Smith v. Beaufort County Hosp. Ass'n, Inc.

• Decision Date: 29 December 2000
• Docket Number: No. COA99-1575.,COA99-1575.
• Citation: 141 NC App. 203,540 S.E.2d 775
• Court: North Carolina Court of Appeals
• Parties: 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.

540 S.E.2d 775

141 NC App. 203

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.

Court of Appeals of North Carolina.

December 29, 2000.

White and Crumpler, by Dudley A. Witt, Winston-Salem, for plaintiff-appellants.

Womble Carlyle Sandridge & Rice, by Burley B. Mitchell, Jr., Mark A. Davis and Charles L. Becker, Raleigh, 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, by Robert M. Clay and Charles George, Raleigh, 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 conclusion is contrary to existing law and an abuse of discretion, (2) abused its discretion by revoking the pro hac vice admission previously granted to plaintiffs' counsel when there was no change in circumstances, no misconduct, and no other evidence to warrant the revocation, (3) erred in entering its conclusion of law where it concluded that reciprocity of admission does not exist between Florida and North Carolina because Florida's pro hac vice requirements differ from North Carolina's on the grounds that said conclusion is contrary to existing law, (4) erred in its conclusion of law that neither the letter nor the spirit of N.C. Gen.Stat. § 84-4.1(2) had been complied with as said conclusion of law is based upon improper findings of fact and is contrary to existing law, and (5) erred in concluding that the conduct of the law firm Gary, Williams, Parenti, Finney, Lewis, McManus, Watson & Sperando (hereinafter, "the Gary Law Firm") constituted the habitual practice of law as said conclusion was based upon improper findings of fact and is contrary to existing law. After a careful review of the records and briefs, we find plaintiffs' arguments to be without merit, and we hereby affirm the trial court.

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 N.C. Gen. Stat. § 84-4.1. The motions were heard ex parte before the Honorable Richard B. Allsbrook in Beaufort County Superior Court. On that very day, Judge Allsbrook entered an order allowing the motions for pro hac vice admission of plaintiffs' counsel, however defendants were never served with the motions or orders. Shortly thereafter, plaintiffs' counsel filed a notice of appearance with the superior court on 14 June 1999. Then on 16 July and 6 August 1999, defendants filed motions to strike, rescind and reconsider, and vacate Judge Allsbrook's order of 3 May 1999.

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.

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 [§ 84-4.1], [a] plaintiff acquired a substantial right to the continuation of representation by that attorney...." Goldston v. American Motors Corp., 326 N.C. 723, 727, 392 S.E.2d 735, 737 (1990). Furthermore, an order removing said counsel affects a substantial right of the plaintiff and is immediately appealable. Id.

We acknowledge defendants' argument in their briefs that plaintiffs' counsel had never been properly admitted pro hac vice under § 84-4.1. However defendants' claims that plaintiffs violated N.C.R.Civ.P. 5(a) by failing to serve the motions on defendants and by seeking an ex parte order are not properly before this Court. Defendants did not set forth their arguments as assignments or cross-assignments of error in the record on appeal, nor have they made a motion with this Court in that same vein.

"[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); N.C.R.App. P. 10(a). These issues raised in defendants' briefs were not preserved for appeal, and therefore, we dismiss them. Accordingly, we find that plaintiffs' counsel was properly admitted pro hac vice for purposes of this appeal, and consequently, Judge Griffin's order removing counsel affected a substantial right of plaintiffs and is immediately appealable.

N.C. Gen.Stat. § 84-4.1 (1999), the statute that governs the limited practice of out-of-state attorneys in North Carolina, states in pertinent part:

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.

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(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.

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Compliance with the foregoing requirements does not deprive the court of the discretionary power to allow or reject the application.

The purpose of § 84-4.1 "is to afford [North Carolina] courts a means to control out-of-state counsel and to assure compliance with the duties and responsibilities of attorneys practicing in this State." N.C.N.B. v. Virginia Carolina Builders, 57 N.C.App. 628, 631, 292 S.E.2d 135, 137 (1982), rev'd on other grounds, 307 N.C. 563, 299 S.E.2d 629 (1983). "`... The statute forbids the courts from allowing non-resident counsel ... from practicing habitually in our courts, and they cannot acquire the right to do so.'" State v. Hunter, 290 N.C. 556, 568, 227 S.E.2d 535, 543 (1976) (quoting Manning v. R.R., 122 N.C. 824, 828, 28 S.E. 963, 964 (1898)).

"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).

Having determined the nature and purpose of § 84-4.1, we proceed with our analysis of plaintiffs' specific assignments of error. We first address plaintiffs' assignment...