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
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. Steven 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.
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 Court 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.,
II
The defendant next argues that the trial court erred in failing to grant the defendant a continuance after having allowed withdrawal of defendant’s counsel. “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.” N.C.G.S. § 1A-1, Rule 40(b) (1983). “[A]n attorney’s withdrawal on the eve of the trial of a civil case is not
ipso facto
grounds for a continuance.”
Shankle v. Shankle,
An unrepresented party’s failure to formally request a continuance does not preclude review of this issue.
Underwood v. Williams,
During the special proceeding Mr. Robinson verified that he had likely misled his client as to the nature of the 3 October proceedings. The record contains no indication that the defendant knew or should have known of the trial. Furthermore, the defendant made a notable layman’s attempt to keep informed as of the trial date. On 17 May 1988, shortly after learning of his counsel’s desire to withdraw, the defendant filed with the superior court clerk a request to be personally informed should his case be scheduled on a court calendar. Under these circumstances, the counsel’s apparent failure to inform the defendant of the pending trial should not be attributable to the defendant.
See Barclays American Corp. v. Howell,
Furthermore, the defendant informed the trial court that he would have difficulty procuring his witnesses on such short notice. The defendant requested the trial court to put off the trial until the next day or the next week to allow him to gather
“A fundamental element of due process is adequate and reasonable notice appropriate to the nature of the hearing. Such notice involves a reasonable time for preparation.”
Lowe v. City of Arlington,
We also note that reversal of the trial court’s refusal to grant a continuance “is especially warranted when nothing in the case indicates that the movant’s purpose for the motion is to delay or evade trial.”
Mills v. Mills,
New trial.