Shackelford v. Lundquist ( 2014 )


Menu:
  • An unpublished opinion of the North Carolina Court of Appeals does not constitute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).