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An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure.
NORTH CAROLINA COURT OF APPEALS
Filed: 2 October 2007
STEVE STEEN, SHANTEL
CALONAHESKIE, DONNA STEEN,
ROY GUTRIDGE and SCOTT GUTRIDGE,
v. Jackson County
No. 05 CVS 597
CRAIG KENNEDY and LISA KENNEDY,
Individually and D/B/A FAR NORTH
HOMES, and CRAIG KENNEDY, BUILDER
Appeal by defendants from order and judgment entered 28
September 2006 by Judge Timothy S. Kincaid in Jackson County
Superior Court. Heard in the Court of Appeals 19 September 2007.
Michael G. Wimer, for plaintiffs-appellees.
McGuire, Wood & Bissette, P.A., by Grant B. Osborne and Mary
E. Euler, for defendants-appellants.
Craig Kennedy (Craig) and Lisa Kennedy (Lisa),
individually, and doing business as Far North Homes, and Craig
Kennedy, Builder Inc. (collectively, defendants) appeal from
order denying defendants' motion to continue and granting Steve
Steen, Shantel Calonaheskie, Donna Steen, Roy Gutridge, and Scott
Gutridge's (collectively, plaintiffs) motion to enforce the
parties' settlement agreement. Defendants also appeal from final
judgment entered enforcing the settlement agreement, wherein
defendants agreed to pay plaintiffs $45,000.00. We affirm.
Plaintiffs filed their original complaint on 26 August 2005
alleging violations of State and Federal wage laws. On 2 August
2006, plaintiffs amended a notice of hearing on a pending motion
for summary judgment. Prior to the summary judgment hearing set
for 5 September 2006, plaintiffs filed motions for contempt and
enforcement of the parties' settlement agreement.
Evidence presented at the 5 September 2006 hearing tended to
show that from 8 August 2006 to 14 August 2006, plaintiffs'
counsel, Michael Wimer, Esq. (Wimer), and defendants' initial
counsel, Leonard Baer, Esq. (Baer), negotiated and entered into
a settlement agreement. Represented by new counsel at the hearing,
defendants argued Baer did not have authority to enter into a
settlement agreement. The trial court entered an order denying
defendants' motion to continue and found Baer had authority to
enter into a settlement agreement with plaintiffs' counsel. The
trial court also entered a final judgment finding and concluding
defendants had entered into a binding agreement and ordered them to
pay plaintiffs $45,000.00. Defendants appeal.
Defendants argue the trial court erred by: (1) denying their
motion to continue; (2) relying on unsworn testimony to determine
their counsel had authority to enter the settlement agreement; and
(3) enforcing the settlement agreement entered into by the parties'
III. Motion to Continue
Defendants argue the trial court abused its discretion by
denying their motion to continue. We disagree.
A. Standard of Review
On appeal, the standard of review for the denial of a motion
to continue is whether the trial court abused its discretion.
Morin v. Sharp, 144 N.C. App. 369, 373, 549 S.E.2d 871, 873, disc.
rev. denied, 354 N.C. 219, 557 S.E.2d 531 (2001). A denial of a
motion to continue will not be overturned absent a showing that
the decision was so arbitrary that it could not have been the
result of a reasoned decision. N.C. State Bar v. McLaurin, 169
N.C. App. 144, 148, 609 S.E.2d 491, 494 (2005) (citing May v. City
of Durham, 136 N.C. App. 578, 581-82, 525 S.E.2d 223, 227 (2000)).
Defendants assert their present counsel was initially
consulted and agreed to be retained on 28 August 2006. The motion
hearing was held on 5 September 2006. Defendants argue their
counsel did not have  the opportunity to investigate the merit,
or lack of merit, of [p]laintiffs' allegations as set forth in the
pending motions and could not have properly defend[ed] the
motions. We disagree.
Evidence shows defendants' counsel was aware that motions were
scheduled to be heard on 5 September 2006 prior to accepting the
case. Defendants' counsel had a full business week to prepare for
the hearing on pending motions. When viewed in conjunction with
the timeline of this case, defendants have failed to show that the
denial of their motion to continue was so arbitrary that it couldnot have been the result of a reasoned decision. Id. This
assignment of error is overruled.
IV. Unsworn Testimony of Plaintiffs' Attorney
Defendants argue the trial court erred in relying on the
unsworn testimony of plaintiffs' counsel to determine whether
defendants' counsel had authority to enter into the settlement
agreement. We dismiss this assignment of error for violation of
Rule 28(b)(6) of the North Carolina Rules of Appellate Procedure.
Under Appellate Rule 28(b)(6), [a]ssignments of error not set
out in the appellant's brief, or in support of which no reason or
argument is stated or authority cited, will be taken as abandoned.
N.C.R. App. P. 28(b)(6) (2007); see N.C. State Bar v. Gilbert, 151
N.C. App. 299, 308, 566 S.E.2d 685, 690 (2002), aff'd, 357 N.C.
502, 586 S.E.2d 89 (2003) (Assignments of error which are not
supported by reason or legal argument in the appellant's brief are
deemed abandoned.). The body of the argument shall contain
citations of the authorities upon which the appellant relies. Id.
It is not the responsibility of the appellate court to supplement
an appellant's brief with legal authority. Goodson v. P.H.
Glatfelter Co., 171 N.C. App. 596, 606, 615 S.E.2d 350, 358, disc.
rev. denied, 360 N.C. 63, 623 S.E.2d 582 (2005).
Defendants failed to cite any legal authority for the notion
that the trial court may not consider statements made by counsel at
trial as true. We note counsel took a solemn oath to be admitted
to the practice of law, is an officer of the court, and is
ethically bound to be truthful. North Carolina State Bar Rules ofProfessional Conduct, Rule 0.1(1) and Rule 3.3(a)(1) (2007). This
assignment of error is abandoned under Appellate Rule 28(b)(6) for
lack of legal argument and authority.
V. Enforcement of the Settlement Agreement
Defendants argue the trial court erred in enforcing the
settlement agreement entered into by the parties' counsel because
defendants' counsel lacked authority to enter into the agreement
and because of the absence of mutual assent between the parties.
A. Standard of Review
Where no exceptions have been taken to the findings of fact,
such findings are presumed to be supported by competent evidence on
appeal. Rural Plumbing & Heating, Inc. v. Hope Dale Realty, Inc.,
263 N.C. 641, 651, 140 S.E.2d 330, 337 (1965). An exception to the
judgment itself does not preserve for review the findings of fact
or the sufficiency of the evidence to support them. Id. When an
appellant fails to assign error to specific findings of fact, those
findings of fact become binding and the only issue on appeal is
whether the findings of fact support the trial court's conclusions
of law and judgment, and whether error of law appears on the face
of the record. Id.; King v. Owen, 166 N.C. App. 246, 248, 601
S.E.2d 326, 327 (2004).
Defendants do not specifically assign error to any of the
trial court's findings of fact or conclusions of law. Defendants
merely contend that the trial court erred by granting plaintiffs'motion to enforce the settlement agreement following the 5
September 2006 hearing. We are limited to determining whether the
findings of fact support the trial court's conclusions of law and
judgment, and whether error of law appears on the face of the
record. Rural Plumbing & Heating, Inc., 263 N.C. at 651, 140
S.E.2d at 337.
The trial court found and concluded as a matter of law, inter
alia, that: (1) it is presumed that an attorney has authority to
act for a client that he professes to represent; (2) Baer was
attorney of record for defendants; (3) Baer had actual or apparent
authority to settle the case for less than $50,000.00; (4) any lack
of authority that Baer may or may not had was never communicated to
plaintiffs; (5) defendants failed to rebut the presumption that
Baer had actual or apparent authority to settle the case; (6) the
offer to settle for $45,000.00, to be paid on or before 21 August
2006, was accepted by defendants' counsel; and (7) the parties only
reached an agreement concerning the amount of the settlement and
payment deadline. The trial court granted plaintiffs' motion to
enforce the settlement agreement of $45,000.00 to have been paid by
21 August 2006.
In support of the trial court's conclusions of law and
judgment, the trial court made numerous findings of fact:
[D]efendants engaged . . . Baer as attorney of
record in this action to defend the individual
defendants, as well as the corporate
In preparation for depositions on August 7th
of 2006, settlement discussions between 
Baer and the defendants began at his office.At that time  Baer encouraged  defendants
to settle this case. [D]efendants told  Baer
. . . See what you can do for less than
$50,000 . . . .
. . . .
After leaving  Baer's office, [Craig] had
second thoughts about the authorization and
sent an e-mail at 12:06 in the morning to 
Baer indicating that he did not want to settle
for $50,000 and that his wife wasn't happy
[Craig] is familiar with certain legal terms
as asked by his attorney such as deposition,
interrogatories, requests for admissions and
discovery, and [Lisa] is a certified public
accountant and an attorney.
On August 8th of 2006, plaintiff's counsel
sent by electronic mail to  Baer two options
to settle the case denominated as Option A and
Option B. Option A was the payment of $45,000
on or before August 21st of 2006.
Prior to plaintiff's counsel sending this e-
mail,  Baer responded to [Craig] basically
encouraging him . . . to proceed with the
settlement. [Lisa] at 11:07 A.M. on August
8th sent  Baer an e-mail stating that she
would not support [Craig's] pro se
representation, that he was unhappy, but . . .
We must proceed with the settlement, . . . .
Then asked  Baer, Any luck contacting
On August 8th of 2006 at 11:16 A.M.,  Baer
sent another e-mail to [Lisa] stating that he
renegotiated the settlement, and if we can
make payment by the 21st the deal was $45,000.
On August 9th, 2006, at 10:17 A.M.,  Baer
responded to  Wimer's offer saying, we will
accept 45 as the settlement. I will check
with the client as to the exact date they can
send the money for deposit to my trust
account. You can begin preparing the
On August 10th of 2006,  Baer e-mailed
counsel for plaintiffs again stating, Myclients are reviewing the agreement - this is
Prior to sending this e-mail,  Baer received
from [Lisa] an e-mail on August 9th at 8:53
stating that she had scanned it, and the court
infers that this is the settlement draft, and
stated it looks okay except on the signature
page and corrected the entity titles.
. . . .
On August 10th of 2006 at 8:50 P.M., [Lisa]
sent an e-mail to  Baer setting forth an
inquiry about a covenant not to sue and
proposed language concerning that.
. . . .
Then around August 15th, [Craig] sent e-mails
to  Baer saying that we should settle this
case for less or try it or perhaps conference
with a labor lawyer. He stated in that e-
mail, I know this is a last-minute turn. I
think the $45,000 is starting to make Lisa
mad, and it always made me upset. I haven't
stopped thinking about how much money that is,
even after I agreed to do it.
We hold the trial court's findings of fact support its
conclusions of law and judgment. We also hold that no error of law
appears on the face of the record. Id. This assignment of error
Defendants have failed to show the trial court abused its
discretion when it denied their motion to continue. Defendants'
counsel was aware of the previously set hearing date when he
accepted representation and entered an appearance. Defendants
second assignment of error is deemed abandoned in accordance with
Appellate Rule 28(b)(6). The trial court's unchallenged findings
of fact support its conclusions of law and judgment. No error oflaw is apparent in the record. Id
. The trial court's order and
final judgment are affirmed.
Judges MCGEE and ELMORE concur.
Report per Rule 30(e).
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