Westfall v. Cross
| Decision Date | 13 June 2001 |
| Docket Number | No. 00-BA-5.,00-BA-5. |
| Citation | 759 NE 2d 881,144 Ohio App.3d 211 |
| Parties | WESTFALL, Appellee, v. CROSS et al., Appellants. |
| Court | Ohio Court of Appeals |
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Bordas, Bordas & Jividen, Linda M. Bordas and James B. Stoneking, for appellee Della A. Westfall.
Steptoe & Johnson and James C. Wright, for appellant Attila A. Lenkey, M.D.
Colombo & Stuhr, P.L.L.C., and Richard Stuhr, for defendants Gregory M. Saracco, M.D., and Thoracic & Cardiovascular Surgery, Inc.
Colombo & Stuhr, P.L.L.C., and William Davis, for defendant Robert L. Cross, M.D. WAITE, Judge.
This timely appeal arises out of the denial of pro hac vice status to attorney Kenneth Barton in a January 14, 2000 judgment entry issued by the Belmont County Court of Common Pleas. Appellant maintains that the ruling of the trial court was final and appealable under R.C. 2505.02(B)(4) and that the court abused its discretion. We hold that an unqualified denial of pro hac vice status is a final and appealable order but that the trial court did not abuse its discretion in the instant case. The trial court decision is hereby affirmed.
The underlying litigation from which this appeal arises involves a medical negligence claim filed by appellee Della Westfall ("appellee"), seeking damages for the wrongful death of her late husband, James E. Westfall. On December 30, 1996, Robert Cross, M.D., and Gregory Saracco, M.D., performed emergency hernia and bowel surgery on decedent. On January 3, 1997, the two doctors performed additional surgery and discovered that decedent's bowel had been perforated. Dr. Lenkey ("appellant") was consulted to assist in the case on January 4, 1997. Decedent died in the evening of January 4, 1997.
Appellee filed her original complaint on January 24, 1997. Appellee filed an amended complaint on October 13, 1998, adding appellant as an additional defendant. Appellee alleged negligence in failing to timely assess, diagnose, ventilate, and treat decedent for signs of oxygen deprivation. Appellant secured the services of attorney James C. Wright of the law firm of Steptoe & Johnson in Wheeling, West Virginia. Attorney Wright remained as appellant's counsel through the extensive discovery phase of this case.
Trial was set for January 25, 2000. On January 13, 2000, appellant moved to admit Kenneth Barton, a West Virginia attorney, as his counsel pro hac vice. Attorney Barton's attached affidavit stated that he had a longstanding relationship with appellant and that appellant's insurer had requested Barton as lead counsel in the case.
On January 14, 2000, the trial court, after conducting an extensive hearing, denied pro hac vice status to attorney Barton. The court held that the three factors for evaluating a motion for pro hac vice described in State v. Ross (1973), 36 Ohio App.2d 185, 65 O.O.2d 316, 304 N.E.2d 396, were not present in the instant case. The court also stated that "the exercise of such privilege is only accorded on a limited occasion brought about by an extraordinary set of circumstances." The court did allow additional counsel to assist in the case but only if they were licensed to practice in Ohio. Any additional counsel were prohibited from eliciting testimony, raising objections, or arguing the case. Id.
On January 21, 2000, appellant filed this appeal of the January 14, 2000 judgment entry.
Appellant's sole assignment of error states:
"The trial court abused its discretion by unreasonably denying the appellant's motion for pro hac vice admission of attorney Kenneth J. Barton, Jr., where all three of the pro hac vice admission factors support attorney Barton's admission."
A. Final Appealable Order
Initially, we must determine whether this matter is ripe for appeal. R.C. 2505.02(B)(4) provides:
This court recently held that a denial of a motion to admit counsel pro hac vice was final and appealable under R.C. 2505.02(B)(4). Swearingen v. Waste Technologies Industries (1999), 134 Ohio App.3d 702, 713-714, 731 N.E.2d 1229, 1236-1238. Appellee argues that this court should overturn Swearingen because the cases cited within Swearingen do not support the holding reached in that case. Appellee argues that if this court correctly applies the case law cited within Swearingen, we should dismiss the instant appeal for lack of a final appealable order.
Swearingen primarily relies on two cases to support its holding. The first is Russell v. Mercy Hosp. (1984), 15 Ohio St.3d 37, 15 OBR 136, 472 N.E.2d 695, which dealt with a motion to disqualify a plaintiff's lead Ohio attorney because a member of the attorney's law firm had a conflict of interest. The case had been pending for over six years when the conflict arose. Id. at 38, 15 OBR at 137, 472 N.E.2d at 696. The trial court granted the motion, and the Ohio Supreme Court held that the judgment was a final appealable order under former R.C. 2505.02. Id.
Appellee argues that the disqualification of a party's lead attorney after litigation has been pending for many years is qualitatively different from the denial of pro hac vice status to an attorney who has not been involved in a case at all and whose services are being requested on the eve of the trial itself. As we will more fully analyze below, we do not find appellee's distinction significant in the context of determining whether the instant appeal is final and appealable.
The second case relied on in Swearingen is In re Myers (1995), 107 Ohio App.3d 489, 669 N.E.2d 53. Myers involved the denial of counsel pro hac vice arising out of an application to probate a will. Id. at 490, 669 N.E.2d at 53. Appellee argues that the Myers court actually held that the denial of pro hac vice status was not a final appealable order under former R.C. 2505.02. Id. at 496, 669 N.E.2d at 57. Appellee urges this court to adopt the holding of Myers as applied to the amended version of R.C. 2505.02.
Appellees' argument is not persuasive. The primary legal issue at stake in both Russell and Myers was whether a trial court decision denying a party the right to retain counsel of choice "affects a substantial right." One of the requirements of former R.C. 2505.02 in order to determine whether the matter was final and appealable was that the order must affect a substantial right. The comparable provision in amended R.C. 2505.02 states:
"Special proceeding" is defined in R.C. 2505.02(A)(2):
"(2) `Special proceeding' means an action or proceeding that is specially created by statute and that prior to 1853 was not denoted as an action at law or a suit in equity."
In R.C. 2505.02(A)(2), the Ohio legislature adopted the definition of "special proceeding" set forth in Polikoff v. Adam (1993), 67 Ohio St.3d 100, 107, 616 N.E.2d 213, 217-218. See State v. Saadey (June 30, 2000), Columbiana App. No. 99C049, unreported, 2000 WL 1114519. Polikoff instructed courts to resolve questions involving final appealable orders under former R.C. 2505.02 by first addressing the special proceeding prong of the statute, and then, if necessary, addressing whether a substantial right has been affected. Polikoff, supra, at 107, 616 N.E.2d at 217-218.
In determining whether a pro hac vice motion and hearing constitutes a special proceeding under R.C. 2505.02(A)(2), we must find both of the following: (1) it was specially created by statute and (2) prior to 1853 it was not denoted as an action at law or a suit in equity.
The right of an out-of-state attorney to appear as counsel in an Ohio court is not an absolute right, but, rather, is a matter within the discretion of the trial court. Royal Indemn. Co. v. J.C. Penney Co. (1986), 27 Ohio St.3d 31, 33, 27 OBR 447, 448-449, 501 N.E.2d 617, 619-620. The right to confer or revoke pro hac vice status is "part of the court's inherent power to regulate the practice before it and protect the integrity of its proceedings." Id. at 33-34, 27 OBR at 449, 501 N.E.2d at 620. Gov.Bar R. I(9)(H) acknowledges this inherent power by stating that the rules governing the admission to the practice of law in Ohio do "not apply to participation by an attorney not yet admitted to practice in Ohio in a cause being litigated in the State when such participation is with leave of the judge hearing such case." The right to appear as counsel pro hac vice is conferred by the common law and not by statute. Therefore, pro hac vice proceedings are not special proceedings as defined by R.C. 2505.02(A)(2), and any order resulting from those proceedings cannot be a final order under R.C. 2505.02(B)(2). There is, thus, no need to resolve whether the order affects a substantial right under that same section.
Appellee's insistence that we apply the Myers analysis regarding whether the denial of pro hac vice status affects a substantial right and that we distinguish Russell based on the same analysis is moot, because no matter which way we might resolve the issue, the January 14, 2000 entry is not a final appealable order under R.C. 2505.02(B)(2). The "substantial right" analysis is only...
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