Brown v. Rowe Chevrolet-Buick, Inc.

Court of Appeals of North Carolina

Brown v. Rowe Chevrolet-Buick, Inc.

357 S.E.2d 181, 86 N.C. App. 222, 1987 N.C. App. LEXIS 2682

CourtCourt of Appeals of North Carolina

DecidedJune 16, 1987

DocketNo. 8610SC1354

StatusPublished

Cited by4 cases

This text of 357 S.E.2d 181 (Brown v. Rowe Chevrolet-Buick, Inc.) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Brown v. Rowe Chevrolet-Buick, Inc., 357 S.E.2d 181, 86 N.C. App. 222, 1987 N.C. App. LEXIS 2682 (N.C. Ct. App. 1987).

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Opinion

WELLS, Judge.

Defendant’s sole argument on appeal is that the court erred in denying defendant’s request at the beginning of the trial for a [224]*224continuance. Rowe contends that it was not afforded a reasonable opportunity to retain the services of another attorney, having only been notified the afternoon before that its attorney was removed. We disagree.

N.C. Gen. Stat. § 1A-1, Rule 40(b) of the N.C. Rules of Civil Procedure provides:

(b) No continuance shall be granted except upon application to the court. A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require. Good cause for granting a continuance shall include those instances when a party to the proceeding, a witness, or counsel of record has an obligation of service to the State of North Carolina, including service as a member of the General Assembly.

Whether to grant a motion to continue is within the sound discretion of the trial court. Shankle v. Shankle, 289 N.C. 473, 223 S.E. 2d 380 (1985); Doby v. Lowder, 72 N.C. App. 22, 324 S.E. 2d 26 (1984). Where the attorney has given the movant no prior notice of intent to withdraw, the court has no discretion but must grant a reasonable continuance or deny motion to withdraw. Williams & Michael, P.A. v. Kennamer, 71 N.C. App. 215, 321 S.E. 2d 514 (1984). The general rule, however, is that the withdrawal of counsel on the eve of trial is not ipso facto grounds for continuance. Shankle v. Shankle, supra.

In the case at bar, the record contradicts Rowe’s contention that it had no notice of withdrawal of its counsel. Rivenbark and Kirkman’s response to plaintiffs’ motion establishes that the firm made efforts on Rowe’s behalf to secure other counsel as early as May 1986 but that Rowe never signed the documents or even responded to the firm’s inquiries. The trial court’s denial of a continuance was therefore a proper exercise of its discretion, and the judgment appealed from is

Affirmed.

Judges Arnold and ORR concur.

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WELLS, Judge.

Defendant’s sole argument on appeal is that the court erred in denying defendant’s request at the beginning of the trial for a [224]*224continuance. Rowe contends that it was not afforded a reasonable opportunity to retain the services of another attorney, having only been notified the afternoon before that its attorney was removed. We disagree.

N.C. Gen. Stat. § 1A-1, Rule 40(b) of the N.C. Rules of Civil Procedure provides:

(b) No continuance shall be granted except upon application to the court. A continuance may be granted only for good cause shown and upon such terms and conditions as justice may require. Good cause for granting a continuance shall include those instances when a party to the proceeding, a witness, or counsel of record has an obligation of service to the State of North Carolina, including service as a member of the General Assembly.

Whether to grant a motion to continue is within the sound discretion of the trial court. Shankle v. Shankle, 289 N.C. 473, 223 S.E. 2d 380 (1985); Doby v. Lowder, 72 N.C. App. 22, 324 S.E. 2d 26 (1984). Where the attorney has given the movant no prior notice of intent to withdraw, the court has no discretion but must grant a reasonable continuance or deny motion to withdraw. Williams & Michael, P.A. v. Kennamer, 71 N.C. App. 215, 321 S.E. 2d 514 (1984). The general rule, however, is that the withdrawal of counsel on the eve of trial is not ipso facto grounds for continuance. Shankle v. Shankle, supra.

In the case at bar, the record contradicts Rowe’s contention that it had no notice of withdrawal of its counsel. Rivenbark and Kirkman’s response to plaintiffs’ motion establishes that the firm made efforts on Rowe’s behalf to secure other counsel as early as May 1986 but that Rowe never signed the documents or even responded to the firm’s inquiries. The trial court’s denial of a continuance was therefore a proper exercise of its discretion, and the judgment appealed from is

Affirmed.

Judges Arnold and ORR concur.

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357 S.E.2d 181, 86 N.C. App. 222, 1987 N.C. App. LEXIS 2682, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-rowe-chevrolet-buick-inc-ncctapp-1987.

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