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March 12, 1993


Appeals from the Superior Court of the District of Columbia; (Hon. Sylvia Bacon, Motions Judge); (Hon. Herbert B. Dixon, Jr., Trial Judge)

Before Ferren and Steadman, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Ferren

FERREN, Associate Judge : The trial court dismissed appellant's tort action for lack of prosecution. Appellant -- who was incarcerated in Tennessee for a criminal offense at the time the court dismissed this case -- contends the trial court erred (1) in denying his motion for waiver of costs, (2) in refusing to grant his petition for a writ of habeas corpus ad testificandum, and (3) in denying his motion for continuance. *fn1 We dismiss the appeal in No. 91-CV-1092 for lack of jurisdiction and affirm the judgment appealed from in No. 91-CV-1128.


On June 17, 1986, appellant, Arthur Hammond, who was riding a motorcycle, collided with an automobile driven by appellee, Joan Elizabeth Weekes. On June 14, 1989, Hammond filed a complaint against Weekes alleging negligence and seeking damages for the injuries he sustained in the collision. On February 1, 1990, the motions Judge denied Hammond's request for partial summary judgment on the issue of Weekes's negligence.

On July 3, 1990, Hammond was incarcerated because of a criminal conviction for robbery. Although the trial in the present case was originally set for October 9, 1990, and Hammond was brought up from Lorton Reformatory for that purpose, the case was not reached that day and was eventually rescheduled for September 23, 1991. In the interim, Hammond was transferred to the West Tennessee Detention Facility in Mason, Tennessee. On September 9, Hammond applied for a writ of habeas corpus ad testificandum to assure his presence at trial, but the trial Judge's law clerk called Hammond's counsel to advise "that unless [someone on behalf of Hammond] made financial arrangements with a marshal to transport Mr. Hammond, [the trial Judge] was not signing the writ." As a result, on September 16 Hammond filed a motion for waiver of costs asking the court, in particular, to waive any prepayment to the marshal service for transporting him from Tennessee. The trial court denied the motion for waiver of costs the next day. Hammond appealed that order (No. 91-CV-1092) on Friday, September 20 and also filed a motion for continuance of the trial, scheduled for Monday, September 23.

On the day of trial, the trial Judge considered the motion for continuance. When the trial Judge stated that the issue of waiver of costs for Hammond's transportation was "the only issue [that he was] aware that [he had] ruled on," Hammond's counsel asserted that the motion for waiver of costs included a request "for relief in terms of allowing . . . fees for attendance of witnesses." Weekes's counsel, arguing that the trial court's order denying Hammond's motion for waiver of costs was not appealable, opposed Hammond's motion for continuance and asked the court to dismiss the case if Hammond's counsel was not ready to proceed. Hammond's counsel responded that the denial of the motion for waiver of costs had prevented the subpoena of several local witnesses for financial reasons. The trial Judge replied, "I don't know how you're going to assure the availability of those local witnesses if no attempt is made to subpoena them other than the week before the trial." Hammond's counsel then added that he understood from his co-counsel that "there were subpoenas issued . . . to several witnesses." As a result of this exchange, the trial Judge partially rescinded his denial of Hammond's motion for waiver of costs:

I have enough information grant Mr. Hammond's waiver as far as those local witnesses and witness fees and mileage as required by court rule. And I'll give you a day to get those witnesses under subpoena[;] otherwise, if they're not under subpoena by tomorrow, then that will bring us to the point raised by counsel for [Weekes as] to whether or not this matter should be dismissed for of prosecution.

It seems to me the real issue is not witness fees for these local witnesses. It sounds to me as if you have not been able locate these witnesses or no effort was made to subpoena these witnesses before now.

Hammond's counsel declared that he was still troubled because he had "no authority from Mr. Hammond to proceed in this case without his presence," but if the case was continued to the next day he "would attempt to contact Mr. Hammond where he is incarcerated and ask that he place a call back to [his counsel indicating] whether or not he would wish to have this matter proceed in his absence." The trial court then continued the case until the next morning.

The next day Hammond's counsel , (D.C. App. 1993) (en banc) (following Richardson-Merrell in holding that an order disqualifying counsel in a civil case is not immediately appealable under the collateral order doctrine, overruling Urciolo v. Urciolo, 449 A.2d 287 (D.C. 1982), and American Archives' Counsel v. Bittenbender, 345 A.2d 487 (D.C. 1975)). But compare Van Cauwenberghe v. Biard, 486 U.S. 517, 108 S. Ct. 1945, 100 L. Ed. 2d 517 (1988) (no appeal under Cohen doctrine of order denying motion to dismiss on forum non conveniens grounds) with Dunkwu v. Neville, 575 A.2d 293, 294 n.1 (D.C. 1990) (denial of a motion to dismiss on grounds of forum non conveniens is an appealable order).


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