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Daniel Boone Complex Inc. v. Furst

Filed: May 18, 1982.

DANIEL BOONE COMPLEX, INC., A NORTH CAROLINA CORPORATION, CAMILCO, INC., A VIRGINLA CORPORATION, CLARENCE A. MCGILLEN, JR., AND LINDA S. BROYHILL MCGILLEN
v.
MITCHELL FURST, INDIVIDUALLY, MITCHELL FURST, TRUSTEE AND MATTHEW MEZZANOTTE; MITCHELL FURST, TRUSTEE, PLAINTIFF V. CAMILCO, INC., AND CLARENCE A. MCGILLEN, JR,. DEFENDANTS; CAMILCO, INC., PLAINTIFF V. MITCHELL FURST, TRUSTEE, MITCHELL FURST, INDIVIDUALLY, MATTHEW N. MEZZANOTTE AND WIFE, GENEVIEVE D. MEZZANOTTE



Appeal from McKinnon, Judge, by those parties who were plaintiffs in cases 74CVS882 and 75CVS561 and who were defendants in case 74CVS889. Judgment entered 4 February 1981 in Superior Court, Orange County. Heard in the Court of Appeals 2 April 1982.

Wells, Judge. Judges Hill and Becton concur.

Wells

In their first assignment of error, plaintiffs contend the trial court erred in denying their motion to continue the case when it was called for the second trial. Defendant strongly resisted the motion when it was made to the trial court. G.S. 1A-1, Rule 40(b) of the Rules of Civil Procedure provides that continuances "may be granted only for good cause shown . . ". Upon a motion for continuance, which is addressed to the sound discretion of the trial judge, the burden is on the moving party to show the "good cause" required under the Rule. Shankle v. Shankle, 289 N.C. 473, 223 S.E.2d 380 (1976). The duty of the trial judge is to determine the motion as the rights of the parties require under the circumstances. Shankle, supra. The two grounds for continuance argued to the trial court were: (1) insufficient time for plaintiffs' counsel, Mr. Darsie, to prepare for trial of the case; and (2) plaintiffs' difficulties in obtaining the presence of a witness, Gant Redmon. It is not clear from the transcript of plaintiffs' argument to the trial court as to how much time plaintiffs' counsel might require for further trial preparation, but Mr. Darsie's remarks could be construed as asking the court for only two or three additional days. The record does disclose that by the time the case was called for trial, Mr. Darsie had been involved in the case for several weeks, and Mr. Cooper, plaintiffs' other counsel, had been involved in the litigation since its inception 7 years before, and

was present in court for the call of the case. Before ruling on the motion, Judge McKinnon reviewed these circumstances and reviewed with counsel their contentions as to the issues to be tried on remand. At this juncture, Mr. Darsie gave no indication of a lack of familiarity with or understanding of the issues in the case. Conversely, it was Mr. Darsie who argued as to the problems associated with the availability of the witness Redmon, which would permit the trial court to infer that Mr. Darsie was familiar with defendant's trial plans. Under these circumstances, we find that the trial court was clearly justified in finding no good cause in this aspect of defendant's motion.

The second ground for continuance argued to the trial court was that the requested delay was for only a day or two, so that Mr. Redmon might be rescheduled. In denying the motion, Judge McKinnon made it clear that if plaintiffs needed extra time in which to obtain Mr. Redmon's presence in court, he would accommodate them. The record does not show that Redmon was ever called at the second trial. This aspect of plaintiffs' argument on this assignment is clearly without merit. This assignment is overruled.*fn1

In their next assignment of error, plaintiffs contend that the trial court erred in failing to find that the usurious loan to plaintiff Camilco was induced by Mitchell Furst's misrepresentations, which were directed, authorized, and ratified by the Mezzanottes. To establish the appropriate framework for our disposition of this question, it is necessary to refer to the previous opinion of this Court in these cases, where we reversed the original judgment of the trial court on the question of fraud. We quote in pertinent part from Judge Erwin's opinion in 43 N.C. App.supra, at 103, 104, and 105:

The trial court found in its findings of fact that Furst had intentionally misrepresented the identity of his undisclosed principals, the Mezzanottes. In doing so, the trial court

focused on the Mezzanottes' reasons for not having their identity revealed; however, the court's crucial inquiry, as trier of fact, should have focused on what significance Furst's misrepresentation of the identity had on Camilco's execution of the Furst-Camilco loan.

[I]n the instant case, Camilco has presented evidence indicating that it would not have dealt with the Mezzanottes for various reasons. We hold that the trial court erred in not making any determination of fact on the existence of this requisite element of fraud.

[S]hould the court determine that the identity of the undisclosed lenders, the Mezzanottes, was essential to Camilco's execution of the loan and mortgage agreements, Camilco would be able to meet the requisite damage element of fraud. The execution of the loan and mortgage agreement with a party with whom it did not wish to deal would be sufficient injury.

[S]hould the trial court determine that Furst's fraudulent misrepresentation of the identity of his undisclosed principals induced Camilco to execute the loan and mortgage agreements, then Camilco would be ...


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