Preston v. University of Arkansas, 03-120.

• Court: Supreme Court of Arkansas
• Citation: 128 S.W.3d 430,354 Ark. 666
• Docket Number: No. 03-120.,03-120.
• Parties: Richard L. PRESTON and Gloria Preston v. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES; The University Hospital of Arkansas; Johannes Gruenwald, M.D.; William C. Grammar, M.D.; Kenneth G. Gati, M.D.; Laurie Hughes, M.D.; Anthony Roman, M.D.; and Robert S. Sedaros, M.D.
• Decision Date: 06 November 2003

128 S.W.3d 430

354 Ark. 666

Richard L. PRESTON and Gloria Preston v. UNIVERSITY OF ARKANSAS FOR MEDICAL SCIENCES; The University Hospital of Arkansas; Johannes Gruenwald, M.D.; William C. Grammar, M.D.; Kenneth G. Gati, M.D.; Laurie Hughes, M.D.; Anthony Roman, M.D.; and Robert S. Sedaros, M.D.

No. 03-120.

Supreme Court of Arkansas.

November 6, 2003.

Richardson, Stoops, Richardson & Ward, by: Eddie D. Ramirez, Tulsa, OK, for appellants.

Friday, Eldredge & Clark, by: Fran C. Hickman and Lindsey Mitcham, Little Rock, for appellees.

ROBERT L. BROWN, Justice.

This is an appeal from an order dismissing the complaint of appellants Richard L. Preston and Gloria Preston. The Prestons raise the following points on appeal: (1) their complaint filed by non-licensed attorneys should not nullify their cause of action because their complaint was filed within the time limits of the statute of limitations; and (2) the trial court erred in granting the appellee doctors' motions to deem their requests for admission of facts admitted. We hold that the points raised on appeal have no merit, and we affirm.

On November 17, 1999, Richard Preston fell and broke his left femur in Fort Smith. He was taken to the University Hospital in Little Rock for treatment. Two days later, Drs. Gruenwald, Gati, Grammar, Hughes, Roman, and Sedaros (appellee doctors) inserted a compression plate into his left femur at the University Hospital. While the doctors were inserting screws into the plate, the drill bit apparently broke, numerous screws apparently broke, and the screws and drill bits were left inside the femur. Richard Preston later complained of pain during follow-up visits to the hospital. On February 17, 2000, x-rays were taken and disclosed that displaced screws and screw heads were present in the muscle tissue of the left thigh area adjacent to the compression plate.

On November 19, 2001, the Prestons filed their complaint against the appellee doctors and University Hospital. They complained that Richard Preston sustained severe pain and damage due to the doctors' negligence and University Hospital's failure to credential adequately and supervise. In addition, they claimed that Gloria Preston suffered loss of consortium and mental pain and suffering. The complaint stated that the Prestons brought their complaint "by and through their attorneys Fred E. Stoops, Sr., Richard D. Marrs and Eddie D. Ramirez, of the law firm of Richardson, Stoops, Richardson & Ward" located in Tulsa, Oklahoma.

On February 11, 2002, the six appellee doctors filed separate answers. Each doctor also filed requests for six admission of facts on that same date.¹ On February 21 2002, University Hospital filed a separate answer and motion to dismiss based on the fact that the hospital is entitled to governmental immunity and may not be sued directly in tort. On March 5, 2002, the University of Arkansas for Medical Sciences (UAMS) also filed a motion to dismiss in which it asserted that the court lacked jurisdiction, because a claim against UAMS is a claim against the State, which is prohibited by the Arkansas Constitution.

On July 18, 2002, the appellee doctors filed motions to deem requests for admission of facts admitted. The next day, the appellee doctors filed a motion to strike the Prestons' complaint in which they argued:

There have been no filings for request for admission Pro Hac Vice, there is no local counsel involved, and there has been no certificate or affidavit filed with the Court stating that any of the Oklahoma lawyers listed on the Complaint have agreed to be bound by Arkansas' disciplinary rules or that there is any type of comity with the State of Oklahoma.

On July 25, 2002, the Prestons responded to the appellee doctors' motions to deem requests for admission of facts admitted and filed a motion for leave to file responses to those requests out of time. The Prestons claimed that their responses were prepared and dated February 14, 2002, but that they either were not forwarded to the doctors' counsel or were forwarded but not received.

On July 25, 2002, the Prestons' Oklahoma counsel filed motions for admission pro hac vice to practice law before the circuit court. Counsel Fred Stoops asserted in his motion that he is authorized to practice law in Colorado and Indiana state courts and in Oklahoma state and federal courts; that he is an active member of the Oklahoma Bar Association and Indiana Bar Association and a resident of Oklahoma; that he is a regularly admitted practicing attorney in good standing in Oklahoma and Indiana courts of record; that he has appeared before Arkansas courts in connection "with a number of matters previously;" and that he submits himself to all disciplinary procedures in Arkansas. Counsel Richard Marrs asserted in his motion that he is authorized to practice law in Oklahoma state and federal courts, the United States Court of Military Appeals, the United States Court of Appeals D.C. Circuit, and the United States Court of Appeals 10th Circuit; that he is an active member of the Oklahoma Bar Association and a resident of Oklahoma; that he is a regularly admitted practicing attorney in good standing with the courts of record in Oklahoma; and that he will submit himself to all disciplinary procedures in Arkansas. Counsel Eddie Ramirez asserted in his motion that he is authorized to practice law in Oklahoma state and federal courts; that he is an active member of the Oklahoma Bar Association; that he is a regularly admitted practicing attorney in good standing in the courts of record in Oklahoma; and that he agrees to submit himself to all disciplinary procedures in Arkansas.

On August 2, 2002, the circuit court dismissed the Prestons' claims against UAMS and University Hospital without prejudice. On August 19, 2002, the appellee doctors responded to the motions for admission pro hac vice of counsel Marrs, Ramirez, and Stoops and proposed that the circuit court deny the motions for admission pro hac vice and dismiss the Prestons' complaint, because their attorneys are not licensed to practice law in Arkansas. They further asserted that the Oklahoma counsel moved to be admitted to practice law pro hac vice after the Prestons filed their complaint. The appellee doctors claimed that the Prestons are forever barred from filing their cause of action, because the two-year statute of limitations for medical negligence has run.

On September 27, 2002, the circuit court conducted a hearing on the pro hac vice matter. At that hearing, Arkansas attorney Lamar Porter pointed out to the court that the Prestons' Oklahoma attorneys should not be deemed to be unauthorized to practice law in Arkansas, because Oklahoma has similar rules of comity and because Arkansas attorneys in Fort Smith apparently practice law in Oklahoma and Oklahoma attorneys practice law in Fort Smith.

On October 3, 2002, the circuit court entered its order of dismissal in which it granted the appellee doctors' motion to strike the complaint, because the Prestons' counsel were not licensed to practice law in Arkansas. The court found, as a result, that the Prestons' complaint was a nullity and concluded that their claims were forever barred, because the two-year statute of limitations had expired. The court also granted the appellee doctors' motion to deem their requests for admission of facts admitted and ruled that the Prestons, because of this, had no substantive cause of action. The court dismissed the Prestons' complaint with prejudice.

The Prestons first argue on appeal that they filed their cause of action within the statute of limitations and that they should not be penalized, because their attorneys were not licensed to practice law in Arkansas. They contend that our case of Davenport v. Lee, 348 Ark. 148, 72 S.W.3d 85 (2002), should not apply to this matter, because Davenport dealt with a wrongful-death action in which the parties failed to comply with Arkansas statutes. They point out that the plaintiffs in Davenport lacked standing to file a wrongful-death action, because they were not personal representatives and did not make up all statutory beneficiaries joined as parties to the suit, as the statute required. The Prestons assert that they, as individuals, should not be seen as being engaged in the unauthorized practice of law, forever barring them from pursuing their cause of action.

The Prestons further urge that the present cause of action should be allowed to go forward even if this court determines that their attorneys were engaged in the unauthorized practice of law. They underscore that Arkansas has other methods of dealing with the unauthorized practice of law, as set forth in Davenport v. Lee, supra, such as dismissal, reversal of a judgment in the cause, and disregarding the actions taken by the unauthorized practitioner. They further maintain that they should be allowed to pursue their complaint regardless of who the attorneys are and even if they did not have counsel at all. Finally, they claim that their attorneys have previously been allowed to practice before various state courts in Arkansas and that, accordingly, they have the right to bring their cause of action. When we review an order granting a motion to dismiss, we treat the facts alleged in the complaint as true and view them in the light most favorable to the plaintiff. See Davenport v. Lee, supra; Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000). In testing the sufficiency of a complaint on a motion to dismiss, all reasonable inferences must be resolved in favor of the complaint, and all pleadings are to be liberally construed. Davenport v. Lee, supra; Goff v. Harold Ives Trucking Co., supra.

This point clearly turns on whether the Prestons' Oklahoma attorneys were engaged in the unauthorized practice of law in Arkansas. The Oklahoma counsel unquestionably were practicing law in Arkansas, because they filed a complaint on behalf of...