Opinion
No. COA02-208
Filed 1 April 2003 This case not for publication
Appeal by defendants from order entered 23 August 2001 and judgment entered 5 September 2001 by Judge William Z. Wood, Jr. in Guilford County Superior Court. Heard in the Court of Appeals 13 November 2002.
Thomas B. Kobrin for plaintiff appellee. SIMPSON KUEHNERT VINAY BELLAS, P.A., by Eric R. Bellas, for defendants appellants.
Guilford County No. 00 CVS 3865.
Donway Trucking, Incorporated ("Donway Trucking") and Don Golds ("Golds") (hereinafter, collective "defendants") appeals from a judgment and order of the trial court entered in favor of Resun Leasing, Incorporated ("plaintiff"). Golds is the individual defendant named in this matter, the president of Donway Trucking, and the principal witness for Donway Trucking. The relevant facts are as follows: On 21 June 1999, plaintiff and Donway Trucking entered into a lease agreement. A dispute arose pertaining to Donway Trucking's failure to make payments under the lease agreement. As a result, plaintiff filed a complaint against defendants. The matter was set for a hearing on 20 August 2001.
On the date of the hearing, plaintiff appeared in court along with counsel, Thomas B. Kobrin ("Kobrin"), and several witnesses. Golds failed to appear in court, however, Eric R. Bellas ("Bellas') appeared in court as counsel for defendants. In response to questions from the court regarding Golds' absence, Bellas informed the court that Golds was sick and seeking medical treatment. Bellas further informed the court that he could not contact Golds, but believed that he was either seeking treatment from his family physician or the hospital emergency room. When the court inquired about Golds' specific medical condition, Bellas stated that Golds was suffering from "pain in his side and rectal bleeding." After learning this information, the court recessed and ordered Bellas to contact Golds' doctor and inquire about his medical condition.
After the recess, Bellas reported that he failed to obtain any information regarding Golds' condition and failed to contact Golds by telephone. Bellas reported that he learned that Golds was sent to an emergency room by his physician, but that hospital personnel refused to confirm or deny whether Golds was a patient. Upon learning this information, the court informed the parties that there would be approximately a two hour recess in order for Bellas to contact Golds.
Following the second recess, Bellas failed to appear in court and no one appeared on behalf of defendants. Kobrin informed the court that Bellas would not be in court due to a family emergency. The court then ordered Kobrin to communicate with Bellas and inform him that the case would be tried on 21 August 2001, unless Golds was admitted into the hospital.
On 21 August 2001, Bellas filed, by facsimile, a "Motion to Continue." Attached to the motion was an affidavit signed by Golds and describing his symptoms as "internal bleeding," "sharp pains" in his "abdomen," "weakness," and "fatigue." The motion was also accompanied by a letter from Dr. David Abernathy ("Dr. Abernathy"), which stated that Golds' condition required a "leave of absence due to an illness" and that Golds would "not be able to attend the meeting in Greensboro on [21 August 2001]." The court delayed the matter again and ordered the parties to reconvene on 22 August 2001. Kobrin immediately relayed the new hearing date to Bellas. However, on 22 August 2001, neither Bellas nor Golds appeared in court. The court reset the hearing for 23 August 2001 and stated that defendants' motion for a continuance would be heard at that time.
On 23 August 2001, plaintiff, several witnesses for the plaintiff, Kobrin and Bellas appeared in court. Golds failed to appear and the motion for a continuance was heard by the trial court. During the hearing, Bellas informed the court that Golds had "significant problems" and was "running to the restroom about every thirty minutes." The court informed Bellas that the letter from Dr. Abernathy was "very vague" and that "illness" was not a medical diagnosis. The court denied the motion and ordered the trial to proceed in the absence of Golds. Defendants appeal.
The sole issue presented by this appeal is whether the denial of defendants' motion to continue the trial was an abuse of discretion. For the reason stated herein, we hold that the trial court did not abuse its discretion.
"Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it." Shankle v. Shankle, 289 N.C. 473, 482, 223 S.E.2d 380, 386 (1976). The decision to grant a motion for continuance is ordinarily in the trial court's discretion. State v. Branch, 306 N.C. 101, 104, 291 S.E.2d 653, 656 (1982). "It is well established that where matters are left to the discretion of the trial court, appellate review is limited to a determination of whether there was a clear abuse of discretion." White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). "A trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason." Id. The denial of a motion for a continuance "is not an abuse of discretion where the evidence introduced is conflicting or insufficient." Shankle, 289 N.C. at 483, 223 S.E.2d at 386.
In arguing their appeal, defendants rely heavily upon Abernathy v. Trust Co., 202 N.C. 46, 161 S.E. 705 (1932). In fact, defendants contend that the matter before this court is "exactly the same situation" as presented in Abernathy. We disagree. We find the case before this Court and Abernathy easily distinguishable. In Abernathy, the plaintiff became ill and was unable to appear in court. As a result of the plaintiff's illness, her counsel moved for a continuance at the time of trial. Id. at 47, 161 S.E. at 705. In support of her motion, the plaintiff's counsel offered plaintiff's affidavit and verification from two physicians. See id. The information offered to the court explained that plaintiff was ill because of the extraction of teeth ten days before trial. Id. at 47-48, 161 S.E. at 705-706. The plaintiff's physician "certified" that as a consequence of the extraction the plaintiff was ill, nervous, subject to fainting spells and unable to leave her home. Id. The trial court denied plaintiff's motion for a continuance. Id. at 48, 161 S.E. at 706. On appeal, our Supreme Court held that in the absence of any evidence tending to contradict the affidavit of the plaintiff and the "certificates" of her physician, the action should have been continued. See id.
In the case at bar, defendants failed to establish grounds for the court to grant the motion for a continuance. On 20 August 2001, the first day of trial, Golds failed to appear in court and failed to provide information to Bellas regarding his condition or location. The record reveals that the court delayed this matter on three separate occasions due to the failure of Bellas and Golds to appear in court. However, on 21 August 2001, Bellas faxed a motion for a continuance to the court accompanied by a letter from Dr. Abernathy. The letter read in pertinent part:
. . . Golds will need to take a leave of absence due to an illness. We are not sure of his return date, it is pending further testing other M.D. referrals. He will not be able to attend the meeting in Greensboro on 8/21/01. . . .
Here, unlike the information presented in Abernathey, the information from Golds' physician is (1) vague, (2) fails to give a medical diagnosis, and (3) fails to state whether Golds is hospitalized or confined to his residence. Furthermore, the letter states that Golds could not "attend the meeting in Greensboro on [21 August 2001]," but fails to state a reason for Golds' continued absence on 22 and 23 August 2001. Thus, we are unable to conclude that the trial court's action in denying the continuance request was manifestly unsupported by reason. We hold that the trial court did not abuse its discretion.
Affirmed.
Judges HUNTER and WYNN concur.
Report per Rule 30(e).