court lacks discretion and must grant continuance where attorney has given no prior notice of withdrawal
How later courts described this case
- court lacks discretion and must grant continuance where attorney has given no prior notice of withdrawal
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The opinion
WELLS, Judge.
Defendant’s sole argument on appeal is that the court erred in denying defendant’s request at the beginning of the trial for a *224 continuance. Rowe contends that it was not afforded a reasonable opportunity to retain the services of another attorney, having only been notified the afternoon before that its attorney was removed. We disagree.
N.C. Gen. Stat. § 1A-1, Rule 40(b) of the N.C. Rules of Civil Procedure provides:
(b) 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. Good cause for granting a continuance shall include those instances when a party to the proceeding, a witness, or counsel of record has an obligation of service to the State of North Carolina, including service as a member of the General Assembly.
Whether to grant a motion to continue is within the sound discretion of the trial court. Shankle v. Shankle, 289 N.C. 473 , 223 S.E. 2d 380 (1985); Doby v. Lowder, 72 N.C. App. 22 , 324 S.E. 2d 26 (1984). Where the attorney has given the movant no prior notice of intent to withdraw, the court has no discretion but must grant a reasonable continuance or deny motion to withdraw. Williams & Michael, P.A. v. Kennamer, 71 N.C. App. 215 , 321 S.E. 2d 514 (1984). The general rule, however, is that the withdrawal of counsel on the eve of trial is not ipso facto grounds for continuance. Shankle v. Shankle, supra.
In the case at bar, the record contradicts Rowe’s contention that it had no notice of withdrawal of its counsel. Rivenbark and Kirkman’s response to plaintiffs’ motion establishes that the firm made efforts on Rowe’s behalf to secure other counsel as early as May 1986 but that Rowe never signed the documents or even responded to the firm’s inquiries. The trial court’s denial of a continuance was therefore a proper exercise of its discretion, and the judgment appealed from is
Affirmed.
Judges Arnold and ORR concur.