James Prince, D/B/A/ Big Jim, Inc. v. Charles Campbell, Individually and D/B/A Limosines by K.C. ( 1999 )

IN THE COURT OF APPEALS OF TENNESSEE
AT NASHVILLE
FL E
I D
______________________________________________
JAMES PRINCE, d/b/a
BIG JIM, INC.,
F e b ru a ry 5 , 1 9 9 9
Plaintiff-Appellee, Marshall Circuit No. 12638
C e c il W . C r o w s o n
Vs. C.A. No. 01A01-9806-CV-00276l e r k
A p p e lla te C o u r t C
CHARLES CAMPBELL, Individually
and d/b/a LIMOUSINES BY KC,
Defendant-Appellant.
____________________________________________________________________________
FROM THE MARSHALL COUNTY CIRCUIT COURT
THE HONORABLE LEE RUSSELL, JUDGE
L. Bruce Peden of Columbia
For Appellee
Keith Jordan of Nashville
For Appellant
VACATED AND REMANDED
Opinion filed:
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
ALAN E. HIGHERS, JUDGE
DAVID R. FARMER, JUDGE
This appeal involves a motion to set aside a judgment. Defendant/cross-plaintiff, Charles
Campbell (Campbell), appeals the judgment of the trial court awarding money damages to
plaintiff/cross-defendant, James Prince (Prince).
This case arose from a contract entered into between the parties in April 1995 in which
Campbell agreed to transfer a limousine from his business to Prince in exchange for the
opportunity to run Prince’s “World Famous Stagecoach Lounge.” Prince filed suit against
Campbell for breach of contract and fraud in August 1995 alleging that Campbell failed to make
lease payments on the property and refused to transfer the limousine agreed upon in the contract.
Campbell’s answer denied the material allegations and asserted a counterclaim for conversion,
fraud, and breach of contract.
After more than a year, Prince filed a motion to set the case for trial, and the case was set
for a non-jury trial on January 23, 1998. On January 9, 1998, Campbell’s attorney, James Lewis
(Lewis), filed a motion to withdraw. In pertinent part the motion states:
Comes now James Bryan Lewis, attorney for Defendant
Charles Campbell and moves this honorable Court to be allowed
to withdraw from the above-styled matter. In support of this
Motion, counsel would state that Defendant failed to
communicate and cooperate with counsel. A trial is set in this
matter for January 23, 1998. As of January 8, 1998, Defendant
had not contacted counsel concerning either the trial or for
deposition preparation. Counsel also represents Defendant in
another case and Defendant has failed to respond to counsel’s
requests to produce discovery and has failed to address a Motion
to Compel and for Sanctions. Based on Defendant’s conduct in
this case and the other case, counsel is unable to continue his
representation of Defendant.
Lewis certified that a copy of this motion was mailed to Campbell on January 8, 1998.
On January 16, the trial court held a hearing on the motion to withdraw. The judge ruled from
the bench that Campbell’s counsel could withdraw, but the trial was scheduled for January 23,
1998. On January 16, Lewis sent Campbell the proposed order to withdraw which clearly stated
that the trial was set for January 23. However, at oral argument before this Court, Campbell’s
counsel, while admitting Campbell received this letter, stated that his client failed to open it.
The order granting the motion to withdraw was entered January 23, 1998. This same day,
the case was tried without the presence of Campbell, and the court, after considering the sworn
testimony of Prince and the record as a whole, rendered a judgment for Prince and awarded
$77,0001 as damages.
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The day of trial, Prince filed a motion to amend the complaint to reduce the amount
requested as damages from $97,000 to $77,000. There is no record as to the trial court’s action
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After being served with the judgment in this case, Campbell obtained new counsel and
on February 10, 1998, he filed a motion to set aside the January 23 judgment. Along with the
motion, Campbell filed his own affidavit which in pertinent part states:
3. In February 1997, Mr. James Bryan Lewis was substituted for
Mr. March as my attorney. Mr. Lewis also represented me in
other matters unrelated to the dispute which is involved in this
litigation.
4. In part because of perceived problems with his representation
in these other matters, Mr. Lewis informed me that he was
requesting this Court to withdraw as my attorney in this case, as
well.
5. I was left with the impression that I would have a reasonably
short time after Mr. Lewis’ withdrawal to find new counsel, and
initiated steps to secure representation.
6. Before I could locate and retain an attorney, I was sent a copy
of the Judgment, which was entered one week after my prior
lawyer withdrew from the case.
After a hearing on March 13, 1998, the trial court denied the motion to set aside the
judgment, and Campbell appeals this order. The only issue presented for review is whether the
trial court erred in overruling the Rule 60.02 motion to set aside the judgment. We note that the
motion was filed and served within 30 days of the entry of the judgment and should be deemed
a Tenn.R.Civ.P. 59 motion which can afford relief from a judgment because of mistake,
inadvertence, surprise, or excusable neglect. Henson v. Diehl, 674 S.W.2d 307 (Tenn. App.
1984) (citing Campbell v. Archer, 555 Tenn. 110 (Tenn. 1979)).
A motion to set aside a judgment is addressed to the sound discretion of the trial court.
Henson, 674 S.W.2d at 310. The reviewing court's scope of review of the trial court's action in
denying the extraordinary relief sought is limited to whether the trial court abused its discretion.
See Travis v. City of Murfreesboro, 686 S.W.2d 68 (Tenn. 1985).
To determine whether Campbell should be afforded relief because of mistake,
inadvertence, surprise or excusable neglect, we must look to the circumstances of his counsel’s
withdrawal.
We first examine the Code of Professional Responsibility regulating the practice of law
as adopted by our Supreme Court. Rule 8, Rules of the Supreme Court. DR 2-110 provides in
regarding this motion, but the damages awarded seem to mirror those in the proposed amended
complaint.
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part pertinent to this case:
DR 2-110. Withdrawal from Employment. - (A) In general.
(1) If permission for withdrawal from employment is required by
the rules of a tribunal, a lawyer shall not withdraw from
employment in a proceeding before that tribunal without its
permission.
(2) In any event, a lawyer shall not withdraw from employment
until the lawyer has taken reasonable steps to avoid foreseeable
prejudice to the rights of the client, including giving due notice to
the client, allowing time for employment of other counsel,
delivering to the client all papers and property to which the client
is entitled, and complying with applicable laws and rules.
* * *
(C) Permissive withdrawal.
If DR 2-110(B) is not applicable, a lawyer may not request
permission to withdrawal in matters pending before a tribunal,
and may not withdraw in other matters, unless such request ro
such withdrawal is because:
(1) The client:
* * *
(d) By other conduct renders it unreasonably difficult for the
lawyer to carry out the employment effectively.
* * *
For guidance to lawyers, Rule 8 also provides objective standards in the form of ethical
considerations. Pertinent to our inquiry is EC 2-32, which states:
A lawyer should not withdraw without considering carefully and
endeavoring to minimize the possible adverse effect on the rights
of the client and the possibility of prejudice to the client as a
result of the lawyer’s withdrawal. Even when the lawyer
justifiably withdraws, a lawyer should protect the welfare of the
client by giving due notice of the withdrawal, suggesting
employment of other counsel, delivering to the client all papers
and property to which the client is entitled, cooperating with
counsel subsequently employed, and otherwise endeavoring to
minimize the possibility of harm.
EC 2-32.
There is no assertion that Lewis’s withdrawal as Campbell’s attorney was not justified.
However, in view of the close proximity of the trial date and Lewis’s duty mandated by DR 2-
110(A)(2), Lewis should have been certain that Campbell was informed that he was expected to
be at the trial on January 23, 1998. Campbell’s affidavit states, “I was left with the impression
that I would have a reasonably short time after Mr. Lewis’s withdrawal to find new counsel, and
initiated steps to secure representation.” We have no transcript or statement of the evidence for
the hearing on the motion to set aside the judgment, but the trial court’s order denying the
motion does not refer to any introduced evidence. The only information in the record concerning
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notice to Campbell is Lewis’s certification on the motion to withdraw that he mailed a copy to
Campbell on January 8, 1998, and Lewis’s certification on the judgment subsequently entered
on January 23, 1998 that he mailed a copy of the judgment to Campbell on January 16, 1998.
While both of these writings stated that the trial was set for January 23, 1998, it is at least
questionable whether a lay person can understand that in view of the developments the trial
would still take place at that time.
Since there is no express instruction from the attorney that Campbell should prepare for
trial on January 23, 1998, the withdrawal of the attorney within a week of trial without
substitution of another attorney could be considered to warrant Campbell’s mistaken impression
that he had a reasonable time within which to obtain an attorney and proceed with the case.
Under the state of the record before us, we feel that justice requires that the judgment in this case
be set aside.
Accordingly, the judgment of the trial court is vacated, and the case is remanded to the
trial court for such further proceedings as are necessary. Costs of the appeal are assessed one-
half to appellant and one-half to appellee.
_________________________________
W. FRANK CRAWFORD,
PRESIDING JUDGE, W.S.
CONCUR:
____________________________________
ALAN E. HIGHERS, JUDGE
____________________________________
DAVID R. FARMER, JUDGE
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