Williams and Michael, PA v. Kennamer

321 S.E.2d 514 (1984)

WILLIAMS AND MICHAEL, P.A.
v.
Isabelle Clanton KENNAMER.

No. 8326DC1259.

Court of Appeals of North Carolina.

November 6, 1984.

Mraz & Boner, P.A. by Richard D. Boner, Charlotte, for defendant-appellant.

Williams & Michael, P.A. by Robin S. Lymberis, Charlotte, for plaintiff-appellee.

VAUGHN, Chief Judge.

The merits of plaintiff's claim are not before us. Defendant assigns as error the trial court's granting of Levine's motion to withdraw and its refusal to allow more than two days within which to prepare for trial or to obtain substitute counsel. We agree that the judge erred.

It is fundamental that an attorney is not at liberty to abandon a case without (1) justifiable cause, (2) reasonable notice to his client, and (3) the permission of the court. Smith v. Bryant, 264 N.C. 208, 141 S.E.2d 303 (1965); Perkins v. Sykes, 233 N.C. 147, 63 S.E.2d 133 (1951); State v. Penley, 6 N.C.App. 455, 170 S.E.2d 632 (1969), cert. denied, 276 N.C. 85 (1970). Whether Levine was justified in requesting withdrawal from the case is not at issue. Under no circumstances may an attorney of record be permitted to withdraw on the day of trial without first satisfying the court that he has given his client prior notice which is both specific and reasonable. Timely notice is a "first requirement" for withdrawal and was obviously absent in this case. Smith, 264 N.C. at 211, 141 S.E.2d at 306. The trial court clearly erred by permitting Levine to withdraw without first receiving such assurances.

Plaintiff cites the "general rule [whereby] an attorney's withdrawal on the eve of trial of a civil case is not ipso facto grounds for a continuance." Shankle v. Shankle, 289 N.C. 473, 484, 223 S.E.2d 380, 387 (1976). The decision to grant a continuance under such circumstances is within the trial judge's discretion. Id. Plaintiff's reliance on this authority is misapplied. The general rule presupposes that an attorney's withdrawal has been properly investigated and authorized by the court and no such actions were taken in the present case. 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.

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. See Smith, supra. The fact that defendant was being sued by former legal counsel for nonpayment of attorney's fees would not make the latter task easier.

We, therefore, hold that defendant is entitled to a new trial. At such time, she may, if desired, be afforded the right to trial by jury pursuant to art. 1, sec. 25 of the North Carolina Constitution and Rule 38 of the Rules of Civil Procedure.

Judgment vacated. Remanded for new trial.

WHICHARD and JOHNSON, JJ., concur.