Thi Holdings, LLC v. Shattuck

• Decision Date: 06 July 2012
• Docket Number: No. 2D11–5913.,2D11–5913.
• Citation: 93 So.3d 419
• Parties: THI HOLDINGS, LLC, Petitioner, v. Brenda S. SHATTUCK, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased, Respondent.
• Court: Florida District Court of Appeals

93 So.3d 419

THI HOLDINGS, LLC, Petitioner,

v.Brenda S. SHATTUCK, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased, Respondent.

No. 2D11–5913.

District Court of Appeal of Florida, Second District.

July 6, 2012.

Keith D. Skorewicz and J. Carter Andersen of Bush Ross, P.A., Tampa; and Ben Rottenborn of Kirkland & Ellis, LLP, Chicago, IL, for Petitioner.

Isaac R. Ruiz–Carus of Wilkes & McHugh, P.A., Tampa, for Respondent.

VILLANTI, Judge.

THI Holdings, LLC, petitions for a writ of certiorari directed to the trial court's order that denied its motion to have its out-of-state counsel, Gabor Balassa, appear pro hac vice in this case. Because the trial court applied the incorrect law when considering the motion, we grant the petition, quash the order, and remand with directions to admit Balassa pro hac vice.

The underlying facts are straightforward. Brenda S. Shattuck, as Personal Representative of the Estate of Arlene Anne Townsend, Deceased (the Estate), sued THI Holdings and twenty-five other defendants alleging that all of the defendants were involved in the negligent treatment of Ms. Townsend while she was a patient at the Auburndale Oaks nursing home. THI Holdings retained Balassa, a partner with Kirkland & Ellis, LLP, in Chicago, to represent it in this case because Balassa had represented THI Holdings in other matters in the past. Balassa is an Illinois attorney in good standing with the Illinois bar.

THI Holdings' local counsel filed a verified motion seeking to have Balassa admitted pro hac vice in Florida, and Balassa submitted an affidavit in support of the motion. The Estate filed a notice of objection to Balassa's admission. In that notice, the Estate did not contest any of the sworn representations contained in THI Holdings' motion or Balassa's affidavit. Instead, the sole basis for the Estate's objection was its assertion that Balassa had “irreconcilable conflicts of interest.” However, the notice did not explain what conflicts the Estate believed existed or how it had standing to raise these alleged conflicts.

At the hearing on THI Holdings' motion to admit Balassa pro hac vice, the Estate argued that Balassa should not be admitted because he had previously represented two different entities who were also defendants in the Estate's action—Trans Healthcare, Inc., and Trans Health Management, Inc.¹ The Estate admitted that the alleged prior representation was in completely separate matters. Additionally, the Estate did not contend that these prior matters were substantially related to the current case. Moreover, the Estate did not argue that Balassa had ever represented either the Estate or any party related to the Estate in any matter whatsoever. Instead, it argued only that Balassa's prior representation of Trans Healthcare, Inc., and Trans Health Management, Inc., might result in these defendants raising Balassa's alleged conflict of interest at some point during the current litigation and that, if they did so, it would delay justice for the Estate. Notably, the Estate offered no evidence to support its stated concerns and relied solely on the arguments of counsel concerning these alleged potential conflicts of interest.

In response, THI Holdings argued that the Estate's concerns did not impact the question of whether Balassa should be admitted pro hac vice. Further, THI Holdings argued that the Estate had no standing to raise alleged conflicts of interest between the various defendants. Nevertheless, the trial court denied THI Holdings' motion to have Balassa admitted pro hac vice. THI Holdings now seeks certiorari review of that order.

The standard by which a petition for writ of certiorari is reviewed is quite narrow. A petitioner seeking a writ of common law certiorari “must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). “Certiorari is available to review orders denying a motion to appear pro hac vice.” Brooks v. AMP Servs., Ltd., 979 So.2d 435, 437 (Fla. 4th DCA 2008); see also Pepsico, Inc. v. Roque, 743 So.2d 160, 161 (Fla. 3d DCA 1999) (granting certiorari to review an order denying the admission of attorneys pro hac vice); Keller Indus., Inc. v. Yoder, 625 So.2d 82, 82 (Fla. 3d DCA 1993) (same). The reason for this is a practical one: since neither the lawyer nor his firm are “currently involved in the litigation and he is not otherwise a party,” the lawyer is left “with no remedy on the final appeal of the underlying litigation.” Clare v. Coleman (Parent) Holdings, Inc., 928 So.2d 1246, 1248 (Fla. 4th DCA 2006). Moreover, the effect of the court's ruling is to deny a party its counsel of choice, which also constitutes a material injury that cannot be remedied on postjudgment appeal. See Akrey v. Kindred Nursing Ctrs. E., LLC, 837 So.2d 1142, 1144 (Fla. 2d DCA 2003). Thus, the only question in this case is whether the trial court departed from the essential requirements of the law when it denied Balassa's motion for admission pro hac vice.

The supreme court explained the law underlying the admission pro hac vice requirements in Huff v. State, 569 So.2d 1247, 1249–50 (Fla.1990):

[R]ule 2.060(b), Florida Rules of Judicial Administration, provides:

(b) Foreign Attorneys. Upon motion filed with a court showing that an attorney is a member in good standing of the bar of another state, attorneys of other states may be permitted to appear in particular cases in a Florida court. A request for an appearance shall be submitted before oral arguments in an appellate court proceeding and before trial in a trial court. Attorneys of other states shall not do a general practice unless they are members of The Florida Bar in good standing.

Likewise, rule 9.440(a) of the Florida Rules of Appellate Procedure provides:

(a) Foreign Attorneys. Attorneys who are members in good standing of the bar of another jurisdiction may be permitted to appear in a proceeding if a motion to appear has been granted.

The Committee Notes to rule 9.440(a) make clear that “[t]his rule leaves disposition of motions to appear to the discretion of the court.” Where the action of the trial court is discretionary, the order of the lower court will not be disturbed on appeal unless an abuse of discretion is clearly shown. See West Shore Restaurant Corp. v. Turk, 101 So.2d 123 (Fla.1958). The following statement of the test for review of a judge's discretionary power has been cited with favor by this Court:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court.

Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980), (quoting Delno v. Market Street Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)). The Court further observed that

[t]he discretionary power that is exercised by a trial judge is not, however, without limitation.... The trial court's discretionary power is subject only to the test of reasonableness, but that test requires a determination of whether there is logic and justification for the result. The trial courts' discretionary power was never intended to be exercised in accordance with whim or caprice of the judge nor in an inconsistent manner.

Canakaris, 382 So.2d at 1203 (emphasis added)....

....

Although the denial of such a motion is within the discretion of the trial court, the ruling should be based on matters that appear of record before the court. For example, something which casts doubt upon whether the applicant is actually a member of the bar of another jurisdiction or whether, if such a member, the applicant is a member in good standing, may support a denial of the motion. SeeFla. R.App. P. 9.440(a).

(Footnotes omitted; underline emphasis added.) ²Cf. Schlumberger Techs., Inc. v. Wiley, 113 F.3d 1553, 1559 (11th Cir.1997) (noting that “[a]dmission to a state bar creates a presumption of good moral character that cannot be overcome merely by the whims of the [trial c]ourt. An applicant for admission pro hac vice who is a member in good standing of a state bar may not be denied the privilege to appear except ‘on a showing that in any legal matter ... he has been guilty of unethical conduct of such a nature as to justify disbarment of a lawyer admitted generally to the bar of the court’ ” (quoting In re Evans, 524 F.2d 1004, 1007 (5th Cir.1975))). As the rules and case law demonstrate, a motion for admission pro hac vice, while subject to the discretion of the trial court, should usually be granted on a pro forma basis if it is facially sufficient and if the attorney is a member in good standing of the bar of another jurisdiction.

Here, THI Holdings filed a facially sufficient verified motion, and Balassa filed a supporting affidavit that asserted that he met the standards for admission pro hac vice. The Estate did not object to Balassa's admission based on any information contained in that motion. Nor did it challenge any of the assertions in Balassa's affidavit or point to any facts that would “cast doubt” on whether he was an...