Snover v. Grabenstein

417 S.E.2d 284, 106 N.C. App. 453, 1992 N.C. App. LEXIS 536
CourtCourt of Appeals of North Carolina
DecidedJune 16, 1992
DocketNo. 915SC567
StatusPublished
Cited by4 cases

This text of 417 S.E.2d 284 (Snover v. Grabenstein) 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.

Bluebook
Snover v. Grabenstein, 417 S.E.2d 284, 106 N.C. App. 453, 1992 N.C. App. LEXIS 536 (N.C. Ct. App. 1992).

Opinion

WALKER, Judge.

Defendant first assigns as error the trial court’s decision to grant the motion for withdrawal of defendant’s co-counsel on the second full day of trial and without prior notice to defendant of counsel’s intent to withdraw. Rule 16 of the General Rules of Practice for the Superior and District Courts, which codified the holding in Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965), provides:

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.

In the case before us defendant alleges she received no notice by Mr. Moore of his intent to withdraw as her attorney prior to doing so. Instead, immediately preceding the afternoon proceedings on the second day, Mr. Moore offered the following explanation in support of his motion:

It was called to my attention today at the break for lunch that in 1983, my partner, who was then my law partner, . . . certified title to one of the lots in this subdivision to one of the witnesses and one of the parties. ... I have checked and it is true that at that time, he and I were in partnership. It’s probably my fault that I did not check more carefully and remember that, of course, as we had then associated during those years and that titles were done by the partnership. Although I didn’t actually do the title or sign the certificate, Your Honor, I feel that it would be highly improper or certainly be a conflict and very likely, could be unethical for me to continue to appear in this case and for that reason, I move that I be allowed to withdraw.

The trial court thereby found:

Based upon statements of counsel, the Court does find that its continuing appearance at the trial of this matter would put him in a position that he would be taking a position adverse to the interest of a former client in respect to the subject matter of representation of that client and the Court concurs [457]*457that such would be improper and would represent a conflict of interest, and therefore, accordingly grants the motion.

Despite the absence of prior notice, we hold that the trial court did not commit reversible error in granting the motion for withdrawal because defendant was not prejudiced thereby. Our holding is limited to the facts of this case, however, and should not be construed as allowing the notice requirement of Rule 16 to be waived where no apparent prejudice results to the client. Here, Mr. Peterson had been involved since the inception of the action as lead counsel and Mr. Moore was co-counsel. There is nothing in the record to indicate Mr. Peterson was not capable of adequately representing defendant’s interests and continuing the litigation by himself. Two cases from this Court cited by defendant, Williams and Michael, P.A. v. Kennamer, 71 N.C.App. 215, 321 S.E.2d 514 (1984) and Underwood v. Williams, 69 N.C.App. 171, 316 S.E.2d 342 (1984), are not dispositive, as both of those cases resulted in a previously represented party being left without counsel when such counsel was allowed to withdraw without prior notice. Underwood is further distinguishable in that the trial court entered summary judgment against the party at the same time his counsel was allowed to withdraw. In the instant case, defendant has not shown herself to have been prejudiced as a result of the withdrawal.

Defendant’s second assignment of error asserts that, upon allowing counsel’s motion to withdraw, the trial court erred in denying defendant’s motion for a continuance. In Williams and Michael, P.A. v. Kennamer at 217, 321 S.E.2d at 516, this Court stated:

Where an attorney has given his client no prior notice of an intent to withdraw, the trial judge has no discretion. The Court must grant the party affected a reasonable continuance or deny the attorney’s motion for withdrawal.

Since defendant did not receive prior notice of Mr. Moore’s intent to withdraw, she argues the court erred in not granting a continuance which was clearly mandated under the circumstances of this case. She contends the recess taken by the court was not reasonable and that she was prejudiced by having to proceed with trial, especially since Mr. Moore had been the primary participant in the trial prior to his withdrawal. (Mr. Moore had made ten objections and had undertaken the sole cross-examination of four of six witnesses.)

[458]*458On Tuesday afternoon after the court allowed Mr. Moore to withdraw, defendant made a motion to continue “the remaining testimony in this case until a time in the future at which Mr. and Mrs. Grabenstein may have the opportunity to assess their counsel and see whether they wish to hire additional counsel as they did with Mr. Moore.” The court granted the motion “to the extent that this matter is to be continued no later than this coming Thursday morning at 9:30, in order to give the Respondents an opportunity, if they desire to do so, to hire counsel to assist Mr. Peterson and also to give Mr. Peterson an opportunity to re-examine his case in light of the potential, in light of the possibility that he will have to represent his clients alone.”

However, when court commenced on Thursday morning, 26 July 1990, at 9:30, there was no mention of additional counsel by defendant, any further motion for continuance, or any other showing by defendant that Mr. Peterson was not prepared to proceed with the remainder of the trial.

In Williams and Michael, P.A. v. Kennamer, supra, the trial court granted the motion of defendant’s counsel to withdraw and set trial for two days later. Defendant was not present for the motion and had not received prior notice of her counsel’s intent to withdraw. She subsequently appeared and attempted to represent herself at trial, stating that she had not received notice of the trial or of her counsel’s withdrawal until the previous day. In vacating the judgment and remanding for new trial this Court stated:

It is indisputable that defendant was prejudiced by the Court’s actions. Defendant is an elderly woman and is in poor health. At trial, she had difficulty in speaking and in following the simple instructions of Judge Brown. A one or two day period was insufficient time for her to either prepare her own defense or acquire alternative representation.

Id. at 217, 321 S.E.2d at 516.

Defendant asserts the foregoing case as support for her position that the recess by the court was insufficient. In the case before us, however, Mr. Peterson was actively involved from the beginning, was the sole signer of the pleadings and other documents, and was defendant’s only attorney of record. Under all of these circumstances we cannot conclude the recess was unreasonable [459]*459since it appears Mr. Peterson was amply suited to represent defendant’s interests during the remainder of the trial. See also Gillis v. Whitley’s Discount Auto Sales, Inc., 70 N.C.App.

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Cite This Page — Counsel Stack

Bluebook (online)
417 S.E.2d 284, 106 N.C. App. 453, 1992 N.C. App. LEXIS 536, Counsel Stack Legal Research, https://law.counselstack.com/opinion/snover-v-grabenstein-ncctapp-1992.