65 N.C. App. 404 | N.C. Ct. App. | 1983
In her first argument, respondent contends the court erred in denying her motion to continue, thereby forcing her to proceed to trial without counsel. The evidence shows respondent was without counsel from 6 July 1982 until 27 July 1982 and had unsuccessfully attempted to obtain an attorney in the interim. In support of her motion for continuance, respondent offered a letter from her physician that was almost four weeks old.
It is well established that a motion for continuance is addressed to the sound discretion of the trial court, and its ruling thereon will not be disturbed in the absence of a manifest abuse of discretion. In re Coley, 53 N.C. App. 318, 280 S.E. 2d 770 (1981). “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, 223 S.E. 2d 380 (1976).
Respondent relies almost entirely on the case of Shankle v. Shankle, supra, however the facts of that case are clearly distinguishable. In Shankle, respondents’ counsel withdrew from the case and departed from the courtroom on the day of the trial. Respondents had no way of knowing this was going to happen and were faced with circumstances beyond their control. The court held respondents were entitled to a continuance and ordered the cause remanded for a new trial.
In contrast, the record in the present case discloses that three weeks before the ultimate trial date, respondent chose to allow her attorney of record to withdraw so that she could find more suitable counsel. At the time respondent’s counsel was allowed to withdraw, it was indicated to the court that respondent had already been in contact with other attorneys. Respondent
Furthermore, the fact that petitioner had a pending motion for leave to amend his answer to the counterclaim at the time the motion for continuance was denied does not compel us to find an abuse of discretion. The amendment contained no allegations of fact and did not set up a new cause of action but merely set forth a further defense based upon matters already in the pleadings. The motion for leave to amend was filed 1 July 1982; therefore, respondent was given sufficient time to prepare a response to the proposed amendment.
Secondly, respondent argues the court erred in denying her a jury trial on her equitable defenses and counterclaims. The record shows respondent did not make a timely demand for trial by jury pursuant to Rule 38 of the North Carolina Rules of Civil Procedure. By failing to demand such a trial in accordance with Rule 38, respondent waived her right to a jury trial. Sykes v. Belk, 278 N.C. 106, 179 S.E. 2d 439 (1971).
Assuming arguendo that respondent made a timely request for a jury trial with respect to petitioner’s amendment, she would only have been entitled to a jury trial on the issue of the statute of limitations. Since this case was not decided on the issue of the statute of limitations, the refusal to grant a jury trial on such issue was harmless error.
In her third argument, respondent contends the court erred in excluding evidence which would have shown that petitioner was equitably estopped from seeking to partition the property in question. To estop a co-tenant from partitioning a piece of property, there must be an express or implied contract or agreement waiving the right to partition. Kayann Properties, Inc. v. Cox, 268 N.C. 14, 149 S.E. 2d 553 (1966). In the present case, there is no evidence of any such agreement or contract between the parties, nor is there any indication in the record that any evidence was excluded which tended to show such an agreement. The order of the trial court is