                        STATE OF MICHIGAN

                        COURT OF APPEALS


In re CONSERVATORSHIP OF MADLIEN KHAMI.


IRENE MAHTANEY,                            UNPUBLISHED
          Petitioner-Appellant,            May 10, 2016

and

ROGER KHAMI,
         Petitioner,

v                                          No. 323401
                                           Oakland Probate Court
MADLIEN KHAMI,                             LC No. 2014-354962-CA
          Respondent-Appellee,

and

MICHAEL KHAMI, JAMES KHAMI, JOHN
KHAMI, DIANE MANSOOR, CAROL
JOHNSON, THERESA BRUNE, ROBERT
KHAMI, CHRISTINE KHAMI, and ROBERT
DICKENSON,
          Interested Parties.


In re GUARDIANSHIP OF MADLIEN KHAMI.


ROGER KHAMI,
         Petitioner-Appellant,

and

IRENE MAHTANEY,
          Petitioner,

v                                          No. 326827
                                           Oakland Circuit Court
MADLIEN KHAMI,                             LC No. 2014-142636-AV
          Respondent-Appellee.

                                     -1-
Before: BOONSTRA, P.J., and METER and BECKERING, JJ.

PER CURIAM.

        Petitioners, children of respondent Madlien Khami, filed separate petitions to be
appointed guardian and conservator of their mother. Following an evidentiary hearing, the
probate court denied both petitions. In Docket No. 323401, petitioner Irene Mahtaney (“Irene”)
appeals by right the probate court’s order denying her petition for appointment as respondent’s
conservator. In Docket No. 326827, petitioner Roger Khami (“Roger”) appeals by leave
granted1 the circuit court’s order affirming the probate court’s denial of his petition for
appointment as Khami’s guardian. This Court consolidated the appeals.2 We vacate the circuit
court’s order in Docket No. 326827 and the probate court’s orders in both dockets, and remand
to the probate court for further proceedings.

                     I. PERTINENT FACTS AND PROCEDURAL HISTORY

        Attorney Elias Escobedo originally represented both petitioners in the probate court
proceedings. The petitions were filed on February 14, 2014. In March 2014, a contested hearing
on the petitions was adjourned by stipulated order from March 5, 2014 to March 19, 2014. On
March 14, 2014, petitioner filed her objections to Irene’s petition; the record reflects that the
contested hearing was then adjourned to April 16, 2014. However, on March 21, 2014, the trial
court issued a scheduling order setting the date of contested hearing on both petitions for May
14, 2014 and ordering parties first to engage in mediation. The mediation commenced on May 5,
2014, but was not then concluded, and on May 7, 2014, the probate court adjourned the hearing
and issued an amended scheduling order setting a new hearing date of June 18, 2014. A second
amended scheduling order was filed on May 9, 2014 that also listed the new hearing date as
June 18, 2014. All scheduling orders issued stated that the contested hearing could only be
adjourned for good cause.

        On June 13, 2014, Escobedo filed an emergency motion to adjourn the contested hearing.
Escobedo informed the court that, after mediation, petitioners were not satisfied with a proposed
protective order to settle their claims and, as of June 6, 2014, they wanted to proceed with the
contested hearing. The motion further stated that, on June 6,3 Escobedo advised petitioners that
he felt he could no longer assist them in this action, and that they advised that they would seek
substitute counsel. However, they had not yet retained new counsel as of June 13, 2014 and, in
fact, Escobedo indicated that he learned on that date that a prospective new counsel had declined
to represent petitioners in this action. Escobedo represented that he had commenced trial in
another action in Bay City on June 10, 2014, and that the trial was expected to continue through



1
 In re Conservatorship of Madlien Khami, unpublished order of the Court of Appeals, issued
October 7, 2015 (Docket No. 326827).
2
    Id.
3
    The record is unclear whether the actual date was June 6, 2014 or June 9, 2014.


                                                 -2-
June 25, 2014. Escobedo asked the court to adjourn the scheduled June 18, 2014 hearing to
allow petitioners time to retain new counsel. The probate court never issued a ruling on that
motion.

        On June 17, 2014, Escobedo filed a motion to withdraw as counsel, asserting in virtually
identical terms the grounds he had asserted in support of the earlier motion to adjourn, noting (in
lieu of referencing his scheduling conflict) the filing of that emergency motion to adjourn on
June 13, 2014, and further asserting that “[t]he undersigned [Escobedo] believes there had been a
substantial breakdown in the attorney-client relationship.”

        Also on June 17, 2014 (i.e., the day of the filing of the motion to withdraw), the probate
court entered an order granting Escobedo’s motion to withdraw. The next morning, i.e., at the
outset of the June 18, 2014 contested hearing, Irene requested that the trial court adjourn the
hearing for 30 days to allow both petitioners to obtain new counsel. She represented, under oath,
that petitioners were notified on June 9, 2014 of Escobedo’s scheduling conflict and inability to
continue to assist them. She further testified that petitioners had “worked really hard throughout
the week” to obtain substitute counsel, and that they had met with an attorney a few days before
the hearing; however, she stated that “[b]eing that we had such a very close court date, they
would not be able to represent us in court, but I am confident we would be able to hire an
attorney within a 30-day period of time.” Irene further testified that petitioners were not
prepared to call witnesses at the hearing. Respondent’s counsel opposed any further
adjournment because there had already been an agreed-upon adjournment (to allow continued
mediation), because respondent was prepared to proceed with the hearing and with the calling of
witnesses, and because the proceedings were having detrimental effects on respondent.
Respondent also relied on Escobedo’s motion to withdraw and pointed out that the motion
indicated that Escobedo had advised petitioners on June 6th that he would no longer be able to
assist them. The court proceeded with the hearing, at which petitioners acted as their own
counsel. At the conclusion of the hearing, the court found that petitioners had not proven their
allegations, and dismissed their petitions without prejudice.4




4
  We reject respondent’s argument that these appeals are moot because she had previously
selected other children to act as her patient advocate and her attorney-in-fact under a durable
power of attorney, and that these selections obviate the need for a conservator or guardian. A
conservator may be appointed for a principal who has previously executed a durable power of
attorney. In that event, the attorney-in-fact is accountable to the fiduciary, as well as the
principal, and the fiduciary has the same power to revoke or amend the power of attorney as the
principal. MCL 700.5503(1). Further, it is clear from MCL 700.5306(2) that the court may
grant a petition for guardianship of an incapacitated person who has previously made a patient
advocate designation. The statute provides that the authority of the guardian will depend on “the
demonstrated need of the incapacitated individual,” but that the court “shall not grant a guardian
any of the same powers that are held by the patient advocate.” Id. In some circumstances,
however, the court may modify the guardianship’s terms to grant the patient advocate’s powers
to the guardian. MCL 700.5306(4). Thus, respondent’s previous appointments of other children


                                                -3-
                       II. ESCOBEDO’S WITHDRAWAL AS COUNSEL

       Petitioners first argue that the trial court erred in allowing Escobedo to withdraw as
counsel on June 17, 2014, one day before the scheduled contested hearing. A trial court’s
decision on an attorney’s motion to withdraw is reviewed for an abuse of discretion. In re
Withdrawal of Attorney, 234 Mich App 421, 431; 594 NW2d 514 (1999).5

        Once an attorney has entered an appearance, he may withdraw from the action only on
order of the court. Coble v Green, 271 Mich App 382, 386; 722 NW2d 898 (2006);
MCR 2.117(C)(2). Although the Michigan Rules of Professional Conduct are applicable to
attorney discipline proceedings and thus do not expressly apply to a counsel’s motion to
withdraw, courts will consider a request to withdraw within the framework of the professional
code. Withdrawal of Attorney, 234 Mich App at 432. A lawyer may withdraw “if withdrawal
can be accomplished without material adverse effect on the interests of the client.”
MRPC 1.16(b). Even if the withdrawal might have an adverse effect on the client’s interests, a
lawyer may still withdraw where the client insists on pursuing a repugnant or imprudent
objective, the client fails to fulfill an obligation to the lawyer regarding the lawyer’s services, the
representation will result in an unreasonable financial burden on the lawyer or has been rendered
unreasonably difficult by the client, or for other good cause. MRPC 1.16(b)(3),(4), (5), and (6).
This Court has recognized “the importance of balancing counsel’s obligation to the client, the
extent of the financial burden [to the attorney], and the availability of substitute counsel” when
an attorney requests a withdrawal. A lawyer has good cause to withdraw where there has been a
total breakdown in the attorney-client relationship. See Ambrose v Detroit Edison Co, 65 Mich
App 484, 488; 237 NW2d 520 (1975).

        In this case, Escobedo waited until the day before the scheduled hearing to move to
withdraw. Further, although he had requested an adjournment to allow his clients to seek
substitute counsel, the court had not ruled on that motion. Escobedo’s withdrawal motion stated
that, as of June 13, 2014, petitioners had not yet obtained new counsel, and that, on that date, a
prospective substitute counsel had declined to represent petitioners. Finally, the motion stated
only that Escobedo had advised petitioners that “he felt he could no longer assist the parties in
this action” and that he “believes “there has been a substantial breakdown in the attorney-client
relationship.”

        Petitioners argue that by withdrawing one day before the contested hearing, Escobedo
effectively abandoned his representation of petitioners. Petitioners rely on Pascoe v Sova, 209
as her patient advocate and her attorney-in-fact do not preclude the appointment of a guardian
and conservator for respondent.
5
  With regard to Docket No. 326827, this Court reviews de novo a circuit court’s affirmance of a
probate court’s denial of a motion. See First of America Bank v Thompson, 217 Mich App 581,
583; 552 NW2d 516 (1996). Thus, we essentially sit in the same position as the circuit court and
review the probate court’s rulings in the same manner as the circuit court to determine whether
the probate court abused its discretion. See People v Hudson, 241 Mich App 268, 276; 615
NW2d 784 (2000). We therefore review both petitioners’ arguments under the same standard,
notwithstanding the appeal to the circuit court in Docket No. 326827.


                                                 -4-
Mich App 297; 530 NW2d 781 (1995), in which this Court reversed a default judgment for the
plaintiff after the trial court granted the defendant’s attorney’s motion to withdraw on the day
scheduled for trial and the defendant failed to present any evidence at trial to rebut the plaintiffs’
evidence. This Court determined that the “key factor” entitling the defendant to relief was that
the defendant’s attorney never provided notice to the defendant of his intent to withdraw. Id. at
300. Further, “[d]espite defendant’s apparent lack of interest in participating in his own defense,
he was entitled to assume that he would be represented at trial.” Id. This Court equated the
attorney’s withdrawal, without notice to the defendant, as “complete abandonment of
representation.” Id. at 300-301.

        This case is not factually identical to Pascoe. As discussed previously, petitioners did not
dispute that Escobedo had advised them before the hearing of his scheduling conflict and
inability to continue to assist them, and that they were therefore attempting to find new counsel.
In addition to providing petitioners with this advance notice, and obtaining the probate court’s
approval of his withdrawal, Escobedo also filed an earlier emergency motion to adjourn the
hearing in an attempt to provide petitioners with more time to find new counsel. However,
Escobedo knew in filing his emergency motion to withdraw that his clients had not found new
counsel and that the trial court had not ruled on his motion to adjourn the hearing scheduled for
the very next day. Although Escobedo advised petitioners of his withdrawal request, they did
not learn that the trial court had granted Escobedo’s motion to withdraw until the afternoon
before the contested hearing. They were entitled to assume that Escobedo still represented them
until their relationship was ended. See Bye v Ferguson, 138 Mich App 196, 206; 360 NW2d 175
(1984). Further, the record indicates that Escobedo had not filed a trial brief or an exhibit list in
advance of the contested hearing, as required by the scheduling order, although he had filed a
witness list. Nor did Escobedo subpoena any witnesses for the hearing. It would hardly be
surprising if such a lack of preparation for an imminent evidentiary hearing may have influenced
prospective substitute counsel’s decision to decline to take on the representation of petitioners so
close in time to the scheduled contested hearing.6

        Finally, there is little if any basis in Escobedo’s motion to establish that there had in fact
been a breakdown of the attorney client relationship sufficient to constitute good cause for
withdrawal. The fact that petitioners rejected a proposed protective order following mediation
and wished to proceed with the scheduled contested hearing does not establish a breakdown in
the attorney-client relationship. To the contrary, this scenario is a far cry from a total breakdown
in the attorney-client relationship, inasmuch as “the client has control of the lawsuit and can
refuse even the most reasonable settlement offer.” Ambrose, 65 Mich App at 524. Thus, “[t]he
refusal to settle by a client can never be sufficient grounds to constitute ‘good cause’ for an
attorney to withdraw,” although it may be considered as one of the factors in evaluating the level
of cooperation that exists between attorney and client. Id. Escobedo’s motion lists no other
factors, apart from referencing his filing of a motion to adjourn that was premised on a


6
  Irene represents under oath that, “[a]fter considering the matter and learning from the court that
it would not adjourn the matter, that lawyer informed us that they were not willing to represent
us on such short notice before the June 18 hearing.”


                                                 -5-
scheduling conflict with the date of the contested hearing, which issue could have been resolved
in the context of addressing the motion to adjourn. Under these circumstances, we conclude that
the trial court’s grant of Escobedo’s motion to withdraw, at least when considered in the context
of the trial court’s refusal to grant an adjournment, was an abuse of discretion. Withdrawal of
Attorney, 234 Mich App at 432.

                                      II. ADJOURNMENT

       Petitioners also challenge the probate court’s denial of their motion for a 30-day
adjournment to obtain new counsel. This Court reviews a trial court’s decision denying an
adjournment for an abuse of discretion. Soumis v Soumis, 218 Mich App 27, 32; 553 NW2d 619
(1996). A trial court abuses its discretion when its decision falls outside the range of principled
outcomes. Woodard v Custer, 476 Mich 545, 557; 719 NW2d 842 (2006).

        The probate court’s scheduling order provided that an adjournment was not available
unless “by motion if good cause is shown.” That is consistent with MCR 2.503(B)(1).
Generally, three factors should be considered in determining whether to grant or deny a motion
for an adjournment, including: (1) the number of past continuances, (2) the failure of the movant
to exercise due diligence, and (3) the lack of injustice to the movant. See Tisbury v Armstrong,
194 Mich App 19, 20; 486 NW2d 51 (1991); Roseroot v Muskegon Co, 123 Mich App 361, 371;
333 NW2d 282 (1983), quoting Hackett v Connor, 58 Mich App 202, 206; 227 NW2d 292
(1975).

        Again, the probate court in this case granted Escobedo’s motion to withdraw just one day
before the contested hearing. While petitioners did not dispute that they had actual notice more
than a week in advance that Escobedo felt he could no longer assist them, they were unable to
retain new counsel so soon before the scheduled contested hearing. The probate court denied the
adjournment because respondent’s witnesses were present, because the hearing had already been
adjourned, and because respondent’s counsel indicated that the proceedings were detrimentally
affecting respondent. The record does indicate a number of previous adjournments; however, the
record does not reflect that petitioners had ever requested and received an adjournment over
respondent’s objections, or indeed that they were even the driving force behind the
adjournments. Rather, at least some of the adjournments were the product of mutual agreement,
and the final agreed-upon adjournment was made to allow sufficient time for mediation.

       Further, petitioners were diligent both in seeking new counsel and in requesting an
adjournment within one day of learning that the court had granted Escobedo’s motion to
withdraw. Additionally, Escobedo was diligent in previously requesting an adjournment via
emergency motion after he learned that prospective counsel had declined to take the case;
according to Irene’s testimony, this declination was occasioned by the imminent hearing date.
The probate court never ruled on Escobedo’s motion to adjourn.

        Finally, petitioners were substantially hampered by their lack of counsel at the contested
hearing, and we conclude that this resulted in an injustice to petitioners. Petitioners’ lack of
familiarity with the rules of evidence resulted in numerous sustained objections on direct and
cross-examination, and appears to have resulted in petitioners essentially abandoning their efforts
to elicit testimony in some instances. Further, petitioners repeatedly requested that they be

                                                -6-
allowed time to secure witnesses who were not in attendance and had not been subpoenaed,
which requests the probate court denied. In some instances, it does not appear that petitioners
had a firm grasp on how to prove the legal theories underlying their petitions; for example,
Irene’s direct examination of Robert Khami attempted to elicit testimony designed to show that
respondent had been coerced into changing her estate plan, rather than focusing on whether
respondent lacked the capacity to make such decisions.

        Considering all of the circumstances, we conclude that there was good cause for an
adjournment, and that the probate court erred in declining to grant an adjournment, either in
response to Escobedo’s motion or in response to petitioners’ request at the outset of the hearing,
at least in conjunction with the court’s grant of Escobedo’s motion to withdraw. Soumis, 218
Mich App at 32.

        Because we have concluded that the probate court abused its discretion as discussed
above, we need not address petitioners’ other arguments. However, we note that the abuse of
discretion resulted from the confluence of two decisions: the granting of the motion to withdraw
and the denial of an adjournment. The combined effects of these decisions therefore could have
been ameliorated by a different decision on either of the issues, e.g., if the probate court had
granted Escobedo’s motion to adjourn, it may not have abused its discretion in granting his
motion to withdraw. On remand, the probate court should consider the current state of
petitioners’ representation and fashion a remedy accordingly.

       Accordingly, we vacate the circuit court’s order in Docket No. 326827 and the probate
court’s orders in both dockets, and remand to the probate court for further proceedings in
accordance with this opinion. We do not retain jurisdiction.



                                                            /s/ Mark T. Boonstra
                                                            /s/ Patrick M. Meter
                                                            /s/ Jane M. Beckering




                                               -7-
