Opinion
No. 07-637.
Filed March 18, 2008.
Swain County No. 06CVS215.
Appeal by petitioner from orders entered 6 February 2007 and 7 February 2007 by Judge Ronald K. Payne in Swain County Superior Court. Heard in the Court of Appeals 11 December 2007.
The John C. Hunter Law Firm, P.L.L.C., by John C. Hunter, for petitioner. Young Moore and Henderson P.A., by Reed N. Fountain, for respondent.
The State Board of Examiners of Plumbing, Heating and Fire Sprinkler Contractors (respondent) permanently revoked the license to engage in business as a heating contractor of Ralph Joseph Klein, doing business as Ralph Klein Heating Cooling (petitioner), in a 24 August 2006 order. Petitioner sought judicial review of respondent's order in the Swain County Superior Court pursuant to N.C. Gen. Stat. § 150B-43. In his petition for judicial review, petitioner asked to present additional evidence in support of the petition for judicial review, pursuant to N.C. Gen. Stat. § 150B-49. After a hearing, the superior court denied petitioner's request to present additional evidence in a 6 February 2007 order. In a 7 February 2007 order, the superior court affirmed respondent's 24 August 2006 order revoking petitioner's license. Petitioner now appeals both orders of the superior court. For the reasons stated below, we affirm both orders.
This matter was instituted by respondent's issuance of a notice of hearing on 26 April 2005, although the first consent order suspending petitioner's license was issued 10 April 2002. The notice was amended on 10 May 2005. The hearing was rescheduled for 9 August 2005, then for 8 November 2005, then for 11 April 2006, and finally for 11 July 2006. The matter was heard on 8 August 2006. The 4 May 2006 scheduling order setting a hearing date for 11 July 2006 states, "No continuance will be granted in this matter based on engagement of counsel, or for medical reasons not requiring hospitalization. If [petitioner] demonstrates an inability to travel, he may participate in the hearing by telephone." Petitioner requested another continuance on 3 August 2006, which respondent denied after "consider[ing] the number of prior continuances, the transfer of the hearing to Asheville for the convenience of witnesses and [petitioner], and the limited appearance by counsel. . . ." Respondent noted in its order that petitioner "advised Board counsel on August 4, 2006, that he might not appear. The Board waited past the scheduled time of hearing, but [petitioner] did not appear." Respondent heard the testimony of witnesses, reviewed the exhibits, and heard the arguments of counsel, and then issued its order permanently revoking petitioner's license.
The record shows that the 9 August 2005 hearing was rescheduled at the request of respondent.
In petitioner's petition for judicial review and application to present additional evidence, he averred that he would have presented competent and admissible evidence refuting several of respondent's findings of fact. He argued that respondent's denial of his request for a continuance prevented him from presenting this evidence at the 8 August 2006 hearing. He implicitly argued in his petition that respondent wrongfully denied his request for a continuance:
1. On August 4, 2006, the Petitioner, through counsel appearing for the limited purpose of seeking an [sic] continuance, informed the Board that on the date set for the hearing Petitioner was scheduled to receive an injection into his hip for severe hip pain. The side effects of this injection were severe enough that the Diagnostic Ordering Sheet for the procedure indicated that the Petitioner would need a driver to take him home following the injection. This information was provided to the Board. The date in question was the earliest date at which the Petitioner could receive the injection for his severe hip pain caused by a recent injury.
2. Despite this legitimate and compelling justification for the a [sic] continuance, the Board summarily denied the Petitioner's request for a hearing.
3. Following the denial of the continuance request, Petitioner again informed the Board that he could not attend the hearing on August 8, 2006.
4. Despite Petitioner's absence for legitimate medical reasons the Board conducted a hearing on August 8, 2006. At this hearing Petitioner was neither present to present his testimony nor to question those witnesses that did appear before the Board.
The superior court's order denying petitioner's motion to present additional evidence noted that both parties stipulated that petitioner's testimony would be material. The court reasoned that because the requested evidence would be material, the issue before it was "whether . . . the Board abused its discretion in refusing to grant a continuance in this matter." It concluded
that the Board did not abuse its discretion in denying [petitioner's] Motion for Continuance in that the Board had made it [sic] clear its intention of going forward in the scheduling order of the matter dated May 4, 2006, wherein the Board stated the matter would not be continued for engagement of counsel or for medical reasons not requiring hospitalization.
The court explained, "Petitioner did not demonstrate that he was hospitalized as required by the Board as a ground for continuance nor has the Petitioner demonstrated that he was unable to travel. Assuming arguendo [sic] that he was unable to travel, he declined to participate in the hearing by telephone."
Petitioner argues that the court erred by applying the abuse of discretion standard to its motion. He argues that the court was required to remand the case so that additional evidence could be taken because "the evidence [was] material to the issues, [was] not merely cumulative, and could not reasonably have been presented at the administrative hearing. . . ." N.C. Gen. Stat. § 150B-49 (2007). Petitioner correctly asserts that the evidence was material and not merely cumulative, and that the court's decision hinged on whether the evidence "could not reasonably have been presented at the administrative hearing." Id. As acknowledged by petitioner's own motion, the evidence was not presented at the hearing because respondent denied his request for a continuance. If the request for a continuance was improperly denied, then the evidence could not reasonably have been presented at the administrative hearing. However, as the superior court rightly determined, the inverse is also true; if the request for a continuance was properly denied, then the evidence could reasonably have been presented at the administrative hearing, and petitioner should have done so.
It follows that the superior court should have applied the appropriate standard of review for determining whether respondent properly denied the request for a continuance. Such denials are reviewed for an abuse of discretion. Draughon v. Harnett Cty. Bd. of Educ., 166 N.C. App. 464, 466, 602 S.E.2d 721, 723 (2004). Accordingly, we hold that the superior court applied the proper standard of review when ruling on petitioner's motion to present additional evidence.
Petitioner next argues that the superior court erred by concluding, as a matter of law, that respondent did not abuse its discretion by denying petitioner's request for a continuance. We review the superior court's order for an abuse of discretion. Id.
"The scope of review to be applied by the appellate court under [the Administrative Procedure Act] is the same as it is for other civil cases." N.C. Gen. Stat. § 150B-52 (2007).
Generally, continuances are not favored; and therefore, the trial court should only grant a continuance where the moving party demonstrates "good cause . . . and upon such terms and conditions as justice may require." N.C. Gen. Stat. § 1A-1, Rule 40(b) (2003). The burden of proof rests on the moving party to demonstrate sufficient grounds justifying the continuance. When ruling on a motion to continue the trial judge must consider not only the grounds given for the motion, but whether the moving party has acted with diligence and in good faith, and may consider facts of record as well as facts within his judicial knowledge.
Id., 602 S.E.2d at 723-24 (additional citations and quotations omitted).
Petitioner argues that our "courts have generally agreed that a denial of a requested continuance is improper . . . when the legitimate medical condition of the party makes it difficult or impossible for the party to attend or participate in the hearing." Petitioner's only offering of precedential authority to support this statement is Abernathy v. Trust Co., 202 N.C. 46, 161 S.E. 705 (1932). In Abernathy, the plaintiff moved for a continuance because she was ill and could not attend the trial and testify on her own behalf. Id. at 47, 161 S.E. at 705. The plaintiff's attorney offered the plaintiff's affidavit and certificates from two physicians in support of the motion, and it appeared that the "plaintiff was ill, and for that reason was unable to leave her home, which is about eleven miles from the courthouse, to attend court." Id., 161 S.E. at 705-06. The Supreme Court ordered a new trial on other grounds, but said in dicta that the trial court should have granted the continuance. Id. at 48, 161 S.E. at 706.
Petitioner's case is easily distinguished from Abernathy. The doctor's note that petitioner presented in support of his motion to continue states that he was scheduled to receive a "hip injection" to treat "hip pain" on 8 August 2006 at 9:00 a.m. It states also, "Will need driver." There was no evidence that petitioner could not travel to the hearing, which had been moved to Asheville for his convenience. In his brief, petitioner insists that the words "Will need driver" "clearly indicate? that following his treatment, Petitioner would not have been in the proper condition to participate in the hearing in any meaningful manner." We disagree. Those words clearly indicate that petitioner would need a driver, but give no indication of petitioner's mental or cognitive state following the injection, or his ability to attend or participate in the hearing. Petitioner did not offer any evidence that he had to receive the hip injection on the morning of his previously scheduled hearing.
Furthermore, respondent was well aware that petitioner's hearing had been rescheduled numerous times and that the last scheduling order stated that no continuance would be granted for medical reasons not requiring hospitalization. Petitioner offered no evidence that receiving a hip injection would require hospitalization, and the note that petitioner would need a driver following the procedure suggests that petitioner would not have been hospitalized. The scheduling order also provided that if petitioner could not travel, he could participate by telephone. He did not avail himself of this option, either.
Accordingly, we hold that the superior court properly found that respondent did not abuse its discretion by denying petitioner's motion to continue.
We affirm the orders of the superior court.
Affirmed.
Judges WYNN and BRYANT concur.
Report per Rule 30(e).