Opinion
No. COA11–1529.
2012-07-17
In the Matter of the Foreclosure of the Deed of Trust of Charles D. JOHNSON, Grantor, Recorded in Book 3449 at Page 312 of the Moore County Registry to RMR Services, LLC, Substitute Trustee.
Robbins May & Rich, LLP, by Robert M. Friesen and R. Palmer Sugg, for petitioner-appellee. Stevens Martin Vaughn & Tadych, PLLC, by K. Matthew Vaughn, for respondent-appellant.
Appeal by respondent from order entered 18 July 2011 by Judge Carl R. Fox in Moore County Superior Court. Heard in the Court of Appeals 9 May 2012. Robbins May & Rich, LLP, by Robert M. Friesen and R. Palmer Sugg, for petitioner-appellee. Stevens Martin Vaughn & Tadych, PLLC, by K. Matthew Vaughn, for respondent-appellant.
CALABRIA, Judge.
Charles D. Johnson (“Johnson”) appeals from the trial court's order of sale authorizing the trustee to proceed with the foreclosure of a property secured by a deed of trust. We affirm.
I. Background
Johnson signed a promissory note on 29 July 2008 promising to pay $150,000, with interest of five percent a year, to Robert Peter Dowd III and Jonathan Carter Dowd (collectively “the Dowds”). The promissory note was secured by a deed of trust, also dated 29 July 2008, between Johnson and the Dowds. The property securing the promissory note was located in Moore County, NC.
Johnson paid $100,000 plus accrued interest as of April 2009. However, the final payment of outstanding principal and interest, due on 29 July 2010, was never paid. Subsequently, RMR Services, LLC (“RMR”), a North Carolina Limited Liability Company, was substituted as trustee on the deed of trust on 31 March 2011.
On 1 April 2011, RMR filed a Notice of Hearing and Sale, which included a letter that was sent to Johnson pursuant to N.C. Gen.Stat. § 45–21.16(c)(5a). RMR's letter stated that although the outstanding amount of $67,020.55 was in default, Johnson had ten days from the date of the letter to pay. Since Johnson failed to pay the balance due, Robert Peter Dowd III signed an affidavit that the note and deed of trust were in default.
The Moore County Clerk of Court (“Clerk of Court”) heard the matter on 28 April 2011. Johnson was represented at that hearing by Linda Reid Oldham (“Oldham”) pursuant to a Notice of Limited Appearance. The parties disputed the amount due, and Oldham requested more information on the outstanding loan. The Clerk of Court declined to issue the requested order of sale.
On 4 May 2011, RMR filed an Amended Notice of Hearing and Sale. Another hearing was held before the Clerk of Court on 1 June 2011. Johnson appeared pro se and requested a continuance to obtain counsel. The Clerk of Court denied the request. The Clerk entered an order of sale authorizing the trustee to proceed with the foreclosure. Johnson appealed the order of sale.
At the 18 July 2011 hearing in Superior Court, Johnson again appeared pro se but indicated that Attorney Stephen D. Lowry (“Lowry”) was supposed to represent him, but was unable to attend due to a death in the family. Johnson requested another continuance. When the court asked whether or not he had paid Lowry to represent him, Johnson admitted he had not. The trial court denied the continuance and proceeded to hear the matter. Johnson gave no valid reason to prevent the trustee from the foreclosure of the deed of trust under the power of sale. The trial court indicated that Johnson had been given adequate and timely notice. The trustee was authorized to proceed with the foreclosure and ordered the sale of the property. Johnson appeals.
II. Motion to Continue
Johnson contends that the trial court abused its discretion by denying his pro se motion to continue when the attorney, he claimed represented him, was not present. We disagree.
“No continuance shall be granted except upon application to the court. A continuance may be granted only for good cause and upon such terms and conditions as justice may require.” N.C. Gen.Stat. § 1A–1, Rule 40(b) (2011). Whether to grant a continuance is within the discretion of the trial court. Skelly v. Skelly, ––– N.C.App. ––––, ––––, 715 S.E.2d 618, 620 (2011)(citing Brown v. Rowe Chevrolet–Buick, 86 N.C.App. 222, 224, 357 S.E.2d 181, 183 (1987)). Denial of a motion to continue does not constitute abuse of discretion where the evidence introduced is conflicting or insufficient. Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976) (citations omitted).
Johnson bases the majority of his argument on cases where the moving party's attorney was present before withdrawing. See Smith v. Bryant, 264 N.C. 208, 212, 141 S.E.2d 303, 306 (1965) (holding the denial of a motion to continue was improper where defendant's attorney withdrew on the trial date based on the assertion that the defendant had failed to pay him); Shankle, 289 N.C. at 478, 223 S.E.2d at 383 (holding the trial court abused its discretion in denying a motion to continue where attorney withdrew from the case on the day of trial, leaving appellant with no reasonable opportunity to retain counsel); Skelly, ––– N.C.App. at ––––, 715 S.E.2d at 623 (holding the trial court abused its discretion in denying a motion to continue where party consented to attorney's withdrawal and intended to retain new counsel, but was unaware until the day before the hearing that trial would not be continued).
However, there are also cases where the Court has upheld denials of continuances based on a defendant's failure to retain counsel within a reasonable time. See Roberson v. Roberson, 65 N.C.App. 404, 406–07, 309 S.E.2d 520, 522 (1983)(holding no abuse of discretion where defendant had three weeks to locate new counsel); Seafare Corp. v. Trenor Corp., 88 N.C.App. 404, 412, 363 S.E.2d 643, 650 (1988)(holding no abuse of discretion in denying defendant's motion to continue where defendant had failed to obtain counsel even though notified that the case was going to trial over four months before trial began).
The instant case differs from the facts in Smith, Shankle, and Skelly because the evidence in the record does not confirm that Johnson had retained counsel for the 18 July hearing. Instead, the evidence indicates the facts here are similar to those in Roberson and Seafare. For the 28 April hearing, Johnson's counsel made a limited appearance. At the next hearing, Johnson appeared pro se, and he filed his own appeal of the order of sale. When he received notice of the 18 July hearing on 10 June, Johnson had a time period of over five weeks to retain counsel. The facts suggest that five weeks was a reasonable time for Johnson to secure counsel to prepare for the 18 July hearing. Johnson claims he did retain counsel. However, nothing in the record supports his claim. Taking these facts cumulatively, the trial court did not abuse its discretion in denying Johnson's motion.
III. Conclusion
The trial court's decision to deny Johnson's motion to continue, based upon the evidence presented on 18 July 2011, was not an abuse of discretion. We affirm the trial court's denial of the motion to continue and the subsequent order of sale.
Affirmed. Judges STEELMAN and BEASLEY concur.
Report per Rule 30(e).