{ "id": 8522328, "name": "MILDRED MINTZ BENTON and husband, WILLIAM E. BENTON v. JOSEPH H. MINTZ", "name_abbreviation": "Benton v. Mintz", "decision_date": "1990-03-20", "docket_number": "No. 8913SC488", "first_page": "583", "last_page": "589", "citations": [ { "type": "official", "cite": "97 N.C. App. 583" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "348 S.E.2d 250", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "252" } ], "opinion_index": 0 }, { "cite": "321 S.E.2d 514", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "516", "parenthetical": "one or two day period insufficient for party to either prepare case or acquire alternative representation" } ], "opinion_index": 0 }, { "cite": "71 N.C. App. 215", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524828 ], "year": 1984, "pin_cites": [ { "page": "217", "parenthetical": "one or two day period insufficient for party to either prepare case or acquire alternative representation" } ], "opinion_index": 0, "case_paths": [ "/nc-app/71/0215-01" ] }, { "cite": "137 S.E.2d 105", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1964, "opinion_index": 0 }, { "cite": "262 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567905 ], "year": 1964, "opinion_index": 0, "case_paths": [ "/nc/262/0413-01" ] }, { "cite": "453 S.W.2d 379", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10139665 ], "year": 1970, "pin_cites": [ { "page": "382" } ], "opinion_index": 0, "case_paths": [ "/sw2d/453/0379-01" ] }, { "cite": "345 S.E.2d 228", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1986, "pin_cites": [ { "page": "230" } ], "opinion_index": 0 }, { "cite": "81 N.C. App. 654", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8524936 ], "year": 1986, "pin_cites": [ { "page": "657" } ], "opinion_index": 0, "case_paths": [ "/nc-app/81/0654-01" ] }, { "cite": "316 S.E.2d 342", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1984, "pin_cites": [ { "page": "344" } ], "opinion_index": 0 }, { "cite": "69 N.C. App. 171", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8525913 ], "year": 1984, "pin_cites": [ { "page": "174" } ], "opinion_index": 0, "case_paths": [ "/nc-app/69/0171-01" ] }, { "cite": "223 S.E.2d 380", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 3, "year": 1976, "pin_cites": [ { "page": "387" }, { "page": "387" }, { "page": "388" } ], "opinion_index": 0 }, { "cite": "289 N.C. 473", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8570748 ], "weight": 2, "year": 1976, "pin_cites": [ { "page": "484" }, { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc/289/0473-01" ] }, { "cite": "357 S.E.2d 181", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1987, "pin_cites": [ { "parenthetical": "court lacks discretion and must grant continuance where attorney has given no prior notice of withdrawal" } ], "opinion_index": 0 }, { "cite": "86 N.C. App. 222", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 12127072 ], "year": 1987, "pin_cites": [ { "parenthetical": "court lacks discretion and must grant continuance where attorney has given no prior notice of withdrawal" } ], "opinion_index": 0, "case_paths": [ "/nc-app/86/0222-01" ] } ], "analysis": { "cardinality": 661, "char_count": 15008, "ocr_confidence": 0.757, "pagerank": { "raw": 1.0587465343763224e-07, "percentile": 0.5560133042505567 }, "sha256": "1d4644d8ad5a3cd58099787ba61432e7d07b5e99b318db9033ac760b8f054a43", "simhash": "1:2fabf26d170e8fcb", "word_count": 2484 }, "last_updated": "2023-07-14T17:09:00.422652+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Hedrick and Phillips concur." ], "parties": [ "MILDRED MINTZ BENTON and husband, WILLIAM E. BENTON v. JOSEPH H. MINTZ" ], "opinions": [ { "text": "GREENE, Judge.\nThis non-jury civil action arises from a complicated boundary dispute. The trial court entered judgment for the plaintiffs, and the defendant appeals.\nThe plaintiffs instituted this action on 20 December 1983. On 21 January 1987 Bruce H. Robinson entered an appearance on the defendant\u2019s behalf. On 8 April 1988 Mr. Robinson filed a \u201cMotion to Withdraw\u201d 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 \u201cRejection of Motion to Withdraw of Defendant\u2019s Attorney Name Bruce H. Robinson.\u201d 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:\nPLEASE 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.]\nOn 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:\nWhen 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\u2019t 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.\nSir if you want another type court you' should schedule for another session of that court later on, then you can say your wishes.\nOn 3 October 1988 a hearing was conducted to rule on Mr. Robinson\u2019s \u201cMotion to Withdraw.\u201d At the beginning of this proceeding, the defendant announced \u201cI\u2019m representing myself.\u201d Upon the court\u2019s questioning as to whether the defendant was releasing his lawyer, Mr. Mintz replied \u201cNot until he\u2019s been checked out with what evidence I\u2019ve got, and I want it done by the Grand Jury.\u201d The defendant later stated that Mr. Robinson \u201cshouldn\u2019t get out of the case until I find more on him, what he has done to me in this case.\u201d The defendant continued, stating \u201che [Mr. Robinson] shouldn\u2019t get out without me getting my money back.\u201d\nMr. Robinson asked to be excused from representing the defendant because no \u201cvalid attorney/client relationship\u201d 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.\nThe trial court found \u201cthat 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.\u201d The trial court concluded \u201cthat there can be no attorney/client relationship between Mr. Robinson and the defendant.\u201d Therefore the trial court allowed Mr. Robinson\u2019s Motion for Withdrawal and ordered him removed as counsel for the defendant.\nDuring the special proceeding, the trial court, after announcing that it was inclined to grant Mr. Robinson\u2019s \u201cMotion to Withdraw,\u201d stated that the case was thus ready for trial. The defendant responded that he needed to gather his witnesses. The defendant stated \u201cI understood this case wasn\u2019t going to be tried, but just for my lawyer to get out.\u201d After further discussion, the court stated that \u201cthe case is not going to be continued.\u201d The defendant responded \u201cJudge, 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.\u201d 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\u2019s insistence that the trial commence that afternoon, Mr. Mintz stated \u201cWell, one of my witnesses is in the rest home at Wrightsville Beach. I need to get some kind of papers fixed on him.\u201d The defendant again asked to delay the trial, but the trial court refused.\nThe 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.\nThe issues presented are: I) whether the trial court abused its discretion in granting Mr. Robinson\u2019s motion to withdraw; and II) whether the trial court erred in failing to grant the defendant\u2019s motion for a continuance.\nI\nThe 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:\nNo 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.\nThe 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.\nThe determination of counsel\u2019s motion to withdraw is within the discretion of the trial court, and thus we can reverse the trial court\u2019s decision only for abuse of discretion. See Brown v. Rowe Chevrolet-Buick, Inc., 86 N.C. App. 222, 357 S.E.2d 181 (1987) (court lacks discretion and must grant continuance where attorney has given no prior notice of withdrawal). The defendant apparently does not dispute on appeal that Mr. Robinson presented to the court evidence of a justifiable cause for his withdrawal. Nonetheless we note that the dissolution of the attorney/client relationship as well as the defendant\u2019s reputed unwillingness to pay surveyors hired pursuant to litigation preparation, constitute justifiable cause for Mr. Robinson\u2019s withdrawal. We have no hesitation in so concluding since the record shows the defendant apparently did not actually want Mr. Robinson to continue representing him. Rather the defendant\u2019s statements to the court indicated the defendant wanted Mr. Robinson to remain part of the action to allow the court or a \u201cGrand Jury\u201d to investigate some alleged misdealings of Mr. Robinson toward the defendant. Mr.' Robinson also provided reasonable notice to his client by filing a motion to withdraw some five months prior to trial which motion the defendant received. Mr. Robinson filed with the superior court and sent to the defendant notice of the hearing to determine the \u201cMotion to Withdraw\u201d about three weeks prior to the hearing. Lastly, the trial court granted Mr. Robinson\u2019s motion for withdrawal and ordered said withdrawal. We find that Mr. Robinson completely complied with the requirements of Superior Court Rule 16 in withdrawing from representation of the defendant. The trial court did not err in permitting Mr. Robinson to withdraw as counsel for defendant.\nII\nThe defendant next argues that the trial court erred in failing to grant the defendant a continuance after having allowed withdrawal of defendant\u2019s counsel. \u201cNo 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.\u201d N.C.G.S. \u00a7 1A-1, Rule 40(b) (1983). \u201c[A]n attorney\u2019s withdrawal on the eve of the trial of a civil case is not ipso facto grounds for a continuance.\u201d Shankle v. Shankle, 289 N.C. 473, 484, 223 S.E.2d 380, 387 (1976). \u201c[T]he decision whether to grant a continuance because the moving party\u2019s attorney has withdrawn from the case on the day of trial rests in the trial judge\u2019s discretion, to be exercised after he has determined from the facts and circumstances of a particular case whether immediate trial or continuance will best serve the ends of justice.\u201d 289 N.C. at 485, 223 S.E.2d at 387.\nAn unrepresented party\u2019s failure to formally request a continuance does not preclude review of this issue. Underwood v. Williams, 69 N.C. App. 171, 174, 316 S.E.2d 342, 344 (1984). The defendant here repeatedly told the court that he did not know trial was to commence on the day of the special proceeding. The record tends to verify defendant\u2019s claim of lack of knowledge. In Mr. Robinson\u2019s 9 September 1988 Notice of Hearing, Mr. Robinson notified the defendant that the hearing of 3 October 1988 would be \u201cfor the purpose of determining whether Bruce H. Robinson, Jr. will be permitted to withdraw. . . .\u201d This notice fails to mention that trial was also scheduled for that date. The defendant\u2019s 30 September letter makes evident the defendant\u2019s lack of knowledge that the case was scheduled for trial.\nDuring 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\u2019s attempt to keep informed as of the trial date. On 17 May 1988, shortly after learning of his counsel\u2019s 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\u2019s apparent failure to inform the defendant of the pending trial should not be attributable to the defendant. See Barclays American Corp. v. Howell, 81 N.C. App. 654, 657, 345 S.E.2d 228, 230 (1986).\nFurthermore, 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 witnesses. In addition, Mr. Robinson told the court that the case should be continued. However, the court ordered the defendant to proceed that afternoon with trial of very complicated issues regardless of whether the defendant had counsel or witnesses.\n\u201cA 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.\u201d Lowe v. City of Arlington, 453 S.W.2d 379, 382 (Tex. Civ. App. 1970); see McMillan v. Robeson County, 262 N.C. 413, 137 S.E.2d 105 (1964). The few hours of notice the defendant here had were clearly insufficient for adequate preparation. See Williams and Michael, P.A. v. Kennamer, 71 N.C. App. 215, 217, 321 S.E.2d 514, 516 (1984) (one or two day period insufficient for party to either prepare case or acquire alternative representation). A review of the record indicates complicated legal issues were involved. Given the complex issues at trial, indisputably the defendant was prejudiced by having to proceed to an immediate trial without counsel. \u201cIt is quite apparent that the trial of this case is beyond the capability of laymen and without counsel [defendant] will be lost.\u201d See Shankle, 289 N.C. App. at 486, 223 S.E.2d at 388.\nWe also note that reversal of the trial court\u2019s refusal to grant a continuance \u201cis especially warranted when nothing in the case indicates that the movant\u2019s purpose for the motion is to delay or evade trial.\u201d Mills v. Mills, 348 S.E.2d 250, 252 (Va. 1986). Because nothing in the record here indicates the movant sought to delay or evade trial, and because the movant did not know trial was scheduled and because the movant\u2019s ability to produce witnesses and prove its case was prejudiced thereby, we must grant a new trial.\nNew trial.\nJudges Hedrick and Phillips concur.", "type": "majority", "author": "GREENE, Judge." } ], "attorneys": [ "Frink, Foy, Gainey & Yount, P.A., by Stephen B. Yount, for plaintiff-appellees.", "Shipman & Lea, by Gary K. Shipman, for defendant-appellant." ], "corrections": "", "head_matter": "MILDRED MINTZ BENTON and husband, WILLIAM E. BENTON v. JOSEPH H. MINTZ\nNo. 8913SC488\n(Filed 20 March 1990)\n1. Attorneys at Law \u00a7 6 (NCI3d)\u2014 withdrawal of attorney from case proper\nThe trial court did not err in permitting an attorney to withdraw as counsel for defendant since dissolution of the attorney/client relationship as well as defendant\u2019s reputed unwillingness to pay surveyors hired pursuant to litigation preparation constituted justifiable cause for the attorney\u2019s withdrawal; the attorney provided reasonable notice to his client by filing a motion to withdraw some five months prior to trial, which motion defendant received; the attorney filed with the superior court and sent to defendant notice of the hearing to determine the \u201cMotion to Withdraw\u201d about three weeks prior to the hearing; and the trial court granted the attorney\u2019s motion for withdrawal and ordered said withdrawal.\nAm Jur 2d, Attorneys at Law \u00a7\u00a7 173, 174, 175.\n2. Trial \u00a7 3.2 (NCI3d)\u2014 withdrawal of defendant\u2019s counsel \u2014 immediate trial \u2014 denial of continuance improper\nThe trial court erred in failing to grant defendant a continuance after having allowed withdrawal of defendant\u2019s counsel where defendant repeatedly told the court that he did not know trial was to commence on the day of the special proceeding to allow counsel to withdraw; the record tended to verify defendant\u2019s claim of lack of knowledge; defendant\u2019s ex-lawyer verified that he had likely misled his client as to the nature of the proceedings on the day in question; the record contained no indication that defendant knew or should have known of the trial; shortly after learning of his counsel\u2019s desire to withdraw, defendant filed with the superior court clerk a request to be personally informed should his case be scheduled on a court calendar; defendant informed the trial court that he would have difficulty procuring his witnesses on such short notice; defendant requested that the trial be delayed for a day or one week to allow him to gather witnesses; defendant\u2019s ex-lawyer told the court that the case should be continued; defendant was prejudiced by having to proceed to an immediate trial without counsel; and nothing in the record indicated that movant sought to delay or evade trial.\nAm Jur 2d, Continuance \u00a7\u00a7 7, 13.\nAppeal by defendant from judgment entered 6 October 1988 by Judge I. Beverly Lake, Jr. in BRUNSWICK County Superior Court. Heard in the Court of Appeals 4 December 1989.\nFrink, Foy, Gainey & Yount, P.A., by Stephen B. Yount, for plaintiff-appellees.\nShipman & Lea, by Gary K. Shipman, for defendant-appellant." }, "file_name": "0583-01", "first_page_order": 611, "last_page_order": 617 }