Speer v. Donfeld

• Decision Date: 19 June 1998
• Docket Number: No. 2,CA-SA,2
• Citation: 193 Ariz. 28,969 P.2d 193
• Parties: , 272 Ariz. Adv. Rep. 18 Theresa Eileen SPEER, individually and on behalf of Sabrina Lynn Negron, a minor, and Alberto Negron, a minor; and James A. Coulter, Petitioners, v. Honorable Robert DONFELD, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent. and Cigna Healthplan of Tucson, Arizona, Inc., aka Cigna Health Care of Arizona, an Arizona corporation; Dung Nguyen, D.O., and Marie Nguyen, individually and as husband and wife; Mark M. Kartchner, M.D., and Jane Doe Kartchner, individually and as husband and wife; Southwestern Surgery Associates, Ltd., an Arizona limited liability corporation: Carondelet Health Care Corporation of Arizona dba Carondelet St. Joseph's Hospital, an Arizona corporation, Real Parties in Interest. 98-0040.
• Court: Arizona Court of Appeals

Page 193

969 P.2d 193

193 Ariz. 28, 272 Ariz. Adv. Rep. 18

Theresa Eileen SPEER, individually and on behalf of Sabrina Lynn Negron, a minor, and Alberto Negron, a minor; and James A. Coulter, Petitioners, v. Honorable Robert DONFELD, Judge of the Superior Court of the State of Arizona, in and for the County of Pima, Respondent and Cigna Healthplan of Tucson, Arizona, Inc., aka Cigna Health Care of Arizona, an Arizona corporation; Dung Nguyen, D.O., and Marie Nguyen, individually and as husband and wife; Mark M. Kartchner, M.D., and Jane Doe Kartchner, individually and as husband and wife; Southwestern Surgery Associates, Ltd., an Arizona limited liability corporation: Carondelet Health Care Corporation of Arizona dba Carondelet St. Joseph's Hospital, an Arizona corporation, Real Parties in Interest.

No. 2 CA-SA 98-0040.

Court of Appeals of Arizona Division 2, Department A.

June 19, 1998.

Stompoly, Stroud, Glicksman & Erickson, P.C. by John G. Stompoly, Tucson, for Petitioners.

Snell & Wilmer, L.L.P. by Donald H. Smith and Martha E. Gibbs, Phoenix, for Real Parties in Interest Cigna Healthplan of Tucson and Nguyen.

Slutes, Sakrison, Grant, Hill & Rubin, P.C. by Michael B. Smith, Tucson, for Real Parties in Interest Kartchner and Southwestern Surgery Associates.

Cavett & Kaucher, P.C. by James W. Kaucher, Tucson, Attorneys for Real Party in Interest Carondelet Health Care Corporation.

OPINION

BRAMMER, Judge.

¶1 Petitioners challenge the respondent judge's order revoking petitioner James A. Coulter's admission pro hac vice as counsel for petitioner Theresa Speer in her underlying medical malpractice action. Petitioners appealed the order, but we determined that this court lacked appellate jurisdiction under A.R.S. § 12-2101. Thus, we dismissed the appeal and, in our discretion, redesignated the case as a special action filed pursuant to Rule 4, Ariz.R.P.Spec.Action, 17B A.R.S. Because petitioners have no remedy by appeal and because Speer is substantially affected by the revocation of Coulter's admission, we accept jurisdiction of the special action and, for the reasons discussed below, grant relief.

¶2 Donna Jewett, an attorney admitted to practice in Arizona, filed Speer's medical malpractice action in December 1994 against the real parties in interest, Southwestern Surgery Associates, Ltd.; Cigna Healthplan of Tucson, Arizona, Inc.; Carondelet Health Care Corporation of Arizona; and three doctors and their spouses. Coulter, an attorney licensed in Wyoming and a nonpracticing neurosurgeon, later applied for admission pro hac vice pursuant to Rule 33(d), Ariz.R.S.Ct., 17A A.R.S. His application was granted in August 1995, and the case was transferred the same day to Judge Rodriguez, who had already been assigned a related products liability action filed by Speer. Cigna filed its revocation motion on April 17, 1997. Less than three weeks later, the medical malpractice action was reassigned to the respondent judge, who granted the motion in August 1997, revoking Coulter's admission based on ten instances of misconduct.

¶3 Supreme Court Rule 33(d) generally requires that counsel seeking admission pro hac vice in Arizona be a member in good standing of another state's bar and that Arizona counsel be designated to facilitate communication about the matter and to receive service of process. The rule also provides that admitted counsel "consents to the jurisdiction of the court to which application is made for any alleged misconduct which occurs during the course of the matter." Ariz.R.S.Ct. 33(d). The rule, however, does not define "misconduct" and is silent as to the grounds for revoking admission. And, as the respondent judge noted in his minute entry, no Arizona cases had at that time addressed revocation of admission. Moreover, the real parties in interest do not contend that Coulter's conduct amounted to "professional misconduct" under Rule 42, Ariz.R.S.Ct. ¹ We must thus look elsewhere for a definition of misconduct by which to measure Coulter's conduct and the respondent judge's revocation order.

¶4 Webster's Third New International Dictionary 1443 (1971) defines misconduct as an "intentional wrongdoing" or "deliberate violation of a rule of law or standard of behavior." Several Arizona cases address intentional or deliberate misconduct by an attorney, although not in the context of Rule 33(d).

¶5 In the early case of Keys v. State, 55 Ariz. 24, 97 P.2d 736 (1940), the supreme court reversed the defendant's conviction because the deputy county attorney who tried the case had deliberately violated the trial court's order that witnesses were not to discuss the case with anyone except the attorney who had called them as witnesses. The violation occurred when the deputy county attorney allowed an all-night jail visit by a state's witness with a codefendant who had previously pleaded guilty. The visit occurred the evening after the witness had testified. The supreme court found the attorney's conduct was "reprehensible under any circumstances." Id. at 28, 97 P.2d at 737.

¶6 Two years later, in Sadler v. Arizona Flour Mills Co., 58 Ariz. 486, 121 P.2d 412 (1942), the court affirmed the trial court's grant of a new trial based upon defense counsel's repeated references to plaintiff in closing argument as a "soulless corporation reaching out to take money from the pocket of defendant" and to a witness as "Merrill alias Gonzales," even though the witness's name had been legally changed from Gonzales to Merrill. Id. at 489, 121 P.2d at 413. The supreme court noted: "There was no evidence in the record to sustain either of these statements or insinuations." Id. Our supreme court has affirmed the granting of new trials based on similar misconduct in Elledge v. Brand, 102 Ariz. 338, 429 P.2d 450 (1967) (introduction of evidence with no bearing on trial issues intended only to prejudice jury was grounds for reversal); Sisk v. Ball, 91 Ariz. 239, 371 P.2d 594 (1962) (new trial proper when statements to jury not supported by facts and resulted in prejudice); and Mayo v. Ephrom, 84 Ariz. 169, 325 P.2d 814 (1958) (new trial proper when counsel made numerous inappropriate comments to jury).

¶7 More recently, in Grant v. Arizona Public Service Co., 133 Ariz. 434, 652 P.2d 507 (1982), the court determined that plaintiff's counsel had committed misconduct in closing argument by arguing his personal beliefs, facts that were not in evidence, and inferences that were not legitimately supported by an exhibit, but deferred to the trial court's decision that the misconduct did not require a new trial. In State v. Cannon, 133 Ariz. 216, 217, 650 P.2d 1198, 1199 (1982), the court also declined to reverse a first-degree murder conviction although the prosecutor had failed to disclose to the defense that the trigger on the gun the defendant had used had "become broken and tended to jam" by the time of trial. The misconduct was found not to warrant a mistrial because facts about the gun's condition at trial had been presented to the jury. Finally, this court affirmed the trial court's imposition of sanctions against both parties' counsel in Precision Components, Inc. v. Harrison, Harper, Christian & Dichter, P.C., 179 Ariz. 552, 554, 880 P.2d 1098, 1100 (App.1993), because they had violated the Uniform Practice Rules by not citing to the record for the location of facts related to a summary judgment motion, despite having "submitted over 3500 pages of exhibits in support of or in opposition to this motion."

¶8 Appellate courts that have reviewed the revocation of an attorney's admission pro hac vice have generally upheld the revocation absent an abuse of the trial court's discretion. See generally Ronald V. Sinesio, Annotation, Attorneys: Revocation of State Court Pro Hac Vice Admission, 64 A.L.R.4th 1217 (1988). See also Hmielewski v. Maricopa County, 192 Ariz. 1, 960 P.2d 47 (App.1998) (attorney sanctions reviewed for abuse of discretion).

¶9 In determining what constitutes an abuse of discretion, our supreme court in Grant set forth the following factors: (1) did the court base its ruling on an error of law, (2) was the determination reached without considering the evidence, (3) was there other substantial legal error in addition to the attorney misconduct, and (4) does the record contain substantial evidence to support the court's ruling. Here, the respondent judge found that Coulter had "failed to comply with Arizona procedures and practices, ignored court orders, [and] made no attempt to learn or follow Arizona law, procedure or practices." The judge also found that Coulter's actions were "contemptuous of the Court and ... ha[d] adversely affected [the] proceedings," although he made no specific finding that Coulter had engaged in intentional or deliberate misconduct. We consider the factors in Grant, together with the respondent judge's findings, to determine whether the judge abused his discretion in revoking Coulter's admission pro hac vice. ²

NURSES' INTERVIEWS

¶10 The first instance the respondent judge cited in support of revocation involves Coulter's desire to interview Carondelet's nurses ex parte. When Carondelet objected to the interviews at the pretrial conference before Judge Rodriguez, Speer stipulated that she would depose, rather than interview, the nurses. When Cigna also objected to ex parte interviews of its employees Judge Rodriguez ordered Speer and Cigna to brief the issue. Speer's brief contended that Arizona case law permits ex parte interviews of corporate employees and concluded by requesting interviews of both Cigna's and Carondelet's "non-'alter ego' corporate employees." This request caused Carondelet to file a response, in which it objected to interviews of its nurses based on Speer's prior stipulation and requested attorney's fees for having to respond. Judge Rodriguez agreed the stipulation precluded the interviews and awarded Carondelet attorney's fees, finding that, "[b]ased...