KATHERINE DOWNING V BANKERS TRUST CO OF CALIFORNIA
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STATE OF MICHIGAN
COURT OF APPEALS
KATHERINE DOWNING and JERRY J.
DOWNING,
UNPUBLISHED
September 24, 2002
Plaintiffs-Appellants,
v
No. 230443
Oakland Circuit Court
LC No. 98-009955-CH
BANKERS TRUST COMPANY OF
CALIFORNIA, as trustee,
Defendant-Appellee.
Before: O’Connell, P.J., and Griffin and Hoekstra, JJ.
PER CURIAM.
Following a bench trial, plaintiffs Katherine Downing and Jerry J. Downing appeal as of
right the trial court’s order dismissing, for no cause of action, their complaint against defendant
Bankers Trust Company of California. We affirm.
The Downings brought suit to have the mortgage foreclosure sale on the Downings’
house set aside. On appeal, the Downings argue that dismissal was inappropriate because the
court forced the Downings to proceed to trial without counsel after their counsel was allowed to
withdraw two days before trial.1 The Downings contend that the serious irregularities and
unusual circumstances occurring in the foreclosure proceedings could have been successfully
argued had they been represented by counsel, instead of being forced to proceed in propria
persona. We disagree.
1
Const 1963, art 1, § 13 states:
A suitor in any court of this state has the right to prosecute or defend his suit,
either in his own proper person or by an attorney.
Our review is de novo concerning the over-arching issue whether the Downings’
constitutional right to counsel has been violated. Brandt v Brandt, 250 Mich App 68, 72;
645 NW2d 327 (2002).
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The Downings filed their complaint within the six-month statutory redemption period,
alleging that Bankers Trust had failed to credit a received payment and had subsequently refused
to accept payments tendered by the Downings to bring their account up-to-date. The trial court
granted the Downings a temporary restraining order tolling the redemption period and allowing
the Downings to remain in the house until the case could be heard on the merits. Subsequently,
the Downings’ original attorney filed a motion to withdraw, which was granted, along with a
motion for an adjournment of trial. In his motion to withdraw, the attorney claimed in part that
the Downings had not paid him as agreed and that there was a breakdown in communications so
that he could no longer represent the Downings. The Downings found another attorney, who
filed a motion to adjourn the upcoming trial and reopen discovery, which was denied.
On the day of trial, Bankers Trust was prepared to proceed, having flown in a witness
from North Carolina to testify. The Downings appeared, but their attorney did not. The court
ordered sanctions against the attorney and adjourned trial again. Two days before trial, the
Downings’ attorney served a motion on the Downings to withdraw from representing them, and
the Downings answered. In his motion, the attorney claimed that the Downings wished to
terminate his services, did not trust him, refused to meet with him, made reasonable
communication impossible, and that the Downings had generally caused a breakdown in the
attorney-client relationship. The Downings responded that it was the attorney’s decision to
withdraw because he was always breaking appointments with them and that he had demanded
more money before he would come to trial. On the date of the adjourned trial, Bankers Trust
was ready to proceed once more, and the Downings appeared without counsel. The parties were
told that another judge had granted the motion to withdraw.
The court decided to proceed with trial, and instructed Bankers Trust to present its
position, after which Katherine Downing made an opening statement. Katherine cross-examined
Bankers Trust’s witness, and both parties introduced exhibits and made short statements after the
examination concluded. The court then granted Bankers Trust’s motion to dismiss because the
evidence showed that the Downings had defaulted on their mortgage payments, Bankers Trust
had properly foreclosed, and there was no indication of fraud, irregularity, or exigency to warrant
stopping the foreclosure process.
The Downings argue on appeal that the trial court abused its discretion in granting the
attorney’s motion to withdraw two days before trial and in requiring the Downings to proceed to
trial in propria persona. We disagree with each of these contentions. This Court reviews a trial
court’s decision regarding a motion to withdraw and a motion for a continuance for an abuse of
discretion. In re Withdrawal of Attorney, 234 Mich App 421, 431; 594 NW2d 514 (1999);
Soumis v Soumis, 218 Mich App 27, 32; 553 NW2d 619 (1996). In equity cases, the trial court’s
determinations are presumed to be correct, and this Court will not find an abuse of discretion
unless it is convinced that it would have reached a different result. Wilkins v Wilkins, 149 Mich
App 779, 792; 386 NW2d 677 (1986).
With regard to the withdrawal issue, an attorney who has entered an appearance for a
party may withdraw only with the party’s consent or by leave of the court. MCR 2.117(C)(2); In
re Withdrawal of Attorney, supra at 431. In re Withdrawal of Attorney, supra, discussed the
issue of granting attorneys’ motions to withdraw under a Michigan Rules of Professional
Conduct analysis. Under MRPC 1.16, withdrawal is permitted if it “can be accomplished
without material adverse effect on the interests of the client.” Contrary to the Downings’ claim
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on appeal, the MRPC does not require that a hearing be held when a motion to withdraw is
decided, especially if the clients do not object to the motion. In this case, the Downings filed a
response to the attorney’s motion, but they did not object to his withdrawal. They merely
clarified that the decision to withdraw was the attorney’s, not theirs, and they verified that they
no longer trusted him. It does not appear that granting the motion to withdraw materially
adversely affected the Downings, since the attorney-client relationship was strained and it
appears that the attorney would not have been prepared to proceed anyway. See Lansing v
Hartsuff, 213 Mich App 338, 351; 539 NW2d 781 (1995). Thus, the court did not abuse its
discretion by granting the attorney’s motion to withdraw two days before the Downings’ trial
date. See In re Withdrawal of Attorney, supra at 431.
With regard to the adjournment issue, a court has discretion to grant or deny an
adjournment or continuance for good cause. MCR 2.503; Zerillo v Dyksterhouse, 191 Mich App
228, 230; 477 NW2d 117 (1991).
In making such a determination [whether the lower court should have granted an
adjournment], we consider whether (1) the defendant was asserting a
constitutional right; (2) he had a legitimate reason for asserting that right; (3) he
was not negligent in asserting it; (4) prior adjournments of trial were not at his
request; and (5) on appeal, he has demonstrated prejudice resulting from the trial
court’s abuse of discretion. [Lansing, supra at 351 (quotation and citation
omitted).]
The parties agree that the Downings had a constitutionally protected right to be
represented by counsel. However, as Bankers Trust notes, the Downings have had several
attorneys over the course of this matter. Trial had already been adjourned twice due to the
alleged lack of communication between the Downings and their attorneys. Bankers Trust also
had the right to have the claim against it resolved in a timely manner. In this case, the trial court
decided to proceed only after properly balancing Bankers Trust’s right to have the matter settled
against the Downings’ right to a proper foreclosure procedure.
In Bye v Ferguson, 138 Mich App 196; 360 NW2d 175 (1984), this Court held that the
trial court abused its discretion in proceeding immediately with trial after the civil defendant’s
counsel withdrew without notice. As in the present case, the attorney in Bye alleged that the
defendant failed to pay his legal fees as agreed and failed to communicate with the attorney. Id.
at 200, 206-207. Despite reversing the trial court, this Court also recognized that “[w]ithdrawal
of counsel does not give a litigant an absolute right to a continuance; the decision to grant a
continuance rests in the sound discretion of the trial court.” Id. at 207. Likewise, in Pascoe v
Sova, 209 Mich App 297; 530 NW2d 781 (1995), the fact that the civil defendant did not receive
notice that his attorney had “abandoned” the representation necessitated reversal of the judgment
against the defendant. Id. at 300-301.
In this case, the trial court sanctioned the Downings’ attorney when he failed to appear at
trial, and adjourned trial for two weeks. The Downings were served notice of the attorney’s
motion to withdraw approximately eight days later, five days before the rescheduled trial date.
The Downings were able to respond to the motion three days after that, which was two days
before the trial date, agreeing with the attorney that they were dissatisfied with his
representation.
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In Bauman v Grand Trunk W R Co, 363 Mich 604; 110 NW2d 628 (1961), our Supreme
Court recognized that the review of a trial court’s discretionary determination whether to adjourn
a case depends on the facts of each individual matter. Id. at 609. In deciding Bauman, supra, the
Court referred to McLay v McLay, 354 Mich 19; 91 NW2d 824 (1958), where the McLay Court
did not find an abuse of discretion in the denial of a motion for continuance:
where the appellant’s attorney was unable to be present; where there had been 1
previous adjournment; where there were out-of-town witnesses present; where the
adjournment request was based on the unavailability of counsel, whose presence
could not be promised for a considerable period of time . . . . [Bauman, supra at
609, citing McLay, supra; see also Lansing, supra at 351.]
The Court in Bauman, supra, looked at these types of factors and decided that the trial court had
abused its discretion in denying a continuance in a complex trial where the defense counsel had
become seriously ill and could no longer represent the defendant. Bauman, supra at 610.
Here, the trial court did not abuse its discretion by refusing to grant the Downings yet
another adjournment based on yet another attorney withdrawing as their counsel. The case had
already been adjourned at least twice based on the Downings attorneys’ actions. The Downings
had a history of “communication breakdown” with their attorneys. Bankers Trust already had
twice flown in a witness from North Carolina for trial. The case was nearly two years old, the
Downings were living in the house without paying rent, and Bankers Trust’s legal rights were on
hold because of the preliminary injunction barring Bankers Trust from claiming the property.
Furthermore, the Downings ably handled their case. The issues presented in this case were not
complex, nor did they require expert testimony, and the Downings had drawn up adequate
responses to motions in propria persona. Once the trial began, Katherine was granted much
leeway in her opening statement and closing argument, the cross-examination of Bankers Trust’s
witness, and in introducing exhibits into evidence. In the end, the evidence introduced at the
hearing did not present “a strong case of fraud, irregularity or peculiar exigency,” as required to
set aside a foreclosure sale. Detroit v Agozzino, 280 Mich 402; 273 NW 747 (1937). Even if the
Downings had been represented by counsel, the facts of their case would not have changed.
Thus, the Downings have failed to establish prejudice in this matter. See Lansing, supra at 351.
Affirmed.
/s/ Peter D. O’Connell
/s/ Richard Allen Griffin
/s/ Joel P. Hoekstra
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