Alexander v. Wilkerson

ARNOLD, Judge. Petitioner challenges the Department’s final decision on two grounds: (1) that the A.L.J. abused his discretion when he denied petitioner’s motion to continue and (2) that he abused his discretion by terminating the hearing and rendering a recommended decision without hearing the remainder of petitioner’s evidence. Presumably, petitioner believes his additional evidence would shift the weight of the evidence to his favor. The powers of an A.L.J. are outlined in The Administrative Procedure Act, N.C. Gen. Stat. § 150B-33 (1987), and in the Rules of the Office of Administrative Hearings, N.C. Admin. Code tit. 26, r. 03 (March 1990). An A.L.J. may “[rjegulate the course of the hearings, including discovery, [and] set the time and place for continued hearings . . . . ” G.S. § 150B-33(b)(4). “Requests for a continuance of a hearing shall be granted upon a showing of good cause.” 26 N.C.A.C. 03.0018(a). If insufficient time remains to conclude testimony at a hearing, additional testimony should be taken by deposition or a continuance granted “if it appears in the interest of justice that further testimony should be received.” 26 N.C.A.C. 03.0018(b). A motion for a continuance is addressed to the sound discretion of trial judges. Spence v. Jones, 83 N.C. App. 8, 348 S.E.2d 819 (1986). Continuances are not favored and the party seeking a continuance has the burden of showing sufficient grounds for it. Doby v. Lowder, 72 N.C. App. 22, 324 S.E.2d 26 (1984); see N.C. Gen. Stat. § 1A-1, Rule 40(b) (1983). Discretion of the trial judge in ruling on a motion for a continuance is not unlimited, but such a ruling is not reviewable absent manifest abuse of discretion. Spence, 83 N.C. App. 8, 348 S.E.2d 819. The Alexander Rest Home is approximately a twenty-five minute drive from where the hearing was held. Applicable regulations required that a SIC be at the rest home at all times. Petitioner testified that he moved for a continuance because he had to relieve the SIC then on duty no later than 5:45 p.m. that evening. Petitioner also stated that he had called all of his witnesses, but had “five or six other things to do.” The A.L.J. questioned the parties at the hearing to determine if a solution existed to the problem and discovered that petitioner’s college-age son could drive Mrs. Sprat, a qualified SIC, back to the rest home. Neither petitioner’s son nor Mrs. Sprat expressed any objection to this plan, but merely deferred to petitioner’s wishes. [343] Petitioner, however, refused this idea, saying that they had all come together and should all leave together. Petitioner also objected to Mrs. Sprat’s relieving the on-duty SIC on the ground that she was sick. But when asked by the A.L.J. if she would be willing to relieve the SIC, Mrs. Sprat did not state that she was too sick to work. She agreed to the plan “[i]f it’s agreeable with [the petitioner], since I work for him.” We hold that petitioner did not show good cause for his continuance motion. The A.L.J. made numerous findings of fact in his written order denying the motion, and those findings are supported by competent evidence in the record. There was no manifest abuse of discretion in the denial of petitioner’s motion. Affirmed. Judges LEWIS and DUNCAN concur.