Shackelford v. Lundquist

An unpublished opinion of the North Carolina Court of Appeals does not constitute
controlling legal authority. Citation is disfavored, but may be permitted in accordance
with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.

NO. COA13-960
NORTH CAROLINA COURT OF APPEALS

Filed: 6 May 2014

CYNTHIA S. SHACKELFORD,
Plaintiff-Appellant,

v. Guilford County
No. 07 CVD 12047
ANNE LUNDQUIST,
Defendant-Appellee.

Appeal by Defendant from amended order and amended judgment

entered 19 March 2010, and order entered 9 April 2013 by Judge

Betty J. Brown in District Court, Guilford County. Heard in the

Court of Appeals 18 February 2014.

Hill Evans Jordan & Beatty, PLLC, by William W. Jordan and
Ashley D. Bennington, for Plaintiff-Appellee.

Woodruff Law Firm, PA., by Carolyn J. Woodruff and Jessica
S. Bullock, for Defendant-Appellant.

McGEE, Judge.

A jury determined on 16 March 2010 that Anne Lundquist

(“Defendant”) had committed the torts of alienation of affection

and criminal conversation, and that Defendant intentionally or

recklessly inflicted emotional distress on Cynthia S.

Shackelford (“Plaintiff”). The jury awarded Plaintiff
 -2-
$5,000,000.00 in compensatory damages, and $4,000,000.00 in

punitive damages. Defendant was not at the trial, and was not

represented by counsel at that time.

Plaintiff and Allan L. Shackelford (“Mr. Shackelford”) were

married on 23 December 1972, and subsequently had two children.

In Plaintiff’s complaint, filed 9 November 2007, Plaintiff

alleged that, while she and Mr. Shackelford were still married,

Defendant and Mr. Shackelford began an affair, perhaps as early

as November 2004.

According to Plaintiff’s complaint, Defendant “began and

continued a course and pattern of conduct” that “interfered with

the loving marital relationship that existed between” Plaintiff

and Mr. Shackelford. Plaintiff alleged claims for alienation of

affection, criminal conversation, and intentional infliction of

emotional distress based upon the alleged actions of Defendant

and requested a trial by jury.

Defendant was served with Plaintiff’s complaint on 20

November 2007. At that time Plaintiff lived in Guilford County

and Defendant lived in Aurora, New York. Defendant did not

retain counsel, and did not file an answer to Plaintiff’s

complaint. Defendant did mail a pro se “Motion for Extension of

Time to Respond,” which was filed on 27 December 2007, and in

which Defendant requested additional time to file an answer.
 -3-
The Guilford County Clerk of Superior Court (“Clerk of Court”)

rejected Defendant’s 27 December 2007 motion on the basis that

it “was filed late.” Defendant sent a second letter to the

Clerk of Court, which was filed 14 January 2008, and in which

Defendant stated any delay in the filing of her 27 December 2007

motion “was unforeseen and excusable[,]” and she requested that

the clerk’s office inform her “of what steps I need to take to

comply with the court’s procedures to have my motion considered

to have been filed timely.” Defendant then mailed a “Motion to

Dismiss Complaint for Lack of Personal Jurisdiction and Failure

to State a Claim,” which was filed 22 January 2008. The Clerk

of Court responded to Defendant’s letter on 22 January 2008 by

stating: “You would need to consult an attorney regarding your

motion to extend time which was filed late – how to have it

heard.” Once again, Defendant responded with a letter to the

Clerk of Court, filed 11 February 2008, in which she stated that

“since I am not represented by counsel,” could the office of the

Clerk of Court “provide some simple direction as to how I can

correct this situation without my having to spend money that I

do not have to hire an attorney to do this for me?”

Defendant apparently made no more inquiries into the matter

until she sent another letter to the Clerk of Court filed 12

February 2010. This letter appears to have been sent mainly in
 -4-
response to “a notice [sent to Defendant] from the court that

this matter had been placed on the December [2009] Clean-Up

Calendar.” Defendant stated she had received this notice in

November 2009. Defendant’s 12 February 2010 letter, mailed

approximately two months after the matter was heard on 11

December 2009, requested an update on “the status of this

matter,” and further requested a response to Defendant’s 11

February 2008 letter. Following a hearing on 11 December 2009,

the trial court entered an order in which it noted that

Plaintiff’s attorney was present but that no one was present for

Defendant. In that order, the trial court also set the matter

for a jury trial at the March 2010 session of district court.

According to a letter Defendant wrote to Plaintiff’s

counsel, dated 26 February 2010, Defendant indicated she had

received actual notice by at least 19 February 2010 that the

matter had been scheduled for trial in March. Defendant mailed

an “Emergency Motion for Continuance[,]” which was filed 1 March

2010, requesting she be granted additional time to file an

answer, and be allowed “to complete [her] job responsibilities

for this academic year and then the opportunity to secure

relevant documentation and arrange for testimony by appropriate

witnesses to defend [her]self in this case.” Defendant also

requested that the trial court make a ruling on her 22 January
 -5-
2008 motion to dismiss, though Defendant still did not attempt

to calendar that motion for a hearing. Defendant did not retain

counsel to assist in any of these legal matters.

The trial court entered an amended order on 19 March 2010

in response to Defendant’s motion to continue, in which it

stated:

This cause . . . being heard and tried
. . . on March 15, 2010 . . . and
notwithstanding the fact that [Defendant]
has not filed a notice of hearing her said
motion and has made no appearance to argue
the same and did not appear at the call of
the calendar for the March 1, 2010, session
of District Court which took place on
February 22, 2010, the Court, having
nevertheless reviewed the file and the
specific terms of the order entered in this
cause at the clean-up calendar pretrial of
this action on December 11, 2009, at which
[Defendant] also failed to appear or have
counsel present representing her, finds and
concludes that the order entered on December
11, 2009 . . . takes priority over any local
rule pertaining to the setting of this
matter for trial, and therefore
[Defendant’s] motion to continue the trial
of this action set for March 15, 2010,
should be denied.

Plaintiff’s action was tried on 15-16 March 2010, without

any involvement by Defendant. The jury found for Plaintiff on

all three claims, and awarded $5,000,000.00 in compensatory

damages and $4,000,000.00 in punitive damages. An amended

judgment was entered 19 March 2010.

Defendant finally retained counsel and filed a “Motion
 -6-
Pursuant to Rule 52, Rule 59 and Rule 60” on 25 March 2010, in

which she requested that the trial court vacate the judgment and

amended judgment, vacate the 17 March 2010 order and the 19

March 2010 amended order, and grant Defendant a new trial. In

the alternative, Defendant requested that the trial court amend

its judgment to reduce the award to Plaintiff to $1.00. The

trial court, by order entered 9 April 2013, denied Defendant’s

25 March 2010 motion in its entirety. Defendant appeals.

Additional relevant facts will be included in the body of the

opinion.

I.

Defendant’s first, second, fourth, and fifth arguments

involve constitutional questions that were not raised at the

trial level. Because Defendant failed to raise these arguments

at trial and therefore obtained no ruling on these issues, they

have not been preserved for appellate review. N.C.R. App. P.

10(a)(1) (2014) (“In order to preserve an issue for appellate

review, a party must have presented to the trial court a timely

request, objection, or motion, stating the specific grounds for

the ruling the party desired the court to make if the specific

grounds were not apparent from the context. It is also

necessary for the complaining party to obtain a ruling upon the

party's request, objection, or motion.”); In re Bullock, __ N.C.
 -7-
App. __, __, 748 S.E.2d 27, 33, disc. review denied, __ N.C. __,

752 S.E.2d 149 (2013). Defendant’s first, second, fourth, and

fifth arguments are therefore dismissed.

II.

Defendant’s third argument also involves a constitutional

question not raised at trial, but because Defendant asserts the

trial court lacked subject matter jurisdiction, we address this

argument. Defendant argues that “the laws of alienation of

affection and criminal conversation are unconstitutional” and

thus claims pursuant to these laws could not vest subject matter

jurisdiction in the trial court. In light of North Carolina

Supreme Court precedent, we disagree.

Defendant argues that the trial court lacked “subject

matter jurisdiction to enter judgment against . . . Defendant

because the laws of alienation of affection and criminal

conversation are unconstitutional[.]” However, Defendant

provides no citation to authority for this proposition, and we

can find none. The Third Circuit has stated: “When disposing of

a claim brought under an unconstitutional statute, courts

ordinarily deny the claim on the merits, on the ground that the

statute under which relief is sought is unconstitutional, rather

than for lack of subject matter jurisdiction.” Nesbit v. Gears

Unlimited, Inc., 347 F.3d 72, 82 (3d Cir. 2003) (citations
 -8-
omitted). Our Supreme Court has acted in accordance with this

statement. See, e.g., Williams v. Blue Cross Blue Shield of

N.C., 357 N.C. 170, 192, 581 S.E.2d 415, 430-31 (2003). Even if

we were to hold that the laws of alienation of affection and

criminal conversation are unconstitutional, which we are clearly

without authority to do, Cannon, 313 N.C. at 324, 327 S.E.2d at

888, we would be exercising our jurisdiction to reach that

conclusion. Because Defendant’s argument does not touch on the

jurisdiction of this Court, and because Defendant did not raise

the underlying argument at the trial level, Defendant has

abandoned this argument. N.C.R. App. P. 10(a)(1); Bullock, __

N.C. App. at __, 748 S.E.2d at 33.

III.

In Defendant’s sixth argument, she contends the trial court

erred in denying her emergency motion for a continuance. We

disagree.

N.C. Gen. Stat. § 1A–1, Rule 40(b) (2009)
provides, in pertinent part, the following:
“No continuance shall be granted except upon
application to the court[;] [a] continuance
may be granted only for good cause shown and
upon such terms and conditions as justice
may require.” “Whether to grant a motion to
continue is within the sound discretion of
the trial court.”

Skelly v. Skelly, 215 N.C. App. 580, 583, 715 S.E.2d 618, 620

(2011) (citations omitted).
 -9-
This action was filed on 9 November 2007. Defendant was

served with summons and complaint on 20 November 2007.

Defendant mailed a “Motion for Extension of Time to Respond”

dated 18 December 2007, which was filed 27 December 2007. The

Clerk of Court returned the motion to Defendant because: “The

Motion for Extension of Time to Respond was filed late.” In

Defendant’s 14 January 2008 letter to the Clerk of Court she

stated: “I am not an attorney, and would appreciate your

informing me of what steps I need to take to comply with the

court’s procedures to have my motion considered to have been

filed timely.” The Clerk of Court responded, informing

Defendant that Defendant “would need to consult an attorney

regarding your motion to extend time which was filed late – how

to have it heard.” Defendant also filed a motion to dismiss the

complaint on 22 January 2008 “for lack of personal jurisdiction

and failure to state a claim.” Defendant again mailed

correspondence to the Clerk of Court, filed 11 February 2008, in

which Defendant again stated she was not an attorney and could

not afford one, and requested “some simple direction as to how I

can correct this situation without my having to spend money that

I do not have to hire an attorney to do this for me[.]” There

is no record evidence of a response to this letter, and

Defendant states that no response was made.
 -10-
Defendant did nothing more until after she received notice

in November 2009 “that this matter had been placed on the

December [2009] Clean-Up Calendar.” Apparently, Defendant did

nothing in response to this notice until after the December 2009

hearing had occurred. This hearing took place 11 December 2009

and the trial court noted that, though Plaintiff’s attorney was

there, “no one” was present for Defendant. Defendant claims she

“never received any notice of the December 11, 2009 court date”

and never received a copy of the continuance order that was

filed 11 December 2009 which set the matter for a jury trial at

the March 2010 session of district court. However, Defendant

again sent a letter to the Clerk of Court, reiterating that she

did not have counsel. In that letter, dated 8 February 2010 and

file-stamped 12 February 2010, Defendant acknowledged having

received “notice from the court that this matter had been placed

on the December Clean-Up Calendar” and stated she “would

appreciate” an update on the “status of this matter.” Defendant

made this inquiry nearly two months after the hearing had

occurred. Defendant also stated she had never received a

response to her last correspondence ‒ her letter filed 11

February 2008 ‒ and requested “follow-up regarding that letter

also.” Further, a copy of the continuance order filed 11

December 2009, which set a jury trial for the matter at the
 -11-
March 2010 session of district court, is contained in the

record, though we have no information regarding how Defendant

obtained it. Defendant does state in an affidavit that had she

“been aware of [the 11 December 2009] Order, [she] would have

started to prepare for the upcoming trial and would have most

likely been in contact with an attorney to represent [her] at

that point.” Again, according to Defendant’s affidavit:

To [her] complete surprise, on Friday
afternoon, February 19, 2010, [she] received
another . . . Calendar for the March 1, 2010
session of District Court . . . . This
Calendar was dated February 9, 2010. The
Calendar indicated that calendar call would
be held in Courtroom 2E on Monday, February
22, 2010 at 9:00 a.m.

Defendant states that she “immediately filed an Emergency

Motion for Continuance” on 26 February 2010. However, this was

four days after the date she claims was the “calendar call” for

the 1 March 2010 session, and a full week after the date

Defendant claims she received notice for the upcoming calendar.

Defendant apparently did not use that time to hire an attorney

who could advise her and act on her behalf to insure her

interests were properly represented.

Defendant then sent a letter, dated 26 February 2010, to

Plaintiff’s counsel. In this approximately five-page letter

(“the letter”), Defendant attempted to explain the difficulties

she had had in attempting to respond to Plaintiff’s complaint,
 -12-
and the difficulties she had had in attempting to elicit help

from the Clerk of Court. Defendant also explained:

I heard absolutely nothing further about
this case for almost two years until I
received a copy of the Court’s December
Clean-Up Calendar in November 2009. I
assumed, apparently incorrectly, that the
two-year delay, during which time you and
your client did nothing further in this
matter, and then the case being placed on
the Clean-Up Calendar meant that [Plaintiff]
had decided not to pursue this cause of
action any further.

Defendant does not include a copy of the “December Clean-Up

Calendar” in the record, so we do not know precisely what

information that calendar conveyed to Defendant, other than that

this matter had been scheduled for hearing in December 2009.

Defendant further argued her belief that she should be granted a

continuance, stating:

Because of the unanticipated and unknown
circumstances I have continued to face in
this matter, I never filed an answer to
[Plaintiff’s] complaint. This is because I
do not know, even at this point in time, if
the Court has ruled or whether it intends to
consider and rule on my Motion to Dismiss[.]
I have been left to presume that it is
possible that the Court has chosen to ignore
this motion in view of the Court’s
questionable decision that my Motion for
Extension of Time to Respond was somehow
filed late and its inexplicable response to
my efforts to correct this purely
administrative issue.
 -13-
In the letter, Defendant also argued the merits of the

action against her to Plaintiff’s attorney. Defendant’s

“Emergency Motion for Continuance” stated that her “reasons,

rationale and conditions” in support of her motion “are

contained in [her] letter to [P]laintiff’s attorney transmitted

to him this date and enclosed as Attachment A to this motion.”

“‘[A] party to a lawsuit must give [the suit] the attention

a prudent [person] gives to [that person’s] important

business.’” Carolina Forest Ass'n v. White, 198 N.C. App. 1,

15, 678 S.E.2d 725, 735 (2009) (citation omitted); see also

Pepper v. Clegg, 132 N.C. 312, 316, 43 S.E. 906, 907 (1903).

Defendant has failed to attend to her rights in this

matter.

“Continuances are not favored and the party
seeking a continuance has the burden of
showing sufficient grounds for it.” These
grounds include a showing of good cause and
just terms. N.C.G.S. § 1A-1, Rule 40(b) of
the North Carolina Rules of Civil Procedure.
Good faith and due diligence are also
required of the movant. “The chief
consideration to be weighed in passing upon
the application is whether the grant or
denial of a continuance will be in
furtherance of substantial justice.”
Continuances are “not reviewable absent a
manifest abuse of discretion.”

McDonald v. Taylor, 106 N.C. App. 18, 22, 415 S.E.2d 81, 83

(1992) (citations omitted). Defendant has failed in her burden

of showing due diligence in her response to Plaintiff’s action,
 -14-
and Defendant has failed in her burden of showing good cause and

that the trial court abused its discretion in denying

Defendant’s last-minute motion for a continuance. Defendant has

not shown any violation of her right to due process under the

Fourteenth Amendment. Defendant has demonstrated that she

eschewed the advice of the Clerk of Court to seek advice from an

attorney, even though Defendant stated in her affidavit that had

she had more specific notice of the December 2009 hearing she

would most likely have obtained the services of an attorney.

See Creasman v. Creasman, 152 N.C. App. 119, 125, 566 S.E.2d

725, 729 (2002) (“failure to obtain an attorney or seek legal

advice is not excusable neglect” for the purposes of a Rule

60(b) motion). When Defendant was again put on notice of an

upcoming court date, she once again relied solely on her own

letters and motions, mailed to the Clerk of Court or Plaintiff’s

attorney, to seek advice or assistance in attending to her

rights. Plaintiff’s attorney’s obligation was to Plaintiff, not

Defendant, and dispensing legal advice is not one of the duties

of a clerk of court. N.C. Gen. Stat. Chapter 7A, Article 12

(2013); N.C. Gen. Stat. § 84-4 (2013).

Defendant argues that the Clerk of Court failed to comply

with the Case Management Rules of the Eighteenth Judicial

District, and thus she should have been granted a continuance.
 -15-
Defendant cites to no authority for the proposition that failing

to comply with local rules regarding case management requires a

trial court to grant a continuance, and we are aware of none.

Further, the rule that Defendant claims was in effect at the

relevant time1 was not violated according to Defendant’s own

recitation of the facts. According to the rule as cited by

Defendant:

The Case Manager shall publish preliminary
Trial Calendars four (4) weeks prior to the
start of the session and preliminary Motion
Calendars two (2) weeks prior to the start
of the session. The Clerk of Superior Court
shall distribute the Preliminary Calendars
to all attorneys and unrepresented parties
having a case or cases thereon.

Defendant does not contend there was a failure to publish the

preliminary trial calendar at least four weeks prior to the

start of the session. Defendant argues that the preliminary

trial calendar was not mailed to her until 10 February 2010,

“less than three (3) weeks prior to the start of the session.”

The rule, as presented by Defendant, required that the

preliminary trial calendar be published four weeks prior to the

beginning of the session, which is not disputed, and that this

1
The case management rules for the Eighteenth Judicial District
are posted online at
http://www.nccourts.org/Courts/CRS/Policies/LocalRules/Documents
/1597.pdf. However, these rules were amended effective 1
January 2014, and the current rules do not mirror the rules as
cited by Defendant.
 -16-
preliminary calendar was “distributed” to Defendant, which

Defendant plainly states was done. Defendant has failed to show

any violation of the local rules, much less that any such

violation required the trial court to grant her request for an

emergency continuance.

Further, Defendant fails to cite any authority in support

of her challenge to the basis for the trial court’s ruling –

that the 11 December 2009 order setting this matter for trial

“takes priority over any local rule pertaining to the setting of

this matter for trial[.]” Goodson v. P.H. Glatfelter Co., 171

N.C. App. 596, 606, 615 S.E.2d 350, 358 (2005) (“It is not the

duty of this Court to supplement an appellant’s brief with legal

authority or arguments not contained therein.”). This argument

is without merit.

IV.

In Defendant’s seventh argument, she contends the trial

court erred in denying her motions pursuant to N.C. Gen. Stat. §

1A-1, Rules 52, 59, and 60 of the North Carolina Rules of Civil

Procedure. We disagree.

Because Defendant argues the trial court erred in denying

her motions to set aside judgment and order a new trial based

upon “the lack of any notice whatsoever of the March 15, 2010

trial date,” we find no merit in Defendant’s argument. As we
 -17-
have discussed above, if Defendant was unaware of the trial date

in this matter, it was a result of Defendant’s own lack of

diligence, not a result of any lack of notice beyond Defendant’s

control. The trial court did not err in denying Defendant’s

motions pursuant to Rules 52, 59, and 60 of the North Carolina

Rules of Civil Procedure. Defendant’s argument is without

merit.

V.

In Defendant’s final argument, she contends the trial court

erred in failing to rule on her 22 January 2008 motion to

dismiss. We disagree.

Defendant never calendared this motion for a hearing. She

cannot now complain that the trial court erred in not ruling on

a motion that was never heard due to Defendant’s lack of

diligence. Pepper, 132 N.C. at 316, 43 S.E. at 907; see also

Alekman v. Ashley's Lawn Care & Landscaping, Inc., 185 N.C. App.

158 (2007) (unpublished opinion). Defendant’s argument is

without merit.

No error.

Judges STEELMAN and ERVIN concur.

Report per Rule 30(e).