{ "id": 8525444, "name": "WACHOVIA BANK & TRUST COMPANY, N.A. v. TEMPLETON OLDSMOBILE-CADILLAC-PONTIAC, INC. (formerly TEMPLETON OLDSMOBILE-CADILLAC, INC., d/b/a TEMPLETON DODGE", "name_abbreviation": "Wachovia Bank & Trust Co., N.A. v. Templeton Oldsmobile-Cadillac-Pontiac, Inc.", "decision_date": "1993-03-16", "docket_number": "No. 9121SC946", "first_page": "352", "last_page": "360", "citations": [ { "type": "official", "cite": "109 N.C. App. 352" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "64 ALR3d 385", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "opinion_index": -1 }, { "cite": "6 ALR4th 342", "category": "reporters:specialty", "reporter": "A.L.R. 4th", "opinion_index": -1 }, { "cite": "278 S.E.2d 575", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1981, "pin_cites": [ { "page": "577" } ], "opinion_index": 0 }, { "cite": "52 N.C. App. 299", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12170179 ], "year": 1981, "pin_cites": [ { "page": "302" } ], "opinion_index": 0, "case_paths": [ "/nc-app/52/0299-01" ] }, { "cite": "395 S.E.2d 677", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "327 N.C. 427", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2493944, 2498066, 2496643, 2499215 ], "year": 1990, "pin_cites": [ { "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc/327/0427-02", "/nc/327/0427-03", "/nc/327/0427-01", "/nc/327/0427-04" ] }, { "cite": "391 S.E.2d 198", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1990, "pin_cites": [ { "page": "200", "parenthetical": "citations omitted" } ], "opinion_index": 0 }, { "cite": "98 N.C. App. 484", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525109 ], "year": 1990, "pin_cites": [ { "page": "488", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nc-app/98/0484-01" ] }, { "cite": "267 S.E.2d 674", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "300 N.C. 371", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8561380, 8561355, 8561335, 8561401, 8561310 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc/300/0371-04", "/nc/300/0371-03", "/nc/300/0371-02", "/nc/300/0371-05", "/nc/300/0371-01" ] }, { "cite": "262 S.E.2d 716", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1980, "pin_cites": [ { "page": "718" }, { "page": "719" } ], "opinion_index": 0 }, { "cite": "45 N.C. App. 287", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8548432 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/nc-app/45/0287-01" ] }, { "cite": "223 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1976, "pin_cites": [ { "page": "386", "parenthetical": "quoting 17 C.J.S. Continuances \u00a7 97 (1963)" } ], "opinion_index": 0 }, { "cite": "289 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570748 ], "year": 1976, "pin_cites": [ { "page": "483", "parenthetical": "quoting 17 C.J.S. Continuances \u00a7 97 (1963)" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0473-01" ] } ], "analysis": { "cardinality": 666, "char_count": 16579, "ocr_confidence": 0.726, "pagerank": { "raw": 4.0773665240050465e-07, "percentile": 0.9087630205467577 }, "sha256": "85da6be80410c0315517ca63787c63ab6b384b99d506b21152a54024e8f99324", "simhash": "1:9beef0207526ca67", "word_count": 2773 }, "last_updated": "2023-07-14T20:43:31.464788+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges JOHNSON and LEWIS concur." ], "parties": [ "WACHOVIA BANK & TRUST COMPANY, N.A. v. TEMPLETON OLDSMOBILE-CADILLAC-PONTIAC, INC. (formerly TEMPLETON OLDSMOBILE-CADILLAC, INC., d/b/a TEMPLETON DODGE" ], "opinions": [ { "text": "COZORT, Judge.\nOn 13 February 1990 plaintiff filed a complaint alleging breach of contract. Defendant answered denying the essential allegations of the complaint and filed a counterclaim also alleging breach of contract. On 14 February 1991 plaintiff moved for summary judgment. Defendant did not respond.\nThe case was calendared for 25 February 1991. John Hall, attorney of record for defendant, appeared at calendar call with attorney Richard Badgett. At that time, Mr. Hall informed the court that he had not received transcripts of previously taken depositions. The trial court advised the attorneys that the case was subject to call for trial at any time during the session of the court. After calendar call, the deputy clerk telephoned Mr. Hall\u2019s office to advise him that the matter was likely to be reached during the week. On Tuesday, 26 February 1991, Mr. Badgett gave written notice that he was attorney of record for defendant as co-counsel with Mr. Hall. That morning the deputy clerk again called Mr. Hall\u2019s office and left a message that the case would be called for trial at 2:00 p.m. that day. The deputy clerk was informed that Mr. Hall was in another county. At 1:45 p.m. the deputy clerk made a second telephone call to Mr. Hall\u2019s office and was informed again that Mr. Hall was in another county and would not return until late that day.\nMr. Badgett appeared at the pre-trial conference and moved for a continuance. The trial court denied the motion. Mr. Badgett renewed the motion at the beginning of the summary judgment hearing. The following exchange occurred between the court and counsel:\nThe COURT: Mr. Hall was here at calendar call on Monday.\nMR. BADGETT: Yes, he was.\nThe COURT: And the Court has notified his office, isn\u2019t that right Mr. Moore\u2014\nThe CLERK: Yes, sir.\nThe COURT: \u2014this morning and told him that we\u2019re \u2014\nMr. Badgett: All right, sir.\nThe COURT: \u2014we\u2019re ready to try and ready to be tried, to come on down. The motion to continue is denied.\nThe superior court granted partial summary judgment to plaintiff as to defendant\u2019s contract liability. After plaintiff presented evidence on damages, Mr. Badgett stated that he could not go forward with evidence and asked for a continuance as to the counterclaim. The trial court responded:\nThe motion to continue is denied. This matter has been on the calendar approximately seven weeks with no motions to continue before today or yesterday, I guess I should say, no reason adequate cause shown for a continuance. In the Court\u2019s discretion it\u2019s denied.\nThe trial court entered an order awarding plaintiff damages totaling $386,701.78, denying plaintiff\u2019s motion for attorneys\u2019 fees, and granting plaintiff\u2019s motion for directed verdict on defendant\u2019s counterclaim. Defendant appeals.\nOn appeal, defendant argues that the superior court erred in (1) denying defendant\u2019s motions to continue, and (2) granting partial summary judgment to plaintiff. We affirm.\nN.C. Gen. Stat. \u00a7 1A-1, Rule 40(b) (1990) provides that \u201c[n]o 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.\u201d In Shankle v. Shankle, 289 N.C. 473, 483, 223 S.E.2d 380, 386 (1976) (quoting 17 C.J.S. Continuances \u00a7 97 (1963)), the North Carolina Supreme Court set forth the standards the trial court must consider in ruling on a motion to continue:\nIn passing on the motion the trial court must pass on the grounds urged in support of it, and also on the question whether the moving party has acted with diligence and in good faith. In reaching its conclusion the court should consider all the facts in evidence, and not act on its own mental impression or facts outside the record, although ... it may take into consideration facts within its judicial knowledge. . . . The motion should be granted where nothing in the record controverts a sufficient showing made by the moving party, but since motions for continuance are generally addressed to the sound discretion of the trial court ... a denial of the motion is not an abuse of discretion where the evidence introduced on the motion for a continuance is conflicting or insufficient. . . . 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.\nSpecifically, defendant argues that the superior court erred in denying the motions by (1) not considering whether defendant acted with diligence and good faith in requesting the continuance, (2) not inquiring as to the presence of defendant\u2019s representative in the courtroom, and (3) not treating counsel\u2019s failure to appear as a withdrawal from the case. We disagree.\nThe General Rules of Practice for the Superior and District Courts, Rule 2(e) (1992) provides that\n[w]hen an attorney is notified to appear for the setting of a calendar, pretrial conference, hearing of a motion or for trial, he must, consistent with ethical requirements, appear or have a partner, associate or another attorney familiar with the case present. Unless an attorney has been excused in advance by the judge before whom the matter is scheduled and has given prior notice to his opponent, a case will not be continued.\n(Emphasis added). Although Mr. Hall indicated at calendar call that he had not yet received transcripts from previously taken depositions, there is nothing in the record to indicate that Mr. Hall requested to be excused in advance by the judge scheduled to hear the case or that he gave prior notice to plaintiffs that he would not be prepared to try the case as calendared. Mr. Badgett, co-counsel of record, appeared on behalf of defendant and moved for a continuance solely on the grounds that he was not prepared to try the case. Under Rule 2(e) Mr. Badgett was not entitled to a continuance.\nIn Chris v. Hill, 45 N.C. App. 287, 262 S.E.2d 716, disc, review denied, 300 N.C. 371, 267 S.E.2d 674 (1980), this Court addressed a similar factual situation on appeal from the denial of a Rule 60 motion for a new trial. There, plaintiffs filed a breach of contract action. On 18 January, defendants\u2019 counsel received a final trial calendar which indicated that jurors were to report on 23 January and that defendants\u2019 case was the fifth case calendared. Also on 18 January defendants\u2019 counsel received a letter from plaintiffs\u2019 counsel indicating that the case was the fourth case scheduled and there was a substantial likelihood the case would be heard during the 22 January session of the court. Based upon his experience as a trial attorney, defendants\u2019 counsel concluded that the case would not be heard on the same day that jurors were ordered to appear. Defendants\u2019 counsel failed to appear for calendar call. Both defendants\u2019 counsel and defendants failed to appear for the trial. After inquiring if either counsel or defendants were present, the trial court proceeded to select the jury, called for defendants to present evidence, and dismissed the counterclaim when defendants failed to appear. Plaintiffs then presented evidence, and the jury returned a verdict in plaintiffs\u2019 favor.\nOn appeal from the trial court\u2019s denial of a motion for a new trial, this Court disapproved of the trial court\u2019s failure to make any attempts to determine the reason for the absence of defendants and their counsel; however, we concluded that the trial court did not abuse its discretion in failing to do so. Since \u201ca party to a lawsuit must give it the attention a prudent man gives to his important business,\u201d id. at 290, 262 S.E.2d at 718, and defendants received adequate notice, this Court concluded that the evidence supported the trial court\u2019s conclusion that defendants\u2019 failure to appear for trial was not excusable. Id. at 290-91, 262 S.E.2d at 719.\nSimilarly, in the case now before us, we do not find the trial court abused its discretion in denying the motion to continue. The record is clear that Mr. Hall had notice that the case was calendared for the 25 February session of court and was likely to be reached during that week. The deputy clerk attempted to reach Mr. Hall on 26 February and left a message that the case would be called. Mr. Hall did not appear. Although not inquiring as to Mr. Hall\u2019s whereabouts, the trial court did inquire whether Mr. Hall had notice of the trial. As to the presence of defendant\u2019s representative, there is nothing in the record to indicate that defendant did not receive notice of the hearing. In fact, it is admitted that defendant\u2019s president was \u201con stand-by\u201d in Florida. We find the evidence before the trial court was sufficient to support a finding that the moving party did not act with diligence and good faith and failed to show good cause in requesting the continuance.\nDefendant further contends that the trial court had no discretion to deny the continuance because Mr. Hall\u2019s absence was tantamount to a withdrawal from the case. The record indicates that Mr. Hall did not withdraw as counsel for defendant. After the hearing, Mr. Hall continued to represent defendant and later filed a motion to set aside the judgment on behalf of defendant. We note also that defendant was represented by counsel of record during the proceedings. We find defendant\u2019s argument to be without merit.\nWe also find that Mr. Hall\u2019s absence had little effect on the summary judgment issue. Plaintiff filed a motion for summary judgment on 14 February 1991. Defendant did not respond to the motion and presented no affidavits or depositions in opposition to the motion. Defendant\u2019s answer and counterclaim were not verified. Summary judgment is appropriate \u201cif the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(c) (1990). If a moving party presents materials in support of the motion, the opposing party \u201cmay not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate, shall be entered against him.\u201d N.C. Gen. Stat. \u00a7 1A-1, Rule 56(e) (1990). Since defendant failed to respond to plaintiff\u2019s motion or present any materials opposing the motion to the trial court, and plaintiff is entitled to judgment as a matter of law, summary judgment was properly entered for plaintiff. Mr. Hall\u2019s absence does not appear to have had any effect on the propriety of summary judgment.\nFinally, defendant argues that the trial court erred in waiving defendant\u2019s right to a jury trial on the damages issue since Mr. Badgett was unfamiliar with the case and obviously had not sought the consent of his client to waive the jury trial. N.C. Gen. Stat. \u00a7 1A-1, Rule 38(d) (1990) provides that \u201c[a] demand for trial by jury . . . may not be withdrawn without the consent of the parties who have pleaded or otherwise appear in the action.\u201d Although Rule 38 requires the consent of the parties, \u201cthere is a presumption that an attorney has authority to act for his client and one challenging the attorney\u2019s actions as being unauthorized has the burden of rebutting the presumption.\u201d Gillikin v. Pierce, 98 N.C. App. 484, 488, 391 S.E.2d 198, 200, disc. review denied, 327 N.C. 427, 395 S.E.2d 677 (1990) (citations omitted). \u201cThis presumption applies to both procedural and substantive aspects of a case.\u201d Matter of R. J. Reynolds Tobacco Co., 52 N.C. App. 299, 302, 278 S.E.2d 575, 577 (1981). The presumption is reflected in N.C. Gen. Stat. \u00a7 1A-1, Rule 39(a)(1) (1990) which permits \u201cparties who have pleaded or otherwise appeared in the action or their attorneys of record ... by an oral stipulation made in open court and entered in the minutes, [to] consent to trial by the court sitting without a jury . . . .\u201d (Emphasis added.) In the present case, when defendant filed a motion to set aside the judgment, counsel failed to cite Mr. Badgett\u2019s waiver of jury trial as error. Counsel also failed to move to amend the record on appeal to include affidavits indicating that defendant desired a jury trial and did not consent to the waiver. Accordingly, we find that defendant has not presented any evidence to rebut the presumption that Mr. Badgett was authorized to waive the jury trial.\nWe have reviewed defendant\u2019s remaining assignments of error and find them to be without merit.\nThe judgment below is\nAffirmed.\nJudges JOHNSON and LEWIS concur.", "type": "majority", "author": "COZORT, Judge." } ], "attorneys": [ "Davis & Harwell, P.A., by Fred R. Harwell, Jr., for plaintiff appellee.", "Herman L. Stephens and Howard C. Jones, II, for defendant appellant." ], "corrections": "", "head_matter": "WACHOVIA BANK & TRUST COMPANY, N.A. v. TEMPLETON OLDSMOBILE-CADILLAC-PONTIAC, INC. (formerly TEMPLETON OLDSMOBILE-CADILLAC, INC., d/b/a TEMPLETON DODGE\nNo. 9121SC946\n(Filed 16 March 1993)\n1. Trial \u00a7 3.2 (NCI3d)\u2014 absence of lead counsel from trial \u2014 co-counsel unprepared \u2014denial of continuance\nThe trial court did not abuse its discretion in denying defendant\u2019s motions for a continuance when defendant\u2019s lead counsel failed to appear for trial where the lead counsel and co-counsel appeared at the calendar call on Monday; the trial court advised counsel that the case was subject to call for trial at any time during the session of court; after calendar call, defendant\u2019s lead counsel was advised that the case was likely to be reached during the week; on Tuesday the deputy clerk left messages for the lead counsel that the case would be tried at 2:00 p.m. that day and was informed that such counsel was in another county and would not return until late that day; the co-counsel moved for a continuance at the pretrial conference and renewed the motion at the beginning of the summary judgment hearing; after the trial court granted partial summary judgment for plaintiff and plaintiff presented evidence on damages, co-counsel asked for a continuance as to defendant\u2019s counterclaim on the ground that he was unable to go forward with evidence; there is nothing in the record to indicate that lead counsel requested to be excused in advance by the judge scheduled to hear the case or that he gave prior notice to plaintiff that he would not be prepared to try the case as calendared; and there is nothing in the record to indicate that defendant did not receive notice of the hearing. Rule 2(e), General Rules of Practice for the Superior and District Courts.\nAm Jur 2d, Continuance \u00a7 24.\n2. Attorneys at Law \u00a7 38 (NCI4th)\u2014 attorney\u2019s absence from trial \u2014 no withdrawal\nThe failure of defendant\u2019s lead counsel to appear for the trial did not constitute a withdrawal from the case so as to require the trial court to allow a continuance where such counsel continued to represent defendant and filed a motion on defendant\u2019s behalf to set aside the judgment.\nAm Jur 2d, Attorneys at Law \u00a7\u00a7 168-177.\nLegal malpractice in connection with attorney\u2019s withdrawal as counsel. 6 ALR4th 342.\nRights and duties of attorney in a criminal prosecution where client informs him of intention to present perjured testimony. 64 ALR3d 385.\n3. Rules of Civil Procedure \u00a7 56.4 (NCI3d)\u2014 absence of defendant\u2019s counsel from hearing \u2014 summary judgment for plaintiff not improper\nThe failure of defendant\u2019s lead counsel to appear at a summary judgment hearing did not affect the propriety of the summary judgment entered for plaintiff where defendant failed to respond to plaintiff\u2019s summary judgment motion or to present any materials opposing the motion, defendant\u2019s answer was not verified, plaintiff presented materials in support of the motion, and plaintiff was entitled to judgment as a matter of law.\nAm Jur 2d, Summary Judgment \u00a7 20.\n4. Jury \u00a7 12 (NCI4th)\u2014 waiver of jury trial \u2014 presumption of attorney\u2019s authority \u2014failure to rebut\nDefendant failed to rebut the presumption that his co-counsel had authority to waive a jury trial on the issue of damages where co-counsel\u2019s waiver of a jury trial was not cited as error in defendant\u2019s motion to set aside the judgment, and counsel failed to move to amend the record on appeal to include affidavits indicating that defendant desired a jury trial and did not consent to the waiver.\nAm Jur 2d, Jury \u00a7\u00a7 61 et seq.\nAppeal by defendant from order and judgment entered nunc pro tunc 26 February 1991 by Judge Judson D. DeRamus, Jr., in Forsyth County Superior Court. Heard in the' Court of Appeals 13- October 1992.\nDavis & Harwell, P.A., by Fred R. Harwell, Jr., for plaintiff appellee.\nHerman L. Stephens and Howard C. Jones, II, for defendant appellant." }, "file_name": "0352-01", "first_page_order": 380, "last_page_order": 388 }