Burns v Burns, (02-825) 07/15/2003

Appeal by defendant from order entered 26 February 2002 by Judge David K. Fox in District Court, Rutherford County. Heard in the Court of Appeals 20 February 2003.

Garland F. Byers, Jr., for plaintiff-appellee.

Jerry M. Trammell, for defendant-appellant.

    McGEE, Judge.

    In an action for divorce from bed and board, post-separation support and permanent alimony, Hazel Ezzell Burns (plaintiff) filed a motion in the cause on 28 January 2002 seeking, inter alia, to remove defendant's counsel of record. Plaintiff alleged that defendant's counsel had wrongfully placed an answer and counterclaim, which had not previously been filed or served, into the Court file while it was left unsecured and unattended in the courtroom. Plaintiff's motion was supported by four affidavits.
    The motion in the cause was set for hearing on 8 February 2002. Just prior to the hearing, defendant filed a motion for continuance "so that the Court may refer this matter to the North Carolina State Bar Ethics Committee for a full and completeinvestigation." The trial court heard arguments of the parties and considered both parties' motions. The trial court entered an order on 26 February 2002 directing that the allegations of ethical impropriety be heard by a judge from outside the 29th Judicial District, referring the matter to the Ethics Committee of the North Carolina State Bar, granting plaintiff's request to remove defendant's counsel, and continuing the family law hearing for 45 days to permit defendant to obtain other counsel to represent him. Defendant appeals the 26 February 2002 order removing his counsel of record.
    Although this appeal is interlocutory, immediate appeal lies from an order or judgment of the trial court which affects a substantial right. N.C. Gen. Stat. § 7A-27(d)(1) (2001). Our Supreme Court has held that removal of a party's counsel of choice affects a substantial right under this statute and is therefore immediately appealable. Goldston v. American Motors Corp., 326 N.C. 723, 727, 392 S.E.2d 735, 737 (1990). Defendant's appeal is therefore properly before this Court.
    Defendant assigned as error the trial court's finding of fact number 16 and the trial court's mandate number 4. However, defendant has not argued these two assignments of error and they are deemed abandoned. N.C.R. App. P. 28(b)(6).
    Defendant's only argument on appeal is that his due process rights were violated in removing his counsel of record, based solely on the allegations and affidavits presented by plaintiff. Defendant failed to object to removal of his counsel onconstitutional grounds before the trial court and he raises this constitutional argument for the first time on appeal. Constitutional arguments neither asserted, nor determined, in the trial court are not to be considered for the first time on appeal. State v. Deese, 136 N.C. App. 413, 420, 524 S.E.2d 381, 386, appeal dismissed and disc. review denied, 351 N.C. 476, 543 S.E.2d 499 (2000) (citing State v. Nobles, 350 N.C. 483, 515 S.E.2d 885 (1999); State v. Duncan, 75 N.C. App. 38, 330 S.E.2d 481, disc. review denied, 314 N.C. 544, 335 S.E.2d 317 (1985)).
    Defendant also failed to assign as error the unconstitutionality of the trial court's decision. "Generally, our review is also limited by properly presented assignments of error and exceptions." N.C. Dept. of Correction v. Hodge, 99 N.C. App. 602, 609, 394 S.E.2d 285, 289 (1990) (citing N.C.R. App. P. 10).
    N.C.R. App. P. 10(b)(1) also requires that a party "must have presented to the trial court a timely request, objection or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context." The record does not show that defendant ever gave the trial court an opportunity to rule on the issue of whether his counsel's removal was a violation of defendant's due process rights. Therefore, he may not now raise this issue on appeal. Buckingham v. Buckingham, 134 N.C. App. 82, 91, 516 S.E.2d 869, 876, disc. review denied, 351 N.C. 100, 540 S.E.2d 353 (1999); Hieb v. Lowery, 121 N.C. App. 33, 39, 464 S.E.2d 308, 312 (1995), aff'd, 344 N.C. 403, 474 S.E.2d 323 (1996).    Defendant's appeal is dismissed.
    Dismissed.
    Judges HUDSON and STEELMAN concur.
    Report per Rule 30(e).

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