TERRY P. SMITH, ADMINISTRATOR OF THE ESTATE OF MARY G. SMITH, DECEASED; TERRY P. SMITH, INDIVIDUALLY; AND MARISSA TIERRA SMITH, PLAINTIFFS v. BEAUFORT COUNTY HOSPITAL ASSOCIATION, INC., D/B/A BEAUFORT COUNTY HOSPITAL; NINA H. WARD, M.D.; BEAUFORT EMERGENCY MEDICAL ASSOCIATES, P.A.; FAMILY MEDICAL CARE, INC.; GEORGE KLEIN, M.D.; ELISABETH COOK, M.D.; AND DANNIE JONAS, PHYSICIAN ASSISTANT, P.A., DEFENDANTS
No. COA99-1575
IN THE COURT OF APPEALS OF NORTH CAROLINA
Filed 29 December 2000
141 N.C. App. 203 (2000)
The trial court‘s revocation of the pro hac vice admission of plaintiffs’ counsel affects a substantial right and is immediately appealable.
2. Attorneys— revocation of pro hac vice admission—no abuse of discretion
The trial court did not abuse its discretion in a medical negligence case by concluding that it could summarily revoke previously granted pro hac vice admission of plaintiffs’ counsel because the express language of
3. Evidence— judicial notice—number of highly skilled plaintiffs’ attorneys engaged in the trial of medical negligence actions in our state—number of times a Florida law firm participated in litigation in North Carolina
The trial court properly took judicial notice under
4. Attorneys— revocation of pro hac vice admission—no requirement of change in circumstances, misconduct, or other evidence to warrant revocation
The trial court did not abuse its discretion by revoking previously granted pro hac vice admission to plaintiffs’ counsel even though plaintiffs contend there was no change in circumstances, no misconduct, and no other evidence to warrant the revocation, because: (1) plaintiffs failed to cite North Carolina authority to show that a previously granted pro hac vice admission can only be revoked when there is a change in circumstances, misconduct, or other evidence to warrant the revocation, and no such standard exists in North Carolina; and (2)
5. Attorneys— revocation of pro hac vice admission—trial court‘s misapprehension of reciprocity statutes not prejudicial error
Although the trial court may have misapprehended North Carolina‘s and Florida‘s reciprocity statutes and incorrectly concluded that reciprocity does not exist between the two states, plaintiffs have not shown how this conclusion affected the ultimate result and the trial court still properly concluded that it had discretion to make its ruling to revoke a prior pro hac vice admission under
6. Attorneys— revocation of pro hac vice admission—misapprehension of letter or spirit of statute not prejudicial error
Although the trial court erred in a medical negligence case by its conclusion of law that neither the letter nor spirit of
7. Attorneys— revocation of pro hac vice admission—habitual practice of law
The trial court did not err in a medical negligence case by concluding that the conduct of a Florida law firm constituted the habitual practice of law, because: (1) there is competent evidence in the record to support the trial court‘s findings and conclusions based on the sixteen to nineteen prior pro hac vice admissions of the Florida firm in North Carolina; (2) an entire law firm can be treated as if it were a single lawyer for purposes of pro hac vice admission; (3) the trial court did not rely on a numeric limitation on pro hac vice appearances of out-of-state counsel as a basis for its decision; and (4) plaintiffs did not object to the evidence provided in an article that the Florida firm solicited business in this state.
Judge WYNN dissenting.
Appeal by plaintiffs from an order entered 13 September 1999 by Judge William C. Griffin, Jr. in Beaufort County Superior Court. Heard in the Court of Appeals 18 October 2000.
White and Crumpler, by Dudley A. Witt, for plaintiff-appellants.
Womble Carlyle Sandridge & Rice, PLLC, by Burley B. Mitchell, Jr., Mark A. Davis and Charles L. Becker, for defendant-appellees Beaufort County Hospital Association, Inc., d/b/a Beaufort County Hospital; Nina H. Ward, M.D.; Beaufort Emergency Medical Associates, P.A.; and Elisabeth Cook, M.D.
Patterson, Dilthey, Clay & Bryson, L.L.P., by Robert M. Clay and Charles George, for defendant-appellees Family Medical Care, Inc., George Klein, M.D. and Dannie Jonas, P.A.
HUNTER, Judge.
Terry P. Smith, individually and as administrator of the Estate of Mary G. Smith, and Marissa Tierra Smith (collectively, “plaintiffs“) appeal from a court order revoking and abrogating the original order granting pro hac vice admission to Bruce M. Wilkinson and Gloretta H. Hall (collectively, “plaintiffs’ counsel“).
In the assignments of error in their brief, plaintiffs claim the trial court (1) erred in concluding that it could summarily revoke previously granted pro hac vice admissions on the grounds that said
In May 1997, after having several headaches, Mary G. Smith, plaintiff Terry P. Smith‘s wife, made a series of trips to the hospital and her personal doctor‘s office. Beaufort County Hospital Association, Inc., Nina H. Ward, M.D., Beaufort Emergency Medical Associates, P.A., Family Medical Care, Inc., George Klein, M.D., Elisabeth Cook, M.D., and Dannie Jonas, P.A. (collectively, “defendants“), all health care providers, each had a role in the care of Mrs. Smith, and each allegedly failed to diagnose her ailment. Subsequently, Mrs. Smith died on 14 June 1997. As a result, plaintiffs brought forth a medical negligence suit against defendants.
Prior to instituting the action, plaintiff Terry P. Smith approached attorney Mark V. L. Gray in regards to the suit. Having no experience in trying medical negligence cases, Mr. Gray solicited the assistance of at least two Greensboro, North Carolina attorneys; both of which declined to assist. Mr. Gray then sought the assistance of the Gary Law Firm, which is based in Stuart, Florida. Plaintiffs’ counsel are members of that firm, and are not licensed to practice law in North Carolina. In fact, the Gary Law Firm does not have any attorney admitted to practice law in our state. Plaintiffs’ counsel agreed to aid plaintiffs in their case, and they subsequently assisted Mr. Gray in complying with some preliminary matters involved in filing the complaint.
On 3 May 1999, Mr. Gray initiated the suit on plaintiffs’ behalf, and on the same date, he filed motions to have plaintiffs’ counsel admitted pro hac vice pursuant to
A hearing was held before the Honorable William C. Griffin, Jr., in Beaufort County Superior Court on 11 August 1999. At that hearing, defendants, arguing to have plaintiffs’ counsel‘s pro hac vice status revoked, contended that the Gary Law Firm habitually practices law in North Carolina, and that plaintiffs violated North Carolina Rule of Civil Procedure 5(a) by failing to serve the pro hac vice motions on defendants and by seeking an ex parte order.
To support their claims, defendants proffered a list that suggested various members of the Gary Law Firm had been admitted pro hac vice in the courts of North Carolina approximately nineteen times, an article that reported that a member of the Gary Law Firm distributed promotional materials to undertakers in our state, and a Lee County court order involving attorneys from the Gary Law Firm. Plaintiffs did not object or take exception to any of the submitted evidence. On 13 September 1999, Judge Griffin entered an order revoking and abrogating Judge Allsbrook‘s earlier order. Thereafter, plaintiffs filed their notice of appeal.
[1] In a preliminary matter to this appeal, plaintiffs contend that the trial court‘s revocation of plaintiffs’ counsel‘s pro hac vice admission affects a substantial right and is immediately appealable. On this contention, we agree.
In the past, we have held that “once [an] attorney was admitted under [
We acknowledge defendants’ argument in their briefs that plaintiffs’ counsel had never been properly admitted pro hac vice under
“[T]he scope of review on appeal is limited to those issues presented by assignment of error in the record on appeal.” Koufman v. Koufman, 330 N.C. 93, 98, 408 S.E.2d 729, 731 (1991);
Any attorney domiciled in another state, and regularly admitted to practice in the courts of record of that state and in good standing therein, having been retained as attorney for a party to any civil or criminal legal proceeding pending in the General Court of Justice of North Carolina . . . may, on motion, be admitted to practice in that forum for the sole purpose of appearing for a client in the litigation. The motion required under this section shall contain or be accompanied by:
. . .
(2) A statement, signed by the client . . . declaring that the client has retained the attorney to represent the client in the proceeding.
. . .
(4) A statement that the state in which the attorney is regularly admitted to practice grants like privileges to members of the Bar of North Carolina in good standing.
. . .
The purpose of
“Admission of counsel in North Carolina pro hac vice is not a right but a discretionary privilege.” Leonard v. Johns-Manville Sales Corp., 57 N.C. App. 553, 555, 291 S.E.2d 828, 829 (1982). ” ‘It is permissive and subject to the sound discretion of the Court.’ ” Id. (quoting Hunter, 290 N.C. at 568, 227 S.E.2d at 542).
[2] Having determined the nature and purpose of
Two primary arguments are incorporated in this assignment of error: (1) that the trial court‘s conclusion that it could summarily revoke plaintiffs’ counsel‘s pro hac vice admission was contrary to existing law, and (2) that this conclusion was an abuse of discretion. Again, we disagree.
First, we recognize that, “ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.” Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). However, under the circumstances of
Specifically,
In enacting
Plaintiffs’ assignment of error also encompasses the argument that Judge Griffin‘s order summarily revoking the pro hac vice admission of plaintiffs’ counsel was an abuse of discretion.
It is well settled that “[a]ppellate review of matters left to the discretion of the trial court is limited to a determination of whether there was a clear abuse of discretion.” Riviere v. Riviere, 134 N.C. App. 302, 306, 517 S.E.2d 673, 676 (1999); see also White v. White, 312 N.C. 770, 777, 324 S.E.2d 829, 833 (1985). Furthermore, “[a] trial court may be reversed for abuse of discretion only upon a showing that its actions are manifestly unsupported by reason.” White, 312 N.C. at 777, 324 S.E.2d at 833. “A ruling committed to a trial court‘s discretion is to be accorded great deference and will be upset only upon a showing that it was so arbitrary that it could not have been the result of a reasoned decision.” Id.
Here, plaintiffs attack Judge Griffin‘s conclusion of law that he was “empowered by
[3] Plaintiffs further raise two sub-points here. Specifically, plaintiffs argue Judge Griffin erred in taking judicial notice of facts without providing plaintiffs an opportunity to be heard; for example, plaintiffs claim that Judge Griffin (1) took notice of the fact that there are a large number of highly skilled plaintiff‘s attorneys engaged in the trial of medical negligence actions in North Carolina, and (2) Judge Griffin relied on facts that he obtained from the North Carolina State Bar Association and plaintiffs had no opportunity to confirm or refute the information.
As to both sub-points,
Based on
Furthermore, plaintiffs failed to timely request an opportunity to be heard as per
[4] Analogous to plaintiffs’ above arguments is plaintiffs’ next assignment of error that claims the trial court abused its discretion
Plaintiffs cite no North Carolina authority for their supposition that a previously granted pro hac vice admission can only be revoked when there is a change in circumstances, misconduct, or other evidence to warrant the revocation. In fact, no such standard is recognized in North Carolina. As discussed supra,
We note that based on
[5] Thus, we consider plaintiffs’ third assignment of error that the trial court erred in its conclusion of law that reciprocity of admission does not exist between Florida and North Carolina because Florida‘s pro hac vice requirements differ from North Carolina‘s. Plaintiffs argue that said conclusion is contrary to existing law. Again, we reject plaintiffs’ assignment of error.
Judge Griffin may have misapprehended North Carolina‘s and Florida‘s reciprocity statutes and incorrectly concluded that reciprocity does not exist between the two states. However, if a court‘s ruling was based upon a misapprehension of law, “[i]f the misapprehension of the law does not affect the result . . . the judgment will not be reversed.” Bowles Distributing Co. v. Pabst Brewing Co., 69 N.C. App. 341, 348, 317 S.E.2d 684, 689 (1984).
Plaintiffs have not shown how this conclusion affected the ultimate result as, regardless of the error, Judge Griffin still properly concluded that he had the discretion to make his ruling pursuant to
Lastly, plaintiffs’ final two assignments of error take issue with particular findings of fact and conclusions of law found in Judge Griffin‘s order. We note that
We have long held that “appellate review of findings of fact and conclusions of law made by a trial judge . . . is limited to a determination of whether there is competent evidence to support his findings of fact and whether, in light of such findings, [the judge‘s] conclusions of law were proper.” Starco, Inc. v. AMG Bonding and Ins. Services, 124 N.C. App. 332, 335, 477 S.E.2d 211, 214 (1996). “[I]f the evidence tends to support the trial court‘s findings, these findings are binding on appeal, even though there may be some evidence to support findings to the contrary.” Id. Moreover, “to obtain relief on appeal, an appellant must not only show error, but that appellant must also show that the error was material and prejudicial, amounting to denial of a substantial right that will likely affect the outcome of an action.” Id.
In their final assignments of error, plaintiffs claim that the trial court erred (1) in its conclusion of law that neither the letter nor spirit of
[6] In assignment of error four, plaintiffs take issue with Judge Griffin‘s findings that (1) the Gary Law Firm was not chosen by plaintiffs, and (2) the provisions of
First, as to Judge Griffin‘s finding that the Gary Law Firm was not chosen by plaintiffs, while there is some contrary evidence to the court‘s finding, competent evidence—i.e. the court‘s finding that Mr. Gray recruited the Gary Law Firm—exists in the record to support the trial court‘s initial finding. However, this finding has no bearing in the overall analysis of
More important is the court‘s finding that the provisions of
In determining whether the requirements of
[7] In their final assignment of error, plaintiffs assert that Judge Griffin held several incorrect notions, among them (1) that a law firm can be admitted to practice pro hac vice in this state, (2) that
First, Judge Griffin‘s conclusion of law was that, “[t]he conduct of the Gary Law Firm and its members in North Carolina constitutes the habitual practice of law” (emphasis added). Judge Griffin does not find or conclude, as plaintiffs allege, that a law firm can be admitted pro hac vice or habitually practice law in this state. In his order, Judge Griffin found that “various members of the Gary Law Firm have repeatedly been admitted pro hac vice, at the least sixteen (16) times” and “[t]he Gary Law Firm (and its members) has habitually practiced law in North Carolina,” (emphasis added). Judge Griffin made no findings of fact or conclusions of law as to the Gary Law Firm‘s individual practice of law, instead he continually referred to
As a side-note, we address the issue of the actions of a law firm being imputed to its member attorneys for purposes of pro hac vice admission in this state. We recognize that this issue is a matter of first impression in North Carolina, and rightfully we approach it with caution. After much consideration, we hold that for purposes of pro hac vice admission only, an entire law firm can be treated as if it were a single lawyer, and thus the actions of the firm imputed to its members (similar to the North Carolina ethical rule on imputed disqualification,
As to plaintiffs’ contention that Judge Griffin concluded that
Finally, Judge Griffin‘s finding that the Gary Law Firm solicited business in this state is based on the article submitted by defendants at the 11 August 1999 hearing. Plaintiffs had the chance and did not object to the article at the hearing. Thus, the record supports this finding of the trial court as well.
In summary as to these final assignments of error, Judge Griffin‘s findings of fact are supported by competent evidence in the record, even though some contrary evidence may also exist. Furthermore, although Judge Griffin may have misapprehended the law in part, his errors were not prejudicial, and his other conclusions were valid and
Moreover, plaintiffs have failed to show how the alleged errors made by the trial court can overcome the discretion allowed Judge Griffin pursuant to
We conclude by stating that “parties do not have a right to be represented in the courts of North Carolina by counsel who are not duly licensed to practice in this state.” Leonard, 57 N.C. App. 553, 555, 291 S.E.2d 828, 829. Unlike Goldston discussed supra, which involved litigation that had been ongoing for several years and an attorney who had a national reputation in handling products liability cases against a particular defendant, this litigation is still in its infancy, and plaintiffs’ counsel does not hold any unique expertise that cannot be found elsewhere in our state bar. Goldston, 326 N.C. 723, 392 S.E.2d 735. Further, plaintiffs would not be prejudiced by seeking local counsel, as we are confident that the North Carolina State Bar has many competent attorneys, proficient in medical negligence cases, that would be able to continue plaintiffs’ cause without any harm to plaintiffs.
In summary, plaintiffs’ appeal affects a substantial right and is properly before this Court. Judge Griffin had the authority and discretion pursuant to
Affirmed.
Judge LEWIS concurs.
Judge WYNN dissents in a separate opinion.
Judge WYNN dissenting.
The gravamen of the plaintiffs’ assignments of error is that the trial court improperly revoked Judge Allsbrook‘s order granting
As our Supreme Court has stated: “[O]nce [an] attorney [is] admitted under [
In Travco Hotels, Inc. v. Piedmont Natural Gas Co., Inc., 332 N.C. 288, 420 S.E.2d 426 (1992), our Supreme Court discussed the appealable nature of an order granting a motion to disqualify counsel, stating that such orders,
ha[ve] immediate and irreparable consequences for both the disqualified attorney and the individual who hired the attorney. The attorney is irreparably deprived of exercising his right to represent a client. The client, likewise, is irreparably deprived of exercising the right to be represented by counsel of the client‘s choice.
332 N.C. at 293, 420 S.E.2d at 429.
Therefore, upon the entry of Judge Allsbrook‘s order granting pro hac vice admission to Bruce Wilkinson and Gloretta Hall, the plaintiffs acquired “a substantial right to the continuation of representation by” them. Goldston, 326 N.C. at 727, 392 S.E.2d at 737. Goldston implies that a plaintiff has an equal right to continued representation whether counsel is admitted to practice in this State or is granted admission pro hac vice pursuant to
In Travco, our Supreme Court held that “[d]ecisions regarding whether to disqualify counsel are within the discretion of the trial judge and, absent an abuse of discretion, a trial judge‘s ruling on a motion to disqualify will not be disturbed on appeal.” Travco, 332 N.C. at 295, 420 S.E.2d at 430 (citing In re Lee, 85 N.C. App. 302, 310, 354 S.E.2d 759, 764-65, disc. review denied, 320 N.C. 513, 358 S.E.2d 520 (1987)). The plaintiffs, therefore, contend that Judge Griffin‘s order revoking the pro hac vice admission of plaintiffs’ counsel constituted an abuse of discretion. The majority rejects this contention; I, however, believe the contention has merit.
The majority recognizes that “ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.” Calloway v. Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972). While
I disagree further with the majority‘s holding that, for purposes of pro hac vice admission under
In State v. Hunter, 290 N.C. 556, 227 S.E.2d 535 (1976), cert. denied, 429 U.S. 1093, 51 L. Ed. 2d 539 (1977), our Supreme Court quoted with approval language from Manning v. Railroad, 122 N.C. 824, 828, 28 S.E. 963, 964 (1898), stating that North Carolina law “forbids the courts from allowing non-resident counsel . . . from practicing habitually in our courts.” Furthermore,
Judge Griffin‘s order was based at least in part on his finding that “[t]he Gary Law Firm (and its members) has habitually practiced law in North Carolina,” and Judge Griffin concluded that “[t]he conduct of the Gary Law Firm and its members in North Carolina constitutes the habitual practice of law.” I disagree with the implication that a law firm, as opposed to an individual member of a law firm, may be admitted pro hac vice to practice before our courts, or that a law firm can be found to have habitually practiced law in North Carolina. To the extent Judge Griffin‘s order was based upon this conclusion of law, I believe the order constitutes an abuse of discretion.
Furthermore, the majority concedes that Judge Griffin‘s order was based in part on the erroneous conclusion that “[n]either the letter nor the spirit of