Garden v. Garden, 2D01-2736.
| Decision Date | 02 August 2002 |
| Docket Number | No. 2D01-2736.,2D01-2736. |
| Parties | Richard GARDEN, Appellant, v. Penny GARDEN, Appellee. |
| Court | Florida District Court of Appeals |
Virginia R. Vetter of Vetter & Hunter, Tampa, for Appellant.
John A. Colton of Burgess, Harrell, Mancuso, Olson & Colton, P.A., Sarasota, for Appellee.
In this appeal from a final judgment of dissolution of marriage, Richard Garden asserts the trial court erred by denying his request for a continuance, by permitting his counsel to withdraw immediately prior to the trial's commencement, and by assigning an inflated value to an asset acquired during the term of the marriage. Because we conclude that the trial court improperly permitted Mr. Garden's counsel to withdraw at the moment of trial, we reverse.
Penny Garden filed a petition for dissolution on November 8, 1999, after the parties had been married ten years. The case was first set for trial on February 20, 2001, but counsel for Mr. Garden filed a motion to withdraw from his representation on January 16, 2001, asserting that his client was no longer compensating him. That motion, however, was not noticed or set for hearing and counsel continued to represent Mr. Garden.
Following a stipulation the trial was continued and rescheduled for the week of April 23, 2001. However, on April 23, Mr. Garden's counsel filed a motion to continue the trial, asserting that he had received a fax from his client that morning indicating that business conflicts in Texas prevented Mr. Garden from attending the trial and that his absence had prevented his counsel from preparing for trial. The court denied Mr. Garden's motion to continue on April 24, 2001.
On that same date Mr. Garden's counsel noticed his motion to withdraw and scheduled it for hearing on April 26, 2001, at 9 a.m., but the notice did not specifically refer to the January motion to withdraw. The certificate of service stated that the motion to withdraw was mailed to Mr. Garden's Sarasota address.
The motion to withdraw was considered by the trial court immediately after the motion to continue had been denied. The transcript reflects the following:
After denying the motion to amend, the trial court granted the motion to withdraw.
First, we conclude that the trial court properly denied the motion for continuance and affirm on that ground. The second issue is whether the trial court erred by granting the motion to withdraw, which is a matter within the trial court's discretion.
Mr. Garden's counsel asserted different grounds for withdrawal in his written and oral motions. In writing counsel cited his client's alleged failure to compensate him for services rendered; orally, however, counsel alleged that his client failed to communicate with him and thus frustrated trial preparation. Neither ground is of consequence to our analysis, however, because specific rules of judicial administration govern the resolution of this appeal.
Florida Rule of Judicial Administration 2.060(i) establishes several requirements for obtaining court approval of a motion to withdraw:
An attorney shall not be permitted to withdraw from an action unless the withdrawal is approved by the court. The attorney shall file a motion for that purpose stating the reasons for withdrawal and the client's address. A copy of the motion shall be served on the client and adverse parties. The motion shall be set for hearing and notice of hearing shall be served on the client and adverse parties.
It is apparent that this rule imposes on counsel an obligation to set the motion for hearing, to provide proper notice, and to inform the client, opposing counsel, and the court of the reason for withdrawal. The notice requirement implicates due process concerns of notice and opportunity to be heard; obviously, then, the notice and motion must be timely and must afford the client an opportunity to respond.
The record in this case establishes that counsel failed to give Mr. Garden proper notice of his request to terminate representation. The notice of hearing reflects that notice was sent to Mr. Garden at a Sarasota business address at a...
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