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Devincenzi and Richmond v. M. Wright, d/b/a Mike's Mechanics (10/21/94), 882 P 2d 1263
Notice: This opinion is subject to
formal correction before publication in the
Pacific Reporter. Readers are requested to
bring errors to the attention of the Clerk of
the Appellate Courts, 303 K Street,
Anchorage, AK 99501.
THE SUPREME COURT OF THE STATE OF ALASKA
ROY A. DEVINCENZI and ) Supreme Court No. S-5517
RICHARD L. RICHMOND, )
) Superior Court
Appellants, ) No. 3AN-90-10038 Civil
v. ) O P I N I O N
MICHAEL WRIGHT, d/b/a ) [No. 4136 - October 21, 1994]
MIKE'S MECHANICS, )
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Peter A. Michalski,
Appearances: A. Lee Petersen,
Anchorage, for Appellants. R. R. DeYoung,
Wade & DeYoung, Anchorage, for Appellees.
Before: Moore, Chief Justice,
Rabinowitz, Matthews and Compton, Justices,
Bryner, Justice, pro tem.*
BRYNER, Justice, pro tem.
Roy Devincenzi and Richard Richmond appeal the
dismissal of their case and an award of costs and attorney's fees
against them. Devincenzi and Richmond challenge the rulings
that led to the dismissal: an order denying their trial
counsel's motion to withdraw and an order denying Devincenzi and
Richmond a continuance of trial. We reverse and remand for
I. FACTS AND PROCEEDINGS
On December 3, 1990, Roy A. Devincenzi and Richard L.
Richmond filed a complaint against Michael Wright, d/b/a Mike's
Mechanics.1 The complaint alleged negligence in connection with
an airplane crash.
During the course of discovery, Devincenzi and
Richmond, through their attorney, Roger A. McShea, failed to
comply with a number of discovery requests and orders; two of the
violations resulted in sanctions.2 Devincenzi and Richmond
violated a number of the pretrial order requirements as well.
These violations included: (1) filing the preliminary witness
list ten days after it was due; (2) failing to file an expert
witness list; (3) failing to file a final witness list; (4)
failing to respond to Wright's counsel's request to exchange
copies of all exhibits and exhibit lists and stipulate as to
their admissibility; and (5) failing to file the trial brief.3
On September 28, 1992, one week before trial was
scheduled to commence, McShea filed a motion to withdraw as
Devincenzi's and Richmond's counsel, citing his inability to try
the case due to an injury from a recent automobile accident.
Also on September 28, Devincenzi and Richmond filed, on their own
behalf, a motion for continuance of trial. In support of this
motion they alleged that it had become necessary for them to
dismiss McShea, citing his failure to provide them with relevant
information and perform functions pertinent to their
representation. Wright opposed the requested continuance. On
September 30, 1992, Superior Court Judge Peter A. Michalski
entered orders simultaneously denying McShea's motion to withdraw
as counsel and Devincenzi's and Richmond's motion for
On October 2, 1992, the day before trial, Richmond,
purportedly acting on behalf of Devincenzi and himself, entered
into a stipulation for dismissal of the complaint with prejudice.
The stipulation, prepared by Wright's counsel, who had contacted
Richmond directly, contained the following provision:
The Court shall retain jurisdiction over
this action for the purposes of determining
the extent to which Defendant Wright is
entitled to recover his costs, attorney's
fees and other relief, as prayed for in his
Answer to the Complaint.
The trial court entered an order of dismissal that same day,
Also on October 2, at 3:55 p.m., McShea filed a motion
to disqualify Judge Michalski for cause. Judge Michalski did not
see this motion until three days later. At that time, the Judge
denied McShea's disqualification motion but vacated the court's
earlier order denying McShea's motion to withdraw as counsel. In
so doing, Judge Michalski noted that the October 2, 1992,
stipulation of dismissal was dispositive of the case.
On October 29, 1992, Devincenzi, acting pro se, filed a
pleading objecting to any award of costs or attorney's fees
against himself, complaining that "Mr. Richmond did not have
[Devincenzi's] authority to sign for a dismissal which provided
for either side's recovering costs and attorneys' fees." Wright
filed his Motion for Attorney's Fees and Costs on November 23,
1992. On January 7, 1993, the court entered judgment against
Devincenzi and Richmond based on the stipulation for dismissal
and awarded costs and attorney's fees against both Devincenzi and
Devincenzi and Richmond appeal from this final
judgment, asserting that the trial court erred in (1) denying
McShea's motion to withdraw as counsel; (2) denying their motion
to continue the trial; (3) dismissing the case on the basis of a
stipulation signed by Richmond without benefit of counsel at a
time when they were represented by counsel, and without
authorization by Richmond's co-plaintiff, Devincenzi; (4) failing
to grant McShea's motion for disqualification of Judge Michalski;
and (5) awarding costs and attorney's fees.
A. Denial of McShea's Motion to Withdraw as Counsel
Alaska Civil Rule 81(d)(1) provides:
An attorney who has appeared for a party
in an action or proceeding may be permitted
to withdraw as counsel for such party only as
. . . .
(iii) Where the party expressly
consents in open court or in writing to the
withdrawal of his attorney and the party has
provided in writing or on the record a
current service address and telephone number.
McShea filed a pleading entitled "Withdrawal of Attorney Pursuant
to Rule 81(d)(1)(iii),"which stated that Devincenzi and Richmond
"consent to the withdrawal of McShea as counsel pursuant to Rule
81(d)(1)(iii) of the Civil Rules of Court, and move for the
Court's approval thereof." (Emphasis added.) The pleading fully
complied with the requirements of Rule 81(d)(1)(iii): it
provided a current service address and telephone number for
Devincenzi and incorporated statements of consent to withdrawal
signed by both Devincenzi and Richmond.
In denying McShea's motion to withdraw as Devincenzi's
and Richmond's counsel, the superior court merely stated that
"McShea's attempted withdrawal from this case has not been
properly presented to the Court." The court did not explain why
McShea's motion was not "properly presented"or give any other
reason for denying the motion.
Based on the record before us, we find that the trial
court erred in determining that McShea's motion to withdraw as
counsel was not "properly presented." Since this was the sole
basis relied on by the trial court for denial of the motion to
withdraw, and since we are aware of no other ground supporting
the trial court's ruling,5 we must further conclude that the
trial court abused its discretion in denying McShea's motion to
withdraw as counsel.
The trial court's erroneous denial of McShea's motion
to withdraw unquestionably affected its simultaneous decision to
deny Devincenzi's and Richmond's motion for a continuance of
trial, which had been filed in anticipation of McShea's
withdrawal and was exclusively based on the situation that was
expected to result from their being left without counsel on the
eve of trial. Having denied withdrawal, the court had no
occasion to consider the merits of the requested continuance.
Because the court's order denying the motion to continue was
predicated on its erroneous denial of McShea's motion for
withdrawal, denial of the motion to continue likewise amounted to
an abuse of discretion.6
Based on a review of the entire record, we are left
with a "definite and firm conviction"that the trial court erred
in its ruling, and thus, we reverse the superior court's entry of
final judgment against Devincenzi and Richmond.7 See Betz v.
Chena Hot Springs Group, 742 P.2d 1346, 1348 (Alaska 1987).
We REVERSE the superior court's order entering final
judgment against Devincenzi and, consequently, REVERSE its award
of attorney's fees and costs to Wright. We REMAND this case to
the superior court with instructions to proceed with the
litigation, placing the parties in a position as close as
possible to the
position they were in at the time the superior court erroneously
denied McShea's motion to withdraw.8
* Sitting by assignment made under article IV, section 16
of the Alaska Constitution.
1 Dennis Cooley and the Federal Deposit Insurance
Corporation (FDIC) were also originally named as defendants.
Devincenzi and Richmond subsequently dismissed as to Cooley and
the FDIC; however, those dismissals are not at issue here.
2 On February 7, 1992, after Devincenzi and Richmond
failed to comply with a "Second Request for Production of
Documents,"Wright filed a Motion to Compel Discovery. On March
5, 1992, the court entered an order compelling production and
awarded Wright $395.50 for reasonable attorney's fees in
obtaining the order. Despite a promise by McShea to pay the
sanction, no payment had been made by May 19, when Wright moved
for an order for sanctions regarding this failure to pay. The
court granted the motion on June 11, 1992, sanctioning McShea an
3 Devincenzi's and Richmond's case was further weakened
by their counsel's failure to file a response to Wright's Motion
to Determine Rule of Law regarding the admissibility of the
National Transportation Safety Board's aircraft accident
investigation report. Earlier in the litigation, it had been
established that the report did not expressly use the word
"negligence" or mention Wright in connection with the airplane
accident. The court subsequently entered an order precluding
admission of the report at trial.
4 The court awarded Wright attorney's fees of $7634,
paralegal costs of $8,442.50, and other costs of $595.10.
5 Wright cites no authority supporting the proposition
that the trial court had discretion to deny a properly executed
motion to withdraw that was filed by retained counsel in a civil
case and was based upon the express consent of the client. On
appeal, Wright nonetheless argues that the trial court correctly
found that McShea's "Withdrawal of Attorney Pursuant to Rule
81(d)(1)(iii)" was not "properly presented"because it was in
effect a notice of withdrawal rather than a motion for
withdrawal. However, in advancing this argument, Wright
disregards the fact that McShea's pleading expressly stated that
Devincenzi and Richmond "move for the Court's approval" of the
6 We do not suggest that the superior court would have
abused its discretion had the court denied the motion on its
merits after allowing McShea to withdraw. To the contrary, a
party's decision to dismiss retained counsel on the eve of trial
should not ipso facto entitle the party to a continuance.
Barrett v. Gagnon, 516 P.2d 1202, 1203 (Alaska 1973). Our
decision is narrowly based on the fact that the court's erroneous
disposition of the motion to withdraw adumbrated its denial of
the continuance, making it unnecessary for the court to rule on
the merits thereof. Under the peculiar circumstances of this
case, denial of the motion to continue simply did not involve a
7 As this issue is dispositive of the case, we need not
address Wright's other arguments.
8 It is, of course, unrealistic to expect that the
parties could be returned to the precise situation existing
before McShea's motion to withdraw was submitted. We emphasize,
however, that our decision reversing the judgment in this case
should not be construed as being intended to give Devincenzi and
Richmond a procedural advantage that they would not have enjoyed
had McShea been allowed to withdraw on the eve of trial.
Specifically, nothing in this decision should be construed to
vitiate any of the pretrial sanctions originally ordered by the
superior court or to require that the superior court reopen