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Cullen v. Carolina Healthcare Systems2/1/2000
Appeal by plaintiffs from order taxing costs entered 8 March 1999 by Judge L. Oliver Noble, Jr., in Mecklenburg County Superior Court. Heard in the Court of Appeals 5 January 2000.
On 3 June 1997, plaintiffs filed this medical malpractice action to recover money damages from defendants arising out of the death of their son while in the care of the defendants. The matter came on for trial on 11 January 1999 in Mecklenburg County Superior Court before Judge Loto Caviness. Judge Caviness informed the parties that the file could not be located, and also announced that "in view of the estimated trial time on this [case] which is ten to twelve days and no file to start with, with a file to locate, it would seem that this one perhaps should be recommended to a special setting." Counsel advised the trial court that the estimated trial time was probably a month or more, and Judge Caviness stated that it appeared "this one will need to go over." Counsel for plaintiffs objected that counsel was from Fayetteville, had been in Mecklenburg County since the previous Friday, and was prepared for trial. The trial court expressed regret over the situation, again commented to the clerk that a special session would need to be scheduled, and again noted that the estimated time of trial was about one month.
Later that same day, counsel for all parties appeared before Judge Beverly Beal, and Judge Beal advised counsel that although " s a result of a decision made earlier today you all thought you were going to be down this week for this case[,] s a result of administrative decision-making the opportunity is present for the trial of the case and the resources of the Court are at your disposal to get the case tried." Judge Beal then advised the parties that Special Superior Court Judge Charles Lamm was available to try the case. Counsel for plaintiffs informed Judge Beal that he had released his clients and witnesses and was not prepared to go forward. Judge Beal advised counsel for plaintiffs that he should take the matter up with Judge Lamm. When Judge Lamm arrived in the courtroom, counsel for plaintiffs had the following colloquy with the judge:
THE COURT: In talking with Judge Beal I understand that you may have had some problem, Mr. Byrd, about releasing your clients?
MR. BYRD: Yes, sir.
When the Court this morning ordered that the case go over I took my clients back and explained that to them and let them go; started to release witnesses.
Released my rooms at the hotel, and I'm not in a position to go forward.
[THE COURT:] Well, are your clients local?
MR. BYRD: They are.
THE COURT: What witnesses did you release?
MR. BYRD: I released two police officers who were standing here at the time.
THE COURT: Local police officer?
MR. BYRD: Yes, sir. Yes, sir.
THE COURT: Well, I think you -- have you made any attempt to see whether or not you can get your room back for tonight?
MR. BYRD: I have not.
THE COURT: Why don't you do that and also notify your clients to see if you can be back in the morning, assuming this is agreeable with defense counsel, and I'll hear you all if you want to hear anything.
I understand that things may have been a little bit disjointed over here in the Civil Courts Building this morning.
And I'm sure we can make whatever arrangements are necessary to have the police officers back.
So if you want to take a few minutes now and see if you can reinstate your room and contact your clients and then we can do what we need to do in the way of pretrial motions, any pret
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