Dinet, et al. v. Gavagnie, et al.
| Docket Number: | 2005-CA-01438-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 02-15-2007 Opinion Author: Smith, C.J. Holding: Vacated and Remanded. |
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| Additional Case Information: |
Topic: Personal injury - Penalty for failure to seek admission pro hac vice - M.R.A.P. 46(b) - M.R.C.P. 11 - Dismissal without prejudice Judge(s) Concurring: Waller, P.J., Diaz, Easley, Carlson, Graves and Randolph, JJ. Non Participating Judge(s): Cobb, P.J. Dissenting Author : Dickinson, J. Nature of the Case: CIVIL - BAR MATTERS |
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| Trial Court: |
Date of Trial Judgment: 02-25-2005 Appealed from: Hancock County Circuit Court Judge: Jerry Terry, Sr. Disposition: Trial court granted the Defendants’ Motion to Strike All Pleadings and dismissed the entire matter without prejudice. Case Number: 01-0386 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Clair Dinet and Roldin Dinet |
WILLIAM CHAD STELLY |
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| Appellee: | Robert L. Gavagnie and City of Waveland, Mississippi | MATTHEW STEPHEN LOTT ROBERT W. WILKINSON |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Personal injury - Penalty for failure to seek admission pro hac vice - M.R.A.P. 46(b) - M.R.C.P. 11 - Dismissal without prejudice |
| Summary of the Facts: | Clair and Roldin Dinet filed a complaint for damages arising out of a traffic accident between Clair Dinet and Waveland Police Officer Robert Gavagnie. Attorney James Shields signed and caused the complaint to be filed, listing his Louisiana business address and listed the name of Leigh Triche Janous, a member of the Mississippi Bar, under his signature. Shields appeared at several depositions taken in this case. Shields filed subsequent pleadings with the court, but Janous never made any appearances nor signed any of these pleadings. In preparation for the trial, defendants’ counsel became suspicious that Shields was not licensed in this state and placed a call to the Mississippi Bar Association, which confirmed their suspicions. Counsel for defendants informed Shields of the need for an attorney licensed in Mississippi to take the next deposition. Shields appeared at the deposition, where he was informed of his need to obtain admission pro hac vice in Mississippi courts. He was also told that local counsel would need to sign all pleadings and appear for depositions if he failed to obtain admission. Defendants filed a Motion to Strike All Pleadings, alleging that the pleadings in the case were invalid and should be stricken from the record as a result of Shields’ failure to obtain admission pro hac vice. Janous was replaced by Chad Stelly, a Mississippi attorney, as local counsel, but Shields did not withdraw as counsel nor seek admission pro hac vice. After a hearing on the Motion at which Shields did not appear, the court granted the motion and signed an Order for Dismissal without prejudice. The plaintiffs appeal. |
| Summary of Opinion Analysis: | The plaintiffs argue that the court erred in granting defendants’ Motion to Strike All Pleadings, since the motion was filed more than three years after the filing of the original complaint in 2001, after substantial discovery had been conducted. The Motion to Strike All Pleadings was not waived since it was filed before the case went to trial. The plaintiffs also argue that the court abused its discretion in granting the defendants’ motion to strike all pleadings, because the decision to dismiss their claims without prejudice based on Shield’s failure to seek admission pro hac vice is too harsh a penalty. M.R.A.P. 46(b)(2) states that a foreign attorney shall not appear in any cause except as allowed pro hac vice under Rule 46(b). Rule 46(b)11(i) mandates that any pleadings or other papers filed in violation of this rule shall be stricken from the record upon motion of any party or by the court. M.R.C.P. 11 requires the signature of regularly admitted attorneys on all pleadings and motions. Therefore, Shields did not comply with M.R.C.P. 11 or M.R.A.P. 46. In addition, Shields violated Rule 5.5(a) of the Louisiana Rules of Professional Conduct when he engaged in the unauthorized practice of law in this State. This issue is remanded to the trial court with instructions to notify the Louisiana State Bar of this unauthorized activity and for imposition of such other sanctions as the trial court deems proper. The plaintiffs also argue that they are properly before the court as they associated Stelly as local counsel. Stelly made an appearance as counsel for the plaintiffs in this action prior to the dismissal of the case. All pleadings filed by plaintiffs after the order substituting Stelly as counsel of record are signed by Stelly. Stelly’s appearance effectively cured the failure of plaintiffs’ foreign counsel to comply with M.R.A.P. 46, because Stelly was counsel for plaintiffs before the Order for Dismissal was issued. Because the dismissal of plaintiffs’ case is too harsh a result under these circumstances, the trial court erred in striking plaintiffs’ pleadings and dismissing their case without prejudice. |
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