Hensgen v. Hensgen

WELLS, Judge. Defendants first argue that the trial judge’s findings of fact contained in the order are not supported by any competent evidence in the record. The findings of fact to which defendants object include findings that defendants established a course of dealing by which their local counsel, Edmundson, dealt with them, and defendants dealt with Edmundson almost exclusively through Daub, that defendants were informed through Daub of both Edmundson’s intention to withdraw as attorney of record and the date for which trial was scheduled, and that Thompson had frequent conferences with Daub in April and May of 1979 but that she made no attempt to contact anyone other than Daub to ascertain the status of her case. There was plenary evidence presented at the hearing to support these findings of fact and thus such findings are binding or conclusive on this Court, even if the evidence might sustain findings to the contrary. Moore v. Deal, 239 N.C. 224, 228, 79 S.E. 2d 507, 510 (1954); Fountain v. Patrick, 44 N.C. App. 584, 585, 261 S.E. 2d 514, 515 (1980). Defendants next contend that to withdraw as attorney of record, an attorney must serve (in accordance with G.S. 1A-1, Rule 5) his client with a copy of the written motion to withdraw, and that because such notice to defendants was lacking in this case, defendants’ Rule 59 and Rule 60 motions should have been granted as a matter of law. Defendants base this contention on dicta in Smith v. Bryant, 264 N.C. 208, 211, 141 S.E. 2d 303, 306 (1965), to the effect that “written notice served on the client would be the most satisfactory evidence” that a client received “reasonable notice” of her attorney of record’s intent to withdraw. To begin with, we note that the rules governing withdrawal of counsel are set forth in Rule 16 of the General Rules of Practice for the Superior and District Courts (adopted pursuant to the provisions of G.S. 7A-34), published in Appendix I in Volume 4A of the General Statutes, and in Canon 43 of the Canons of Ethics of The North Carolina State Bar, published in Appendix VII of Volume 4A, and that the provisions of Rule 5 of the Rules of Civil Procedure are not applicable to motions of counsel to withdraw. In previous cases involving this question, our appellate courts have held that no more than “adequate” or “reasonable” notice is required. Smith v. Bryant, supra, at 211, 141 S.E. 2d at 306; Perkins v. Sykes, 233 N.C. 147, 152-53, 63 S.E. [336] 2d 133, 137-38 (1951); Gosnell v. Hilliard, 205 N.C. 297, 300-301, 171 S.E. 52, 54 (1933); Trust Co. v. Morgan-Schultheiss and Poston v. Morgan-Schultheiss, 33 N.C. App. 406, 414, 235 S.E. 2d 693, 697-98, disc. rev. denied, 293 N.C. 258, 237 S.E. 2d 535 (1977), cert. denied, 439 U.S. 958, 99 S.Ct. 360, 58 L.Ed. 2d 350 (1978). See also United States v. Maines, 462 F. Supp. 15, 16 (E.D. Tenn. 1978). The facts found by the trial court show that attorney Edmundson provided prompt and timely notice to Daub of his intentions to withdraw, and in light of the course of dealings established by defendants between Daub and Edmundson, we hold that notice to Daub constituted reasonable notice to defendants. Defendants’ final argument is that in denying defendants’ Rule 59 and Rule 60 motions, Judge Allen either abused his discretion or otherwise erred. Whether considered as a Rule 59(a), Rule 60(b)(1) or 60(b)(6) motion, defendants’ motion was addressed to the sound discretion of the trial judge, whose ruling, in the absence of abuse of that discretion, should not be disturbed on appeal. See Hamlin v. Austin, 49 N.C. App. 196, 270 S.E. 2d 558 (1980); Endsley v. Supply Corp., 44 N.C. App. 308, 310, 261 S.E. 2d 36, 38 (1979); compare Chris v. Hill, 45 N.C. App. 287, 262 S.E. 2d 716, app. dismissed, 300 N.C. 371, 267 S.E. 2d 674 (1980). The essence of defendants’ argument is surprise. The evidence before the trial court showed that defendants were given both notice of the pending trial and of the need to have counsel other than Edmundson to protect their interest. It was within the discretion of the trial court to determine whether defendants’ neglect in either not procuring such other counsel or in not appearing for the trial was excusable neglect. We hold there was no abuse of the trial court’s discretion in denying defendants’ motions. The order denying defendants’ motions must be and is Affirmed. Judges Hedrick and Martin (H.) concur.