An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority.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).