuant to Rules 26,
33, 34, and 37 of the North Carolina Rules of Civil Procedure for
plaintiff's failure to comply with the court's order compelling
discovery. We do not express an opinion on the merits of that
motion, but rather address only whether the superior court erred in
finding that the motion was duly noticed for hearing on 29 April
2002 and in then granting the motion without giving counsel for
plaintiff an opportunity to be heard.
This appeal involves a fundamental principle: in civil cases
filed in North Carolina, the calendar is set by the court and not
by the lawyers. Here, the record includes two dates for the
hearing of defendants' motion: one in a notice of hearing prepared
by counsel for defendants and one in a later-received final motioncalendar prepared by the Trial Court Administrator. Under both the
General Rules of Practice and the local rules for the 18th Judicial
District, plaintiff's counsel was entitled to rely upon the Trial
Court Administrator's final calendar in the absence of any further
direction from the court.
Under Rule 6 of the General Rules of Practice, "[m]otions may
be heard and determined either at the pre-trial conference or on
as directed by the presiding judge." Gen. R.
Pract. Super. and Dist. Ct. 6, 2002 Ann. R. N.C. 5 (emphasis
added). Rule 2 of the General Rules of Practice provides that the
civil calendar shall be prepared under the supervision of the
presiding judge and shall be distributed to each attorney of
record. Gen. R. Pract. Super. and Dist. Ct. 2(b), 2002 Ann. R.
N.C. 2. In short, motions _ other than those heard at a pre-trial
conference _ are to be heard on a motion calendar prepared by the
The 18th Judicial District Superior and District Court local
rules in turn provide in Rule 1.2 that "[t]he calendars for the
disposition of civil cases in the Superior Courts of the 18th
Judicial District shall be set by the Trial Court Administrator in
accordance with these rules." See also
Rule 3.2 ("The tentative
and final civil calendars for all civil sessions in Greensboro and
High Point will be prepared by the Trial Court Administrator.").
To schedule a motion in a civil matter, counsel is required, under
Rule 3.5, to complete a "Calendar Request" form and submit it to
the Trial Court Administrator. Rule 7.2(b)(1), specifically
addressing motions, provides that non-jury civil sessions for thehearing of motions will be held at least monthly "and at such other
times deemed appropriate by the Trial Court Administrator."
Since the notice of hearing was served on the same day as the
calendar request form, plaintiff's counsel could reasonably assume
that defendants were simply requesting that their motion be heard
on 29 April 2002 and that the court had not yet calendared the
motion. Counsel for defendants' cover letter does not suggest
otherwise. In fact, the record contains no evidence to indicate
that the court ever granted defendants' request to be heard on 29
April 2002. The notice of hearing from counsel could not trump the
Trial Court Administrator's subsequent "Final Calendar" scheduling
the motion for hearing on 6 May 2002. Given the local rules for
the 18th Judicial District, plaintiff's counsel was entitled to
rely upon that "Final Calendar."
Defendants argue that the conflicting dates placed a duty on
counsel to clarify the date of the hearing. Had plaintiff's
counsel received the notice of hearing after the final calendar,
then such an argument might have merit. When, however, an attorney
has received a calendar request form/notice of hearing from counsel
followed by a final calendar issued by the court, the attorney may
rely upon the final calendar. If the court has in fact authorized
a date other than the one specified in the final calendar, it is
the responsibility of the party who wishes to have the motion heard
to clarify the hearing date with opposing counsel.
Under these circumstances _ and in the absence of any record
that the court actually directed that the motion be calendared for
29 April 2002 _ we find that plaintiff's counsel was not dulynotified of the 29 April 2002 hearing. We, therefore, reverse and
remand for the trial court to hear defendants' motion to dismiss
following proper notice to plaintiff.
Reversed and remanded.
Judges MARTIN and HUNTER concur.
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