Benton v. Mintz

• Decision Date: 20 March 1990
• Docket Number: No. 8913SC488,8913SC488
• Citation: 97 N.C.App. 583,389 S.E.2d 410
• Court: North Carolina Court of Appeals
• Parties: Mildred Mintz BENTON and Husband, William E. Benton v. Joseph H. MINTZ.

Page 410

389 S.E.2d 410

97 N.C.App. 583

Mildred Mintz BENTON and Husband, William E. Benton v. Joseph H. MINTZ.

No. 8913SC488.

Court of Appeals of North Carolina.

March 20, 1990.

Shipman & Lea by Gary K. Shipman, Wilmington, for defendant-appellant.

GREENE, Judge.

This non-jury civil action arises from a complicated boundary dispute. The trial court entered judgment for the plaintiffs, and the defendant appeals.

The plaintiffs instituted this action on 20 December 1983. On 21 January 1987 Bruce H. Robinson entered an appearance on the defendant's behalf. On 8 April 1988 Mr. Robinson filed a "Motion to Withdraw" from representation of the defendant. On 17 May 1988 the defendant filed with the Clerk of Superior Court of Brunswick County a handwritten document entitled "Rejection of Motion to Withdraw of Defendant's Attorney Name Bruce H. Robinson." On the same day, the defendant filed with the Clerk a letter asking the Clerk to inform the defendant personally of the date for which trial of the civil action 83CVD648 would be scheduled. On 6 September 1988 the calendar scheduling the trial for 3 October 1988 was issued. On 9 September 1988 Mr. Robinson filed and sent to defendant a Notice of Hearing which read as follows:

PLEASE TAKE NOTICE that the undersigned will bring the above entitled matter for hearing before the District Court [sic] in Brunswick County, Bolivia, North Carolina, on the 3rd day of October, 1988, at 10 A.M. or as soon thereafter as counsel may be heard, for the purpose of determining whether Bruce H. Robinson, Jr. will be permitted to withdraw as counsel for defendant in the above captioned case. [Emphasis added.]

On 30 September 1988 the defendant filed with the Clerk of Superior Court a copy of a letter sent by defendant to Mr. Robinson on 29 September 1988. That letter read in part:

When I received the notice of the hearing for October 3, 1988 from you to attend District Court I had upon receiving such no true call or need to be there and document didn't call for me to attend any other court at that time set date, Oct. 3, 1988. I have business commitments that were made that must be fullfilled for two weeks on or mabe [sic] a little longer.

Sir if you want another type court you should schedule for another session of that court later on, then you can say your wishes.

On 3 October 1988 a hearing was conducted to rule on Mr. Robinson's "Motion to Withdraw." At the beginning of this proceeding, the defendant announced "I'm representing myself." Upon the court's questioning as to whether the defendant was releasing his lawyer, Mr. Mintz replied "Not until he's been checked out with what evidence I've got, and I want it done by the Grand Jury." The defendant later stated that Mr. Robinson "shouldn't get out of the case until I find more on him, what he has done to me in this case." The defendant continued, stating "he [Mr. Robinson] shouldn't get out without me getting my money back."

Mr. Robinson asked to be excused from representing the defendant because no "valid attorney/client relationship" existed. He further stated that he had to withdraw because the defendant refused to pay a surveyor, who was hired by Mr. Robinson to prepare for the litigation.

The trial court found "that the relationship of attorney and client is no longer possible between Mr. Robinson and the Defendant; that the Defendant has no confidence in the representation of Mr. Robinson and has, in fact asked the Court to have Mr. Robinson and various surveyors investigated by the Grand Jury." The trial court concluded "that there can be no attorney/client relationship between Mr. Robinson and the defendant." Therefore the trial court allowed Mr. Robinson's Motion for Withdrawal and ordered him removed as counsel for the defendant.

During the special proceeding, the trial court, after announcing that it was inclined to grant Mr. Robinson's "Motion to Withdraw," stated that the case was thus ready for trial. The defendant responded that he needed to gather his witnesses. The defendant stated "I understood this case wasn't going to be tried, but just for my lawyer to get out." After further discussion, the court stated that "the case is not going to be continued." The defendant responded "Judge, Your Honor, is there anyway I can get it [the trial] tomorrow, so I can pick up my witnesses? I thought he [Mr. Robinson] was just going to sign out. I had no indication it was going to be tried." The trial court refused to continue the case even though Mr. Robinson verified that he had probably put his ex-client under the impression that only the motion to withdraw would be heard that day. Upon the trial court's insistence that the trial commence that afternoon, Mr. Mintz stated "Well, one of my witnesses is in the rest home at Wrightsville Beach. I need to get some kind of papers fixed on him." The defendant again asked to delay the trial, but the trial court refused.

The trial commenced that afternoon with the defendant representing himself, and Mr. Stephen Yount, Esquire, representing the plaintiffs. At trial, complicated legal issues arose concerning technical evidentiary rules, res judicata and civil procedure. The trial court entered judgment against the defendant.

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The issues presented are: I) whether the trial court abused its discretion in granting Mr. Robinson's motion to withdraw; and II) whether the trial court erred in failing to grant the defendant's motion for a continuance.

I

The defendant argues that the trial court abused its discretion in allowing Mr. Robinson to withdraw as counsel on the day of trial. Withdrawal of appearance by an attorney is governed by Superior and District Courts Rule 16 which states in pertinent part:

No attorney who has entered an appearance in any civil action shall withdraw his appearance, or have it stricken from the record, except on order of the court. Once a client has employed an attorney who has entered a formal appearance, the attorney may not withdraw or abandon the case without (1) justifiable cause, (2) reasonable notice to the client, and (3) the permission of the court.

The record shows that Mr. Robinson had entered a formal appearance; thus we must determine whether the three-part test of Rule 16 has been met.

The determination of counsel's motion to withdraw is within the discretion of the trial court, and thus we can reverse the trial court's decision only for abuse of discretion. See Brown v. Rowe Chevrolet-Buick, Inc., 86 N.C.App. 222, 357 S.E.2d 181 (1987) (court lacks discretion and must grant continuance where attorney has given no prior notice of withdrawal). The defendant apparently does not dispute on appeal that Mr. Robinson presented to the court evidence of a justifiable cause for his withdrawal. Nonetheless we note that the dissolution of the attorney/client relationship as well as the defendant's reputed unwillingness to pay surveyors hired pursuant to litigation preparation, constitute justifiable cause for Mr. Robinson's withdrawal. We have no hesitation in so concluding since the record shows the defendant apparently did not actually want Mr. Robinson to continue representing him. Rather the defendant's statements to the court indicated the defendant wanted Mr. Robinson to remain part of the action to allow the court or a "Grand Jury" to investigate some alleged misdealings of Mr. Robinson toward the defendant. Mr. Robinson also provided reasonable notice to his client by filing a motion to withdraw some five months prior to trial which motion the defendant received. Mr. Robinson filed with the superior court and sent to the defendant notice of the hearing to determine the "Motion to Withdraw" about three weeks prior to the hearing. Lastly, the trial court granted Mr. Robinson's motion for withdrawal and ordered said...