Herrmann v. Summer Plaza Corp., 12696

• Decision Date: 26 August 1986
• Docket Number: No. 12696,12696
• Citation: 201 Conn. 263,513 A.2d 1211
• Court: Connecticut Supreme Court
• Parties: Mary M. HERRMANN v. SUMMER PLAZA CORPORATION et al.

Page 1211

513 A.2d 1211

201 Conn. 263

Mary M. HERRMANN v. SUMMER PLAZA CORPORATION et al.

No. 12696.

Supreme Court of Connecticut.

Argued March 5, 1986.

Decided Aug. 26, 1986.

William S. Herrmann, Stamford, with whom, on brief, was Ellen L.F. Strauss, Weston, for appellant (plaintiff).

Frank H. D'Andrea, Jr., with whom, on brief, was Brian D. Rosenfeld, Stamford, for appellees (defendants).

Before PETERS, C.J., and SHEA, DANNEHY, SANTANIELLO and CALLAHAN, JJ.

SANTANIELLO, Associate Justice.

In this action for breach of contract and negligence, the plaintiff, Mary Herrmann, sought money damages from the defendants, Summer Plaza Corporation and Louis Evangelista. On the day the case was to be tried, the court dismissed the action. The plaintiff appeals, arguing principally that the trial court erred: (1) in denying her application for appointment of counsel pro hac vice; and (2) in dismissing her action pursuant to Practice Book § 251 for failure to prosecute with diligence. We find no error.

A review of the record has revealed the following facts. On August 2, 1979, the plaintiff instituted this boundary and surface water cause of action by obtaining a prejudgment remedy attachment. Pleadings were subsequently filed by both sides and issue was joined on May 23, 1980. A jury claim was filed by the plaintiff May 22, 1980, followed by the defendants' claim for the trial list on May 23, 1980. Subsequently, numerous miscellaneous motions were filed for the purpose of gathering information in preparation for trial. The matter reached the assignment list and was assigned for trial on January 18, 1985. On that date, the plaintiff raised several objections to starting trial, primarily claiming that discovery had not been fully complied with, and that she had not received a transcript of a deposition taken approximately five weeks earlier. After much discussion in open court before West, J., the plaintiff's counsel, John J. Berger, represented that he would be willing and able to proceed in two weeks time. ¹ The court granted the plaintiff's request for a continuance and reassigned the case for trial on January 31, 1985.

On January 28, 1985, new counsel, Ellen L.F. Strauss, entered a general appearance for the plaintiff in lieu of Berger. On the date set for trial, January 31, 1985, Strauss presented to the court an application for appearance pro hac vice of New York counsel, John F. Martin. While presenting the petition in court, Strauss informed the court that Martin was on trial in New York and would not be available to try this case until some time the following week. The court denied the application and ordered the trial to proceed. Strauss refused to participate, however, and stated to the court that "I don't feel qualified or ready to try the case, [and] it would not be fair to the plaintiff, in addition to the fact that it would put me in a bad position with the plaintiff. I submit that the plaintiff is entitled to her attorney of choice to try this case. Plaintiff fully expected The Court to grant the plaintiff's motion for Attorney Martin to come in. I again respectfully affirm to The Court that I cannot go forward." The court inquired "even if I bring the jury in here and introduce them and so forth, when it comes to the time when you're to speak, you will remain silent, is that what you are indicating?" Strauss responded "Yes." At that point, the defendants orally requested that "this case either be non-suited or pursuant to section 274 and 251 be dismissed." ² Thereafter, the court rendered judgment the action "pursuant to the provisions of Practice Book Sec. 274 and under the authority granted by Practice Book Sec. 251." It is from this judgment of dismissal that the plaintiff appeals.

I

The plaintiff's first claim is that the court erred when it denied her application for the appointment pro hac vice of New York counsel.

Practice Book § 24 provides in part: "An attorney who is in good standing at the bar of another state ... may, upon special and infrequent occasion and for good cause shown upon written application presented by a member of the bar of this state, be permitted in the discretion of the court to participate to such extent as the court may prescribe in the presentation of a cause or appeal.... Where feasible, the application shall be made to the judge before whom such cause is likely to be tried. Good cause for according such privilege shall be limited to facts or circumstances affecting the personal or financial welfare of the client and not the attorney. Such facts may include a showing that by reason of a longstanding attorney-client relationship predating the cause of action or subject matter of the litigation at bar, the attorney has acquired a specialized skill or knowledge with respect to the client's affairs important to the trial of the cause, or that the litigant is unable to secure the services of Connecticut counsel." This section sets forth the procedure to be followed in making such an application. The plaintiff in this case made no attempt to show good cause. Ordinarily, "the mere fact that a client desires out-of-state counsel to represent him in the courts of this state is not sufficient reason, in and of itself, to warrant granting such permission...." Silverman v. St. Joseph's Hospital, 168 Conn. 160, 175, 363 A.2d 22 (1975).

"[S]tate courts possess the inherent power to regulate admission to the bar. See Leis v. Flynt, 439 U.S. 438, 443, 99 S.Ct. 698, 701, 58 L.Ed.2d 717 (1979); State v. Reed, 174 Conn. 287, 293, 386 A.2d 243 (1978). Included within the general regulatory power is the right to establish guidelines for determining when an out-of-state attorney should be admitted pro hac vice. Leis v. Flynt, supra; State v. Reed, supra. Practice Book § 24 sets out the guidelines for Connecticut judges to follow when reviewing an application for admission pro hac vice: The application must be sponsored by an attorney licensed to practice in this state, who will assume 'full responsibility' for the applicant's conduct. The applicant must be an attorney in 'good standing at the bar of another state,' and there must be good cause shown for admission. The decision to grant or deny an application to appear pro hac vice rests within the sound discretion of the court. See State v. Reed, supra, 174 Conn. 291-94, 386 A.2d 243; Silverman v. St. Joseph's Hospital, [supra,]; see also Silverman v. Browning, 414 F.Sup. 80 (D.Conn.), aff'd, 429 U.S. 876, 97 S.Ct. 228, 50 L.Ed.2d 162 (1976)." Enquire Printing & Publishing Co. v. O'Reilly, 193 Conn. 370, 373-74, 477 A.2d 648 (1984). The court must not abuse its discretionary powers, however, and reject the petition without giving due consideration to the petitioner's request. "The right to have counsel of one's own choice, although not absolute, is important enough to require a legitimate state interest before a person can be deprived of that right. See State v. Rapuano, 192 Conn. 228, 232-33, 471 A.2d 240 (1984); United States v. Curcio, 694 F.2d 14, 23 (2d Cir.1982); see also United States ex rel. Spurlark v. Wolff, 683 F.2d 216, 220 (7th Cir.1982). In fact, Practice Book § 24 embodies this constitutional mandate, requiring the court to consider the 'facts or circumstances affecting the personal or financial welfare of the client,' when reviewing the application. This limited scope of inquiry strikes the balance between the state's interest in regulating attorneys seeking to be admitted to practice pro hac vice and the litigant's interest in obtaining counsel of his own choice. In this period of greater mobility among members of the bar and the public, and the corresponding growth in interstate business, a court should reluctantly deny an application to appear pro hac vice. A litigant's request to be represented by counsel of his choice, when freely made, should be respected by the court, unless some legitimate state interest is thwarted by admission of the out-of-state attorney." Enquire Printing & Publishing Co. v. O'Reilly, supra, 193 Conn. 374-75, 477 A.2d 648.

There is a legitimate state interest in granting the trial court the power to control its own docket. "Overcrowded dockets have become a major problem challenging the ability of the courts of this state and elsewhere to dispense justice. It is well known that justice delayed is justice denied. In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management.... Judges must be firm and create the expectation that a case will go forward on the specific day that it is assigned. In order to dispose of our cases in a fair, timely, and efficient manner, everyone involved must be present on time, prepared, and ready to go forward. Because both courtrooms and judges are necessarily limited in number, burgeoning caseloads require that efficient use be made of the available space and judicial time. Careful calendar control is one proven method of increasing the number of case dispositions in the system." In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983).

This case was returned to court in August, 1979, and was claimed to the trial list on May 23, 1980. It was almost six years old at the time of dismissal and certainly one of the oldest cases on the docket. It had been assigned for trial two weeks earlier and, at plaintiff's request, was continued by the court for trial on January 31, 1985. Up to January 18, 1985, Berger had been plaintiff's counsel in this case. Sometime during the ensuing two week interval, the plaintiff and Berger had a parting of the ways and the attorney was dismissed. On January 28, 1985, Strauss, a Connecticut attorney, entered a general appearance for the plaintiff. On the day of trial, January 31, 1985, Strauss filed a petition for admission of counsel pro hac vice, advising the court that out-of-state counsel was not available since he was on trial in New...