Tobacco Superstore, Inc. v. Darrough
Decision Date | 28 April 2005 |
Docket Number | No. 04-1329.,04-1329. |
Citation | 207 S.W.3d 511 |
Parties | TOBACCO SUPERSTORE, INC., Appellant, v. Diane DARROUGH, Appellee. |
Court | Arkansas Supreme Court |
Bridges, Young, Matthews & Drake PLC, by: John C. Talbot, Pine Bluff, AR; and The Kullman Law Firm, by: Henry P. Julien, Jr. And Robert P. Lombardi, New Orleans, LA, for appellant.
Hunt & Harris Law Firm, by: Eugene Hunt and Sandra Y. Harris, Pine Bluff, for appellee.
Although this appeal was originally filed in the court of appeals, we assumed jurisdiction of the case as it involves questions that arise under the power of the supreme court to regulate the practice of law. See Ark. Sup.Ct. R. 1-2(a)(5).
On May 9, 2003, appellee Diane Darrough filed an employment discrimination lawsuit against appellant Tobacco Superstore, Inc. ("TSS"), an Arkansas corporation that sells tobacco products in Arkansas, Tennessee, Mississippi, and Missouri. TSS filed its answer on June 16, 2003, after obtaining an extension of time to do so. TSS's attorneys, David Jaqua and Todd Photopulos, are licensed to practice in Tennessee. On the same day TSS's answer was filed, both Jaqua and Photopulos filed a motion for admission pro hac vice. On July 7, 2003, Darrough filed an objection to Jaqua and Photopulos's motion for admission pro hac vice, contending that the lawyers had failed to associate an Arkansas lawyer as local counsel. On August 6, 2003, Darrough filed her first amended complaint, this time contending that her cause should be certified as a class action. TSS, through its attorneys Jaqua and Photopulos, answered on August 22, 2003.
On February 24, 2004, the trial court entered an order setting TSS's attorneys' motion for admission pro hac vice for a hearing on April 5, 2004. On April 5, 2004, Arkansas attorney John Talbot entered his appearance as local counsel on behalf of TSS. At the hearing that day, the trial court denied the Tennessee attorneys' motion for admission pro hac vice, finding that their motion failed to comply with Rule XIV, because neither the motion nor their supporting affidavits mentioned whether a Tennessee court would allow Arkansas attorneys to appear by comity. The order denying admission was entered on April 8, 2004.
On May 11, 2004, Darrough filed a motion for default judgment and to have her requests for admission declared admitted. In her motion, she alleged that TSS had been properly served with process, but had failed to file a timely answer; in addition, Darrough contended that TSS had failed to answer her requests for admission in the time and manner provided by law. In her brief in support of her motion, she argued that, because TSS's Tennessee attorneys had not been admitted to practice in Arkansas at the time they filed TSS's answer to Darrough's complaint, TSS's answer was a nullity; likewise, "no one authorized to practice law in Arkansas" had answered Darrough's requests for admission with the time allotted, and therefore those requests should be deemed admitted.
In response, TSS argued that, because Darrough had "treated David Jaqua and Todd Photopulos as [TSS's] attorneys by submitting discovery requests to them and serving pleadings on them," Darrough should be estopped from seeking a default judgment and having her request for admissions deemed admitted. In addition, TSS argued that a default judgment would be improper in any event, because Darrough's original complaint was superseded by her amended complaint, which neither adopted nor incorporated her original complaint. Thus, TSS contended, Darrough's original complaint was a nullity, and a default judgment could not be based on that complaint. TSS further urged that Darrough did not serve her first amended complaint in compliance with Ark. R. Civ. P. 5(a), and a default judgment could not be based on an improperly served complaint. TSS also filed a motion to dismiss Darrough's first amended complaint, reiterating its argument that the amended complaint, which neither adopted nor incorporated the original complaint, was not properly served. On July 30, 2004, TSS also filed a "supplemental response to motion for default judgment," in which it further contended that the court could not grant Darrough's motion for default judgment, because her complaint failed to state facts sufficient to constitute a cause of action.
The trial court entered an order on August 30, 2004, granting Darrough's motion for default judgment with respect to her original complaint. In the order, the court noted that neither Jaqua nor Photopulos had been properly admitted to practice law in Arkansas; therefore, the answer filed by those attorneys on behalf of TSS was a nullity and should be stricken from the record. However, the court denied Darrough's motion for default judgment with respect to her first amended (class-action) complaint. Finally, the order denied TSS's motion to dismiss the complaint and first amended complaint.
TSS has appealed from this order, and in its first point on appeal, it argues that the trial court erred in denying the motion for admission to practice pro hac vice filed by Tennessee attorneys Jaqua and Photopulos. A trial court's ruling on an attorney's motion for admission to practice pro hac vice is reviewed under an abuse of discretion standard. See Preston v. University of Arkansas for Medical Sciences, 354 Ark. 666, 128 S.W.3d 430 (2003). The admission of attorneys to practice pro hac vice is governed by Rule XIV of the Rules Governing Admission to the Bar. That Rule provides, in pertinent part, as follows:
A lawyer residing outside the State of Arkansas who has been admitted to practice law in the Supreme Court of the United States or in the United States Court of Appeals for the circuit in which the attorney resides or in the Supreme Court or the highest appellate court of the state of the attorney's residence, and who is in good standing in the court of the attorney's admission, will be permitted by comity and by courtesy to appear, file pleadings and conduct the trial of cases in all courts of the State of Arkansas. However, any trial court may require such nonresident attorney to associate a lawyer residing and admitted to practice in the State of Arkansas upon whom notices may be served and may also require that the Arkansas lawyer associated be responsible to the court in which the case is pending for the progress of the case, insofar as the interest represented by the Arkansas lawyer and the nonresident lawyer is concerned.
Unless the State in which the . . . nonresident lawyer resides likewise accords similar comity and courtesy to Arkansas lawyers who may desire to appear and conduct cases in the courts of that State, this privilege will not be extended to such nonresident lawyer.
A nonresident lawyer will not be permitted to engage in any case in an Arkansas court unless a written statement is filed with the court in which the nonresident lawyer submits to all disciplinary procedures applicable to Arkansas lawyers.
In the present case, Tennessee attorneys Jaqua and Photopulos filed a motion for admission pro hac vice in which they named the law schools they had attended, the bars to which each had been admitted to practice, and the following three statements: 1) movants are members in good standing of all bars of which movants are members; the movants are not under suspension or disbarment from any bar; 2) movants do not reside in Arkansas, are not regularly employed in Arkansas, and are not regularly engaged in the practice of law in Arkansas; and 3) movants submit to all disciplinary procedures applicable to Arkansas lawyers.
TSS first asserts that Jaqua and Photopulos established all the necessary facts for admission pro hac vice by filing a verified motion for admission that specified that they were admitted to the Tennessee supreme court, were in good standing in Tennessee and were not residents of Arkansas, and had submitted themselves to all disciplinary procedures applicable to Arkansas lawyers. In addition, TSS points out that Darrough limited her motion by objecting to Jaqua and Photopulos's admission only on the grounds that TSS had failed to associate local counsel.
At the hearing on the Tennessee attorneys' motion for admission, Darrough conceded that the requirement of associating local counsel was a matter of the trial court's discretion, but she raised a new and different objection—that the motion was facially defective because neither Jaqua nor Photopulos had mentioned whether Tennessee affords comity to Arkansas lawyers who wish to practice in that state. Darrough had not previously advanced this ground in her written objection. Despite Darrough's failure to alert TSS that she would be raising this argument until only three days prior to the hearing, TSS's Arkansas attorney, John Talbot, offered the court a copy of Tennessee Supreme Court Rule 19, which is essentially identical to Arkansas' Rule XIV in all respects, and which permits lawyers who are nonresidents of Tennessee to practice in that state's courts. Nonetheless, the trial court refused to consider the Tennessee rule, declaring that, because the proffered copy of the rule was not a certified copy and was not accompanied by an affidavit, the court "did not know" what it was. TSS argues that its proffer of the Tennessee rule satisfied the one remaining requirement of Rule XIV. In other words, the Tennessee attorneys' proffer of the Tennessee comity rule, in addition to the averments previously made in their written motion, fully complied with the information required under Arkansas' Rule XIV so as to permit them, as nonresident attorneys, to practice in Arkansas.
Darrough, on the other hand, contends that the Tennessee lawyers' motion was defective ab initio, and that they never attempted to amend the motion or cure it before it was denied by the trial court. In support of her argument, she relies on two cases, Preston, supra; and Willett v. State, 334 Ark. 40...
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