Judith M. Daly Att'y at L.

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
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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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

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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Opinion of the Court

“[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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