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Cullen v. Carolina Healthcare Systems2/1/2000
trial preparation, and wanted to try the matter. Although plaintiffs' counsel had released two witnesses who were police officers, and released the plaintiffs themselves, both the parties and witnesses resided in the Charlotte area and the trial court promised necessary assistance to have the witnesses appear for trial as needed. Further, there were pretrial matters to be heard and a jury to be selected before trial of the case could begin, thereby allowing additional time to secure all necessary witnesses. Finally, the trial court asked plaintiffs' counsel to contact his clients and witnesses to determine their availability, but never stated that the case was going to be tried in the absence of a necessary party or witness. Plaintiffs never reported to the trial court either an inability to return to court or an inability to have their witnesses present. Plaintiffs' motion for continuance was never renewed prior to filing their voluntary dismissal.
Plaintiffs also argue that the action by Judge Lamm reversed the order of continuance entered by Judge Caviness. However, "a judge has the power to modify an interlocutory order made by another whenever there is a showing of changed conditions which warrant such action." Id. at 502, 189 S.E.2d at 488. Here, there were obvious changed circumstances after the parties' appearance before Judge Caviness, in that the court file in this case was located and a special superior court judge became available to try this protracted matter. Under these circumstances, Judge Caviness' order of continuance could be modified.
We find no abuse of discretion by the trial court in failing to continue the matter, hold that the voluntary dismissal entered by the plaintiffs was sufficient to dismiss the case without prejudice pursuant to Rule 41(a), and hold that the trial court did not err in taxing costs to the plaintiffs as the provisions of Rule 41(d) required the court to do so.
Affirmed.
Judges MARTIN and TIMMONS-GOODSON concur.
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