IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA16-466
Filed: 6 December 2016
Iredell County, No. 14 CVD 2186
JUDITH M. DALY ATTORNEY AT LAW, P.A., d.b.a. DALY LAW FIRM, Plaintiff,
v.
ALESSANDRA L. McKENZIE, Defendant.
Appeal by defendant from order entered 2 October 2015 by Judge Richard
Halloway in Iredell County District Court. Heard in the Court of Appeals 20 October
2016.
Gottholm, Ralston & Benton, PLLC, by Matthew L. Benton, for plaintiff-
appellee.
Defendant-appellant Alessandra McKenzie, pro se.
ZACHARY, Judge.
Alessandra McKenzie (defendant) appeals from an order requiring her to pay
Judith M. Daly Attorney at Law, P.A., d.b.a. Daly Family Law Firm (plaintiff) the
sum of $17,509.63 plus costs. On appeal, defendant argues that the trial court erred
and abused its discretion by denying her oral motion for a continuance and her motion
to consolidate this case with a case that defendant had filed in superior court. After
careful consideration of defendant’s arguments, we conclude that the issue of the trial
court’s denial of defendant’s motion to consolidate is not properly before us, and that
JUDITH M. DALY ATT’Y AT L., P.A. V. MCKENZIE
Opinion of the Court
the trial court did not abuse its discretion by denying defendant’s motion for a
continuance.
I. Factual and Procedural Background
On 4 January 2012, defendant hired plaintiff to represent her in a contested
family law case involving issues of child custody, child support and equitable
distribution. Defendant paid plaintiff approximately $56,475 for legal services
rendered by plaintiff between January and September, 2012. In October, 2012,
plaintiff informed defendant that she owed plaintiff $17,509.63 for legal services and
that plaintiff would not continue to represent defendant until this amount was paid.
Defendant failed to remit the amount owed to plaintiff, who then ceased her
representation of defendant. On 8 March 2013, plaintiff sent defendant a letter
stating that plaintiff intended to initiate legal action against defendant to collect the
debt she owed to plaintiff. The letter also informed defendant that, if she disputed
the fees or expenses that plaintiff was claiming, defendant could contact the North
Carolina State Bar. Plaintiff never received any communication from the State Bar
concerning the matter.
On 8 October 2014, plaintiff filed a complaint against defendant seeking to
recover $17,509.63 from defendant for plaintiff’s legal services. On 6 November 2013,
defendant filed a pro se answer denying the material allegations of plaintiffs’
complaint and asserting counterclaims for breach of contract, negligence and gross
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negligence, malpractice, and intentional infliction of emotional distress. The matter
was referred to arbitration, which was scheduled for 5 February 2015. The
arbitration was rescheduled until 16 February 2015, due to defendant’s scheduling
conflict with another court appearance, and was rescheduled again until 31 March
2015. During the arbitration conducted on 31 March 2015, defendant took a
voluntary dismissal of her counterclaims. Following arbitration, plaintiff was
awarded $17,509.63, the amount of defendant’s debt to plaintiff.
On 30 April 2015, defendant appealed from the arbitration award and sought
a trial de novo. The matter was scheduled for a bench trial during the week of 8 June
2015; however on 10 June 2015, the trial was continued until the week of 29 June
2015 at plaintiff’s request. On 26 June 2015, defendant filed a new answer, denying
the material allegations of plaintiff’s complaint and asserting counterclaims for which
defendant sought damages in excess of $50,000. The case was continued from 29
June 2015 until 13 July 2015, and again from 13 July 2015 until 31 August 2015,
both times at defendant’s request.
On 22 July 2015, defendant filed a complaint against plaintiff in Iredell County
Superior Court. Defendant (although defendant is the named plaintiff in her lawsuit,
we refer to her as the defendant throughout this opinion to avoid confusion) asserted
claims for breach of contract, malpractice, intentional infliction of emotional distress,
and violation of the Unfair and Deceptive Trade Practices Act. Defendant did not
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assert that she had suffered damages in excess of $50,000; however, she did allege
that she had paid plaintiff more than $50,000 and that plaintiff had breached the
contract for plaintiff’s provision of legal services. On 24 August 2015, defendant filed
a motion in district court, seeking consolidation of plaintiff’s claim with the case
defendant had filed in superior court, pursuant to N.C. Gen. Stat. § 1A-1, Rule 42.
Plaintiff’s claim for money owed by defendant came on for a bench trial in
Iredell County District Court on 31 August 2015. Plaintiff was represented by
counsel at the hearing, and defendant appeared pro se. At the outset of the trial,
defendant asked the trial court to rule on her motion to consolidate the complaint
that defendant had filed in superior court with plaintiff’s claim, so that the cases
would be tried together in superior court. Plaintiff’s counsel argued that under N.C.
Gen. Stat. § 1A-1, Rule 42(a), only a superior court judge could rule on defendant’s
Rule 42 motion. The trial court agreed with plaintiff and denied defendant’s motion
to consolidate.
After the trial court denied defendant’s Rule 42 motion, defendant made an
oral motion to continue because she needed “time for discovery.” Plaintiff objected on
the grounds that the case had been continued several times and plaintiff had already
provided defendant with the file in her case. Defendant contended that she was
entitled to discovery in order to prepare for her superior court case, but admitted that
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she had not filed any written requests for discovery. The trial court denied
defendant’s continuance motion.
During the trial, plaintiff testified under oath that she and defendant had a
contract for legal representation under the terms of which defendant owed plaintiff
$17,509.63, and introduced documents in support of her testimony. When plaintiff
sought to introduce a billing document, defendant “objected” on the grounds that she
wanted a continuance in order to hire an attorney and refile her motion for
consolidation in superior court. The trial court admitted the bill into evidence, but
took a short recess in order to allow defendant to contact an attorney. After the recess,
defendant again argued that she needed a continuance in order to obtain discovery.
Plaintiff objected and argued that defendant had failed to seek discovery for eleven
months and that defendant’s last-minute request for another continuance was made
for an “improper purpose.” When the trial court denied defendant’s requests for a
continuance, defendant stated that she would “just appeal whatever.”
After plaintiff rested her case, defendant called plaintiff as a witness. Her
examination of plaintiff focused upon instances during plaintiff’s representation of
defendant when, in defendant’s opinion, plaintiff was unprepared. Defendant did not
testify at the trial or present any other witnesses.
On 2 October 2015, the trial court entered two written orders. In an “Order on
Motion to Consolidate” the court denied defendant’s Rule 42 motion for consolidation
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of cases. In a separate order, the trial court entered findings of fact and conclusions
of law concerning the merits of plaintiff’s claim. The trial court found that defendant
owed plaintiff $17,509.63, and ordered defendant to pay that amount, plus costs. On
30 October 2015, defendant filed a notice of appeal “from Judge Richard Holloway’s
decision in Daly v. Alessandra McKenzie, 14-CVD-2186, heard in the District Court
of Iredell County on August 31, 2015.”
II. Scope of Appeal
N.C.R. App. P. 3(d) (2015) provides in relevant part that a notice of appeal
“shall designate the judgment or order from which appeal is taken[.]” In this case,
defendant’s notice of appeal stated that she was appealing “from [the trial court’s]
decision in Daly v. Alessandra McKenzie, 14-CVD-2186[.]” Although defendant did
not use the word “order,” we may reasonably infer that the “decision” to which
defendant referred was the trial court’s decision in favor of plaintiff on plaintiff’s
claim for money owed by defendant. However, defendant neither gave notice from
the trial court’s denial of her motion to consolidate cases, nor used language that
could be interpreted to refer to the denial of her consolidation motion. We hold that
defendant failed to give notice of appeal from the denial of her motion to consolidate.
Although N.C.R. App. P. 3(d) requires an appellant to designate the judgment
or order from which an appeal is taken, N.C. Gen. Stat. § 1-278 (2015) provides that
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“[u]pon an appeal from a judgment, the court may review any intermediate order
involving the merits and necessarily affecting the judgment.”
This Court has held that even when a notice of appeal fails
to reference an interlocutory order, in violation of Rule 3(d),
appellate review of that order pursuant to N.C. Gen. Stat.
§ 1-278 is proper under the following circumstances: (1) the
appellant must have timely objected to the order; (2) the
order must be interlocutory and not immediately
appealable; and (3) the order must have involved the
merits and necessarily affected the judgment. All three
conditions must be met.
Tinajero v. Balfour Beatty Infrastructure, Inc., 233 N.C. App. 748, 757, 758 S.E.2d
169, 175 (2014) (citing Brooks v. Wal-Mart Stores, Inc., 139 N.C. App. 637, 641, 535
S.E.2d 55, 59 (2000)). An interlocutory order is “one made during the pendency of an
action, which does not dispose of the case, but leaves it for further action by the trial
court in order to settle and determine the entire controversy.” Veazey v. Durham, 231
N.C. 357, 362, 57 S.E.2d 377, 381 (1950). The denial of defendant’s motion for
consolidation was interlocutory as it did not resolve the issues raised by plaintiff’s
complaint. However, even if we treat defendant’s statement to the court that she
intended to appeal as an objection, the denial of defendant’s motion to consolidate
does not meet the third requirement for review of an interlocutory order from which
appeal is not taken, which is that the interlocutory order “must have involved the
merits and necessarily affected the judgment.” “An order involves the merits and
necessarily affects the judgment if it deprives the appellant of one of the appellant’s
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substantive legal claims.” Yorke v. Novant Health, Inc., 192 N.C. App. 340, 348, 666
S.E.2d 127, 133 (2008). The denial of defendant’s motion to consolidate cases did not
involve the merits of plaintiff’s claim for money owed, and did not affect the judgment
in that case. We conclude, therefore, that defendant has failed to preserve for
appellate review the denial of her motion for consolidation of cases.
III. Standard of Review
As a general rule, “when the trial court sits without a jury, the standard of
review on appeal is whether there was competent evidence to support the trial court’s
findings of fact and whether its conclusions of law were proper in light of such facts.”
Lyons-Hart v. Hart, 205 N.C. App. 232, 235, 695 S.E.2d 818, 821 (2010). “[A] trial
court’s findings of fact in a trial without a jury will be upheld if supported by any
competent evidence[,] . . . even when evidence to the contrary is present.” North
Carolina Farm Bureau Mut. Ins. Co. v. Stox, 330 N.C. 697, 702, 412 S.E.2d 318, 322
(1992) (citation omitted). We note that defendant asserts, incorrectly, that the
standard of review of the trial court’s factual determinations is “plain error.” “In
North Carolina, plain error review has no application to appeals in civil cases.” State
v. Lawrence, 365 N.C. 506, 507 fn1, 723 S.E.2d 326, 327 fn1 (2012).
“ ‘The standard of review for denial of a motion to continue is generally whether
the trial court abused its discretion.’ ” HSBC Bank USA Nat. Association v. PRMC,
Inc., __ N.C. App. __, __, 790 S.E.2d 583, 586 (2016) (quoting Morin v. Sharp, 144
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N.C. App. 369, 373, 549 S.E.2d 871, 873 (2001)). As a result, we review the ruling
that defendant challenges for abuse of discretion. “A trial court may be reversed for
abuse of discretion only upon a showing that its actions are manifestly unsupported
by reason . . . [or] upon a showing that [the trial court’s decision] was so arbitrary
that it could not have been the result of a reasoned decision.” White v. White, 312 N.C.
770, 777, 324 S.E.2d 829, 833 (1985).
IV. Denial of Defendant’s Request for a Continuance
At the beginning of the trial on plaintiff’s claim, defendant asked the trial court
to rule on her Rule 42 motion for consolidation of cases. When the court denied her
motion, defendant then asked for a continuance, stating that “I am not ready to
proceed today. . . . I need to have time for discovery, Your Honor.” However,
defendant admitted that during the 11 months since plaintiff had filed her complaint,
defendant had not filed any written requests or motions seeking discovery. In
addition, the record establishes that the case had previously been continued on three
occasions, once at plaintiff’s request and twice upon defendant’s request. Based upon
these facts, the trial court denied defendant’s motion for a continuance.
During the trial, defendant “objected” to the introduction of a bill for plaintiff’s
legal services to defendant on the grounds that defendant was “asking for a
continuance so I can get -- so I can get an attorney for this matter[.]” The trial court
ruled that the billing document was admissible, but took a recess in order to allow
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defendant to contact an attorney. After the recess, during which defendant was
unable to hire an attorney, plaintiff testified that she had provided defendant with
the file of her case. The trial court asked defendant what discovery she was seeking,
in addition to what had already been provided. Defendant answered that she wanted
to obtain “deposition, notes -- definitely notes. . . . [and] also, I would like to see the
appointment book. . . .” Plaintiff argued that defendant’s answer showed that she
sought discovery for her superior court case, which was not before the court. The trial
court denied defendant’s second motion for a continuance.
The record thus establishes that: (1) as of 31 August 2015, the case had been
continued three times, twice at defendant’s request; (2) during the eleven months in
which the case was pending, defendant did not file any written requests or motions
for discovery; (3) plaintiff had provided defendant with a copy of her file; (4) defendant
did not offer any explanation for her failure to hire an attorney and admitted that she
was represented by counsel on the family law matters for which she had originally
hired plaintiff; and (5) defendant failed to present her Rule 42 motion to a superior
court judge. On these facts, we hold that the trial court’s decision to deny defendant’s
request for a continuance was not an abuse of discretion.
We have considered defendant’s arguments to the contrary, insofar as they are
based on the record. “Pursuant to the North Carolina Rules of Appellate Procedure,
our review is limited to the record on appeal . . . and any other items filed with the
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record in accordance with Rule 9(c) and 9(d).” Kerr v. Long, 189 N.C. App. 331, 334,
657 S.E.2d 920, 922 (2008). “Our appellate courts ‘can judicially know only what
appears of record.’ ” Hampton v. Scales, __ N.C. App. __, __, 789 S.E.2d 478, 487 (2016)
(quoting State v. Price, 344 N.C. 583, 593-94, 476 S.E.2d 317, 323 (1996)). In this
regard, we observe that defendant makes certain assertions that she “fail[s] to
support . . . by citation to sworn testimony, affidavit, documentary evidence, or any
other record evidence” and that “[i]t ‘is axiomatic that the arguments of counsel are
not evidence.’ ” Basmas v. Wells Fargo Bank N.A., 236 N.C. App. 508, 513, 763 S.E.2d
536, 539 (2014) (quoting State v. Roache, 358 N.C. 243, 289, 595 S.E.2d 381, 411
(2004)).
For example, in her statement of facts, defendant contends that on 29 June
2015 she “requested that the trial be continued for 11-12 months to allow her to
conduct discovery” and that the court “did not rule on Appellant’s discovery request,
but instead recused himself, and continued the case to 13 July 2015.” Defendant cites
page 28 of the record for this statement. However, the continuance order on page 28
contains no reference to the reason for defendant’s continuance motion or to the
court’s recusal. Nor do defendant’s arguments at trial constitute “evidence” of the
matters asserted.
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In support of her argument that the trial court erred by denying her request
for a continuance, defendant challenges the evidentiary support for the trial court’s
Finding No. 10 in its order, which addresses defendant’s continuance request:
10. The Defendant today testified that she was unprepared
to proceed today and was asking for a continuance. The
case had been continued three prior times, twice for the
Defendant and once for the Plaintiff, but the file does not
reflect why. The Defendant also asked for a continuance to
obtain discovery, but could not state which discovery she
was wishing to obtain. The Plaintiff testified that discovery
was already issued to the Defendant in the form of her file.
The Defendant attempted to contact an attorney for today’s
hearing and the Court in fact took breaks for her to do that,
but the Defendant stated she could not do that.
Defendant contends that the “trial transcript plainly demonstrates that [the
trial court’s] statement that reasons for the prior grants of continuances in
proceedings were unknown is belied by testimonial evidence offered by the parties.”
However, the “testimonial evidence” to which defendant refers consists only of the
unsworn statements or arguments of defendant and counsel for plaintiff, which we
do not consider. Defendant also contends that “it is clear from the testimony and
undisputed facts that all prior continuances were for good cause” and that “[c]ontrary
to representations made by counsel for [plaintiff], the continuances were not merely
to delay.” Plaintiff’s argument at trial regarding defendant’s motive for seeking a
continuance is not evidence, and we do not consider it. Nor do we consider defendant’s
contentions regarding the reasons for the previous continuances, as the continuance
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orders do not themselves provide a reason for the continuance. Moreover, defendant
fails to identify any evidence indicating that the trial court denied her request for a
continuance on the grounds that the earlier continuances were not for good cause.
Accordingly, the reasons for these earlier continuances are not relevant to our
analysis of whether the trial court abused its discretion in denying her motion on the
day of trial.
Defendant further asserts that the trial court’s finding that defendant was
unable to identify the discovery she sought for the trial on plaintiff’s complaint was
contradicted by defendant’s statements that she sought “documents and things . . .
including case notes and legal research in this matter, her appointment book, and the
ability to conduct further discovery that would expand into issues related to her
counterclaims.” The trial of plaintiff’s claim for money owed by defendant presented
the straightforward question of whether, under the terms of the parties’ contract,
defendant owed a debt to plaintiff for legal services. Defendant articulates no
relationship between this trial and the discovery of the above-listed items, which she
candidly admits were sought in the hopes that they “would expand into issues related
to her counterclaims.” In addition, defendant does not identify any discoverable
material to which she was entitled that could have had an effect on the outcome of
the trial on plaintiff’s complaint. We conclude that the trial court’s finding is
supported by competent evidence. We further conclude that, even if defendant had
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informed the trial court of specific relevant and admissible matters on which she
wanted to conduct discovery, it would not have been an abuse of discretion for the
trial court to deny her continuance motion, given that she had failed to file any motion
or request for discovery during the 11 months that the case was pending.
For the reasons discussed above, we conclude that the trial court did not abuse
its discretion by denying defendant’s request for a continuance, and that the orders
of the trial court should be
AFFIRMED.
Judges STROUD and McCULLOUGH concur.
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