Jones-Blair Co. v. Hammett

Melvin Mayfield, Judge,

dissenting. Although the opinion agreed to by the majority of this court appears to have reached the right result as to the appellant’s motion to extend the time to appeal, I cannot agree with the majority opinion’s holding that the trial court did not err in failing to grant the appellant’s motion to vacate the trial court’s judgment, entered on January 28, 1993, and grant appellant a new trial under the authority of Ark. R. Civ. P. 60(c)(1).

The majority opinion recognizes that our supreme court in Diebold v. Myers General Agency, Inc., 292 Ark. 456, 731 S.W.2d 183 (1987), considered the issue of whether the appellant there was entitled to relief under Rule 60(c) based upon the contention that the trial court erred in allowing the appellant’s attorney to withdraw in violation of Ark. R. Civ. P. 64. However, the majority opinion notes that Diebold did not grant the appellant relief in that case because “she was negligent in failing to check on or show any interest whatever in the suit against her of which she had been given notice.” The majority opinion then points out that the trial judge made a similar finding in the present case, and after a brief review of the evidence the majority opinion affirms the trial court’s decision.

My view of the evidence and the law in this case reaches a completely opposite conclusion, although it requires a more detailed explanation. An important consideration, however, is what the court in Diebold said was “the most troublesome aspect of this case,” and this concerns Ark. R. Civ. P. 64, which governs the conditions under which an attorney may be granted permission to withdraw from representation of a party in a case in court.

The appellant’s argument on its Rule 60(c) motion begins as follows:

[Appellant] moved pursuant to Rule 60(c)(1) to set aside the Judgment where the grounds for new trial “were discovered after expiration of ninety (90) days after the filing of the Judgment.” [Appellant’s] ground for new trial was based upon Rule 59(a)(1) which permits a new trial where “any irregularity in the proceedings or any order of the court or abuse of discretion by which the party was prevented from having a fair trial.” [Appellant] contends that permitting its attorney to withdraw in the face of the pending counterclaim upon which the trial court was about to hear evidence resulted in prejudice to [appellant] and was such an “irregularity” as to prevent [appellant] from having a fair trial. ... In any event, the trial court did not satisfactorily comply with Rule 64 and summarily permitted Richard Atkinson to withdraw.

In an order entered June 7, 1994, the trial court denied both the motion to extend appeal time and the motion to vacate judgment and grant a new trial. The court based its action upon the finding that “the appellant was negligent in failing to show up for trial, and that negligence continued after trial until it became aware of the judgment, and took some action to set it aside.” The court also found that Mr. Atkinson took reasonable steps to withdraw as appellant’s attorney. Under the applicable law, I do not think those findings are supported by the evidence. I think the trial court erred in allowing appellant’s counsel to withdraw on the day of the trial at which the appellee obtained judgment for $39,819.90 on her counterclaim against the appellant. And I do not think the appellant was guilty of such negligence that the judgment should not be vacated and the appellant granted a new trial.

The record as abstracted by the appellant shows that Attorney David Reynolds filed this suit for the appellant in January of 1989. The appellant is located in Dallas, Texas, and the suit was filed to collect for material it had sold to appellee. On October 5, 1990, Richard Atkinson was substituted by court order as appellant’s attorney. On October 22, 1992,"Atkinson wrote appellant notifying it that he had “inherited the case from a former partner”; that the case was set for trial on January 27, 1993; and asking that appellant “contact me as soon as possible to let me know how you wish to proceed.” On November 10, 1992, appellant responded to Atkinson’s letter asking for particulars in regard to further litigation because it had charged off appellee’s account. On December 3, 1992, Atkinson wrote appellant notifying it of the trial date and the possibility of a default judgment on the counterclaim filed against it by the appellee. Although appellant did not respond to this letter, appellant says it never received the letter; there is nothing in the record to show it was received; and there was no finding by the trial court that it was received. In fact, at one place in the trial court’s order entered June 7, 1994, from which this appeal comes, the court states “there is some question whether Jones-Blair Paint Company [appellant] actually received the letter dated December 3, 1992,” but at another point in that order the court states that Atkinson and the appellant “have both now testified that there was no communication between [them] other than the letters of October 22, 1992, and the letter of November 10, 1992, and Mr. Atkinson’s letter of December 3, 1992, which Jones-Blair did not receive.”

Thus it appears that the trial court specifically found that the appellant did not receive the letter of December 3, 1992. And at a hearing on the motions involved in this appeal, held February 9, 1994, Atkinson said that he received a letter from appellant stating it was not aware of the counterclaim; and that, other than the letter dated December 3, 1992, he took no steps prior to trial to protect appellant’s rights.

Now it should be remembered that the majority opinion does not approve of the trial court’s granting the attorney’s motion to withdraw, made on the day of trial, but holds only that the trial court did not err in refusing to vacate its judgment by granting appellant a new trial under the authority of Ark. R. Civ. P. 60(c)(1). And, as stated above, the majority opinion bases that holding on the trial court’s finding that the appellant was “negligent in failing to show up for trial, and that the negligence continued after trial until it became aware of the judgment, and took some action to set it aside.” (The majority opinion does not quote this specific language of the trial court’s finding.) But before the trial court’s finding is examined more closely, I think we should look, as did the court in Diebold, at the matter of the court’s permission to let appellant’s attorney withdraw from the case.

Arkansas Rule of Civil Procedure 64(b) contains the following requirement:

(b) A lawyer may not withdraw from any proceeding or from representation of any party to a proceeding without permission of the court in which the proceeding is pending. Permission to withdraw may be granted for good cause shown if counsel seeking permission presents a motion therefor to the court showing he (1) has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including giving due notice to his client, allowing time for employment of other counsel: ....

When we view this matter in light of the above rule, I think it is evident that the trial court erred in allowing Mr. Atkinson to withdraw on the day of the trial. Obviously, if the appellant had received Atkinson’s letter of December 3, 1992, the attorney’s withdrawal without any attempt to defend the counterclaim at the trial on January 27, 1993, would present a different situation. But the trial judge’s order clearly shows that he did not think that the appellant had received Atkinson’s letter of December 3, 1992, and the record certainly supports that belief. Rule 64(b) requires good cause for permission to withdraw but beyond that — it requires that counsel show he “has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including due notice to his client,....” (Emphasis added.) Notice is not enough — reasonable steps to avoid foreseeable prejudice to the rights of the client must also be shown to the court. The truth of the matter is that here no such showing was made, and it was obvious that the appellee would get a judgment on her counterclaim if the appellant’s attorney was allowed to withdraw on the day of trial.

Although I agree that this appeal turns on the trial court’s holding that the appellant was negligent in keeping up with its case, I also think that issue is affected in this case by the court’s granting appellant’s attorney permission to withdraw. This is exactly the point of difference between this case and the Diebold case. In that case the court specifically stated, “Even if the judge had overruled Mr. Hickman’s motion to withdraw, Mrs. Diebold would have been no better off, as she was unaware of the proceedings and Mr. Hickman was unavailable.” 292 Ark. at 462, 731 S.W.2d at 187. There, when Mrs. Diebold was served with the summons she turned the matter over to her son who hired Mr. Hickman’s law firm to file an answer. Hickman testified that he had sought on numerous occasions to discuss the case with Mrs. Diebold and her son, but he was unable to reach her by telephone or through other attorneys and her son had simply “disappeared.”

However, in the instant case, even though Atkinson’s letter of December 3, 1992, was not received, if he had not been given permission to withdraw he would have under the rules of procedure been furnished a copy of the judgment and would have been obligated to inform his client of the judgment. As it was, counsel for the appellee sent a copy to the appellant but because it was not correctly addressed it was returned undelivered. Appellee’s counsel then sent another letter to the appellant, but this was after the expiration of 90 days from the date of the entry of the judgment. Thus, appellant did not learn of the entry of the judgment in time to file a motion for new trial under Ark. R. Civ. P. 59, for relief under Ark. R. Civ. P. 60(a) or (b), or even to file a notice of appeal. Moreover, had Atkinson not been allowed to withdraw he could have asked for a continuance, could have objected to the evidence the appellants say was hearsay, and could have cross-examined the appellee’s witnesses. What benefit this would have is problematical, of course, but it surely would be better than not having any representation during the trial.

The majority opinion cites two other cases as support for its affirmance of the trial court’s holding that the appellant was negligent in keeping up with this case.

In CMS Jonesboro Rehabilitation, Inc. v. Lamb, 306 Ark. 216, 812 S.W.2d 472 (1991), the appellees perfected service upon the appellant’s registered agent who forwarded the complaint and summons to the appellant. Appellant contacted its insurance carrier which initially agreed to defend the action, but subsequently reneged. Appellant’s general contractor agreed to assume the defense, but failed to do so. Appellant did nothing to assure the contractor was indeed defending the suit and after four and one-half months a default judgment was entered against appellant. The issue, however, was whether the default judgment should be set aside for unavoidable casualty or excusable neglect. The issue in the instant case is not the same.

And in Karam v. Halk, 260 Ark. 36, 537 S.W.2d 797 (1976), the trial court sent the attorneys a memorandum stating its findings and fixing damages, but the appellants and their attorneys failed to make inquiry or take steps to learn whether judgment had been entered until writs of execution and garnishment were issued. The trial court’s refusal to set aside the judgment was affirmed on the basis that appellants did not show that their failure to learn that judgment had been entered was not due to their own negligence. In the instant case, the appellant has shown that the entry of the judgment and the delay in knowing about it was due, at least in part, to the trial court’s grant of permission for appellant’s attorney to withdraw from the case.

In summary, I believe that under the law and the evidence in this case, the trial court erred in allowing the appellant’s attorney to withdraw on the day of the trial, and this resulted in the judgment on the appellee’s counterclaim. While it is reasonable to believe that the appellant could have been more diligent in keeping up with this case, I do not believe it was negligent to the degree that the judgment against it should not be set aside under Ark. R. Civ. P. 60(c)(1). It must surely be proper to consider the obligations of both the client and the attorney in a situation such as we have here. In Diebold the Arkansas Supreme Court said our Civil Procedure Rule 64 “has its basis in what is now called the Code of Professional Responsibility.” The Code’s Rule 1.16 and Civil Procedure Rule 64 both have specific requirements for attorneys to meet before withdrawing from representation of their clients. Judges have the duty to see that the requirements set out in Rule 64 have been met before granting an attorney permission to withdraw from a case pending in court. When the duty of the client to keep informed about his case and the duty of the court to enforce the requirements of Rule 64 are both considered, I think the court erred, under the factual circumstances here, in granting permission for the appellant’s attorney to withdraw from this case.

Therefore, I would reverse and remand this case for a new trial.

Rogers, J., joins in this dissent.