Dinet v. Gavagnie

948 So. 2d 1281, 2007 WL 474304
CourtMississippi Supreme Court
DecidedFebruary 15, 2007
Docket2005-CA-01438-SCT
StatusPublished
Cited by18 cases

This text of 948 So. 2d 1281 (Dinet v. Gavagnie) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Dinet v. Gavagnie, 948 So. 2d 1281, 2007 WL 474304 (Mich. 2007).

Opinion

948 So.2d 1281 (2007)

Clair DINET and Roldin Dinet
v.
Robert L. GAVAGNIE and City of Waveland, Mississippi.

No. 2005-CA-01438-SCT.

Supreme Court of Mississippi.

February 15, 2007.

William Chad Stelly, attorneys for appellants.

Matthew Stephen Lott, Robert W. Wilkinson, Pascagoula, attorneys for appellees.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. This case is on appeal from the Circuit Court of Hancock County, by Plaintiffs Clair and Roldin Dinet. Plaintiffs seek review of the trial court's order, which granted the Defendants' Motion to Strike All Pleadings and dismissed the entire *1282 matter without prejudice. We find that the failure of their foreign counsel James Shields to obtain admission pro hac vice in the instant proceedings does not warrant the harsh sanction of dismissal of the Dinets' claims in this case. We conclude that, on remand, the trial court may impose sanctions upon Shields as the trial court deems proper, including reporting to the appropriate association(s) of an apparent violation of Rule 5.5(a) of the Louisiana Rules of Professional Conduct.

FACTS AND PROCEDURAL HISTORY

¶ 2. On September 27, 2001, Plaintiffs 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. Between March 7, 2003, and September 12, 2003, 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 the summer of 2004, in preparation for the August 2004 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. Defendants claim that the fact that Shields was not licensed in Mississippi was not readily ascertainable because he signed all pleadings without a bar number and spoke often of trying cases in Mississippi. In July 2004, 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.

¶ 3. On January 5, 2005, Defendants filed their 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 despite several warnings from defense counsel. Notice of this hearing was sent to Shields on January 10, 2005. On January 31, 2005, 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. On February 4, 2005, defense counsel sent Stelly and Shields a letter informing them that the Motion to Strike All Pleadings would be withdrawn if Shields were to file for admission pro hac vice or withdraw from the proceedings. Notice of the hearing on Defendants' Motion to Compel, Motion for Summary Judgment and Motion to Strike All Pleading filed by Plaintiffs was again sent to Shields and Stelly on February 4, 2005. On February 22, 2005, the trial court heard the Motion to Strike All Pleadings, but Shields did not appear. At this time, Shields had not yet filed for admission nor had he withdrawn from the proceedings. Defendants' motion was granted, and the court signed an Order for Dismissal without prejudice on February 25, 2005. On March 4, 2005, Plaintiffs filed a Motion for a New Trial on the Motion to Strike All Pleadings, and, having been denied, Plaintiffs bring this appeal asserting the following issues for review. We repeat them here verbatim:

I. Whether the trial court abused its discretion in granting Defendants' Motion to Strike all Pleadings, which was not filed until the expiration of over three years from the date of the *1283 filing of the Original Complaint for Damages and after substantial discovery has been conducted, and no evidence of any improprieties was presented warranting striking of any of the pleadings.
II. Whether the trial court abused its discretion in granting Defendants' Motion to Strike All Pleadings which may have effectively administered the unduly and unwarranted harsh result of dismissal of Plaintiffs' cause of action with prejudice.

DISCUSSION

¶ 4. When reviewing a trial court's decision to dismiss under Miss. R. Civ. P. Rule 41(b), the Court may reverse only if it finds the trial court was manifestly wrong. Walters v. Patterson, 531 So.2d 581, 583 (Miss.1988). The standard for reviewing a trial court's decision of involuntary dismissal under Rule 41(b) is abuse of discretion. Wallace v. Jones, 572 So.2d 371, 375 (Miss.1990).

¶ 5. The first issue that Plaintiffs assert on appeal is that the trial 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. While Plaintiffs admit that Shields is not a member of the Mississippi Bar, nor was he admitted pro hac vice in connection with the instant proceedings, they assert he has appeared in state and federal courts of Mississippi on a number of prior occasions. Additionally, in January 2005, Plaintiffs enrolled Stelly, a member of the Mississippi Bar, as undersigned counsel to the instant proceedings. Defendants argue that they timely filed the motion to strike, and that they notified Shields of his need to obtain admission pro hac vice many months prior to filing such motion. Defendants argue that when a party timely acts prior to trial of the case, and the trial court properly strikes the pleadings due to a Miss. R.App. P. 46 violation, the Motion to Strike All Pleadings will not be deemed waived.

¶ 6. In Terrell v. Tschirn, Tschirn, a Louisiana attorney, did not follow the appropriate rules to appear pro hac vice, as he never filed an affidavit as required by Rule 46(b)(4). 656 So.2d 1150, 1152 (Miss.1995). The Court said that because of counsel's Rule 46 violation, upon proper motion by Terrell, the pleading in the case would be stricken from the record. However, Terrell did not make this motion until after an adverse verdict was returned against him. Id. This reflects the view addressed in Buchanan v. Buchanan, in which the Court held that a party who knew of grounds for a judge's recusal should not be allowed to take his chances with the jury and then, after he loses, file a motion for that judge's recusal. Buchanan, 587 So.2d 892, 897 (Miss.1991). However, in the instant case, Defendants filed their motion to strike before the case went to trial, and thus do not fall in the same situation as the parties in these cases. Therefore, relying on the Court's reasoning in Terrell, Defendants Motion to Strike All Pleadings was not waived.

¶ 7. Secondly, Plaintiffs assert that the trial court abused its discretion in granting the defendants' motion to strike all pleadings, which they claim could effectively administer an unwarranted result of dismissal with prejudice because of the running of the statute of limitations. Citing

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Cite This Page — Counsel Stack

Bluebook (online)
948 So. 2d 1281, 2007 WL 474304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dinet-v-gavagnie-miss-2007.