{ "id": 8520947, "name": "DIANNE HOLLEY, Individually and as Guardian of the Estate of Ervin Lee Holley, Incompetent v. BURROUGHS WELLCOME CO., A North Carolina Corporation, and AYERST LABORATORIES, A Division of American Home Products Corporation", "name_abbreviation": "Holley v. Burroughs Wellcome Co.", "decision_date": "1982-03-16", "docket_number": "No. 8114SC694", "first_page": "337", "last_page": "345", "citations": [ { "type": "official", "cite": "56 N.C. App. 337" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "165 S.E. 2d 490", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "275 N.C. 90", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8557826 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc/275/0090-01" ] }, { "cite": "272 S.E. 2d 834", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1980, "pin_cites": [ { "page": "841" } ], "opinion_index": 0 }, { "cite": "301 N.C. 621", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569867 ], "year": 1980, "pin_cites": [ { "page": "631, 632" } ], "opinion_index": 0, "case_paths": [ "/nc/301/0621-01" ] } ], "analysis": { "cardinality": 604, "char_count": 15749, "ocr_confidence": 0.808, "pagerank": { "raw": 9.50588245470816e-08, "percentile": 0.5186447163521889 }, "sha256": "1836077450e20ed5d717c6b53b18358d3e3339c19bd462248f8af7601d84f818", "simhash": "1:23b513972f88bcff", "word_count": 2607 }, "last_updated": "2023-07-14T17:44:21.707745+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges HILL and Becton concur." ], "parties": [ "DIANNE HOLLEY, Individually and as Guardian of the Estate of Ervin Lee Holley, Incompetent v. BURROUGHS WELLCOME CO., A North Carolina Corporation, and AYERST LABORATORIES, A Division of American Home Products Corporation" ], "opinions": [ { "text": "WELLS, Judge.\nThe statutory provisions under which lawyers not licensed in North Carolina may be admitted to practice pro hac vice in North Carolina are found in G.S. 84-4.1, as follows:\n\u00a7 84-4.1. Limited practice of out-of-state attorneys.\nAny attorney regularly admitted to practice in the courts of record of another state and in good standing therein, having been retained as attorney for any party to a legal proceeding, civil or criminal, pending in the General Court of Justice of North Carolina, or the North Carolina Utilities Commission or the North Carolina Industrial Commission may, on motion, be admitted to practice in the General Court of Justice or North Carolina Utilities Commission or the North Carolina Industrial Commission for the sole purpose of appearing for his client in said litigation, but only upon compliance with the following conditions precedent:\n(1) He shall set forth in his motion his full name, post-office address and status as a practicing attorney in such other state.\n(2) He shall attach to his motion a statement, signed by his client, in which the client sets forth his post-office address and declares that he has retained the attorney to represent him in such proceeding.\n(3) He shall attach to his motion a statement that unless permitted to withdraw sooner by order of the court, he will continue to represent his client in such proceeding until the final determination thereof, and that with reference to all matters incident to such proceeding, he agrees that he shall be subject to the orders and amenable to the disciplinary action and the civil jurisdiction of the General Court of Justice and the North Carolina State Bar in all respects as if he were a regularly admitted and licensed member of the Bar of North Carolina in good standing.\n(4) He shall attach to his motion a statement to the effect that the state in which he is regularly admitted to practice grants like privileges to members of the Bar of North Carolina in good standing.\n(5) He shall attach to his motion a statement to the effect that he has associated and has personally appearing with him in such proceeding an attorney who is a resident of this State and is duly and legally admitted to practice in the General Court of Justice of North Carolina, upon whom service may be had in all matters connected with such legal proceedings, or any disciplinary matter, with the same effect as if personally made on such foreign attorney within this State.\n(6) Compliance with the foregoing requirements shall not deprive the court of the discretionary power to allow or reject the application.\nJudge Bailey found Moore\u2019s affidavit to be non-conforming in two respects. We agree that Moore\u2019s affidavit is not accompanied by the statement from his client, plaintiff in this action, as required under Subsection (2) of the statute. Such a statement is clearly required, and this requirement cannot be met by substituting the statement of North Carolina counsel. The statement must be signed by the client.\nWe do not agree that Moore\u2019s affidavit failed to meet the requirements of subsection (1) of the statute. We hold that a declaration by an applicant that he is a member in good standing of the Bar of another state and is duly licensed and admitted to practice in that state is sufficient to meet the requirements of subsection (1).\nJudge Bailey\u2019s order is tainted by a more fundamental error. He found that Moore\u2019s affidavit did not meet the requirements of the statute, yet he denied Moore\u2019s application in the exercise of his discretion. In In Re Smith, 301 N.C. 621 at 631, 632, 272 S.E. 2d 834 at 841 (1980), our Supreme Court made it abundantly clear that unless and until a G.S. 84-4.1 application meets the requirements of the statute, the court\u2019s discretionary power is not invoked:\nThe discretionary power of the court expressed in G.S. 84-4.1(6) arises \u201conly upon compliance with the . . . conditions precedent\u201d contained in G.S. 84-4.1(1-5). Those conditions must first be met. Then and only then does the Court have \u201cdiscretionary power to allow or reject the application.\u201d\nUnless and until subsections (1) through (5) are complied with, the court has no discretion whatever.\nPlaintiff has a fundamental right to select counsel who will represent her; Hagins v. Redevelopment Comm., 275 N.C. 90, 165 S.E. 2d 490 (1968), and plaintiff should be allowed every reasonable opportunity to exercise that right.\nHad Judge Bailey ruled as a matter of law that Moore\u2019s application failed to meet the requirements of the statute, plaintiff could have requested leave to amend and correct the deficiencies found by Judge Bailey. Judge Bailey having erroneously exercised his discretion in the matter, we are persuaded that the interests of justice require that his order be vacated and matter remanded for further proceedings consistent with this opinion.\nVacated and remanded.\nJudges HILL and Becton concur.", "type": "majority", "author": "WELLS, Judge." } ], "attorneys": [ "Sanford, Adams, McCullough & Beard, by Robert W. Spear-man, for plaintiff-appellant.", "Teague, Campbell, Conely & Dennis, by Richard B. Conely, for defendant-appellee.", "Narron, O\u2019Hale and Woodruff, P.A., by Gordon C. Woodruff, on Behalf of the North Carolina Academy of Trial Lawyers, Amicus Curiae." ], "corrections": "", "head_matter": "DIANNE HOLLEY, Individually and as Guardian of the Estate of Ervin Lee Holley, Incompetent v. BURROUGHS WELLCOME CO., A North Carolina Corporation, and AYERST LABORATORIES, A Division of American Home Products Corporation\nNo. 8114SC694\n(Filed 16 March 1982)\n1. Attorneys at Law \u00a7 2\u2014 foreign attorney \u2014 admission to practice for limited purpose \u2014 statement by client\nIn order for an out-of-state attorney to be admitted to limited practice in the courts of this State, the client\u2019s statement required by G.S. 84-4.1(2) must be attached to the attorney\u2019s motion, and this requirement cannot be met by substituting the statement of North Carolina counsel.\n2. Attorneys at Law \u00a7 2\u2014 foreign attorney \u2014 admission to practice for limited purpose \u2014status as \u201cpracticing attorney\u201d\nA declaration by an out-of-state attorney that he is a member in good standing of the Bar of another state and is duly licensed and admitted to practice in that state is sufficient to meet the requirement of G.S. 84-4.1(1) that he set forth his status as a \u201cpracticing attorney\u201d in the other state.\n3. Attorneys at Law \u00a7 2\u2014 foreign attorney \u2014 motion for admission to practice for limited purpose \u2014 failure to meet statutory requirements \u2014 no exercise of court\u2019s discretion\nWhere the trial court found that the affidavit of an out-of-state attorney did not meet the requirements of G.S. 84-4.1 for admission to practice for a limited purpose, the court erred in denying the attorney\u2019s application in the exercise of its discretion but should have ruled as a matter of law, in which case plaintiff could have requested leave to amend and correct the deficiencies found by the trial court.\nAppeal by plaintiff from Bailey, Judge. Order entered 14 April 1981 in Superior Court, DURHAM County. Heard in the Court of Appeals 5 March 1982.\nPlaintiff brought an action for loss of consortium of her husband, Ervin Lee Holley, for personal injuries to her husband, and for exemplary damages. In her complaint, plaintiff alleged, in summary, the following events and circumstances. Defendant Burroughs Wellcome Co. manufactures and sells Anectine\u2122, a depolarizing neuromuscular blocking agent, intended for and used as a muscle relaxant to facilitate endotracheal intubation of patients under general anesthesia. Defendant Ayerst Laboratories manufactures and sells Fluothane\u2122, an inhalation anesthetic agent used to induce a state of general anesthesia in humans. While plaintiffs husband, Ervin Holley, was undergoing knee surgery at Duke University Medical Center on 5 April 1976, he was administered both Anectine\u2122 and Fluothane\u2122. During the operation, Holley suffered cardiac arrest and resultant severe and permanent brain damage. Holley\u2019s injuries were caused by the negligent failure of defendants to warn health care providers of the known dangerous characteristics and tendencies of their respective products when used alone or in conjunction with each other. Plaintiffs complaint is lengthy, detailed, and characterized by use of technical words and phrases from the fields of medicine and pharmacology. It was signed by counsel as follows:\nMcCain & Moore\nBy: Grover C. McCain, Jr.\nWilliam H. Moore, Jr.\nCounsel for Plaintiff\nJames M. Ludlow\nCounsel for Plaintiff\nPlaintiff served interrogatories and requests for admissions contemporaneously with her complaint. These documents bear the same counsel\u2019s signatures as did the complaint. On 1 April 1981, defendant Burroughs Wellcome Co. filed a motion to bar Moore from further appearing in the cause, alleging that Moore was not licensed to practice law in North Carolina, that he had not petitioned the Court for admission to practice under Chapter 84 of the General Statutes, and that he was engaged in the practice of law in North Carolina in plaintiffs action. Plaintiffs response to Burroughs Wellcome Co.\u2019s motion, signed by attorneys McCain and Ludlow, alleged plaintiffs desire for Moore to assist her North Carolina counsel in her action, prayed that the trial court deny Burroughs Wellcome Co.\u2019s motion, and requested that the trial court entertain Moore\u2019s motion to be permitted to appear pro hac vice in association with her North Carolina counsel. In support of her response, plaintiff filed affidavits of James M. Ludlow, Gary S. Smithwick, Clark Fischer, Leslie G. Frye, Michael J. Lewis, Thomas J. Keith, Harrell Powell, Jr., and George Rountree, III, all licensed and practicing lawyers in North Carolina. All attested to Moore\u2019s standing as a member of the Georgia bar, his expertise as a practicing lawyer, and his good character.\nDefendant Burroughs Wellcome Co.\u2019s motion came on for hearing before Judge Bailey on 13 April 1981. At that time, Moore moved the trial court to be admitted pro hac vice in plaintiffs action. Moore\u2019s motion was supported by his own affidavit and by a statement to the Court by Ludlow, all of which are set out in full as follows:\nMotion Of William H. Moore, Jr., Of The Georgia Bar To Be Admitted Pro Hac Vice To Appear In Association With Retained North Carolina Counsel\nCome now the movant, William H. Moore, Jr., a member of the State Bar of Georgia, and respectfully moves this Honorable Court to be admitted pro hac vice to appear, in association with retained counsel, for the plaintiff in the captioned cause. Movant shows that he has been retained by James M. Ludlow, retained counsel for the plaintiff to associate and assist Mr. Ludlow in the handling of the captioned cause.\nMovant attaches to his motion that affidavit required by NCGS 84-4. (Illegible)\nWherefore, movant respectfully moves that he be admitted pro hac vice to assist retained counsel in the captioned cause.\ns/William H. Moore, Jr. Movant\nAffidavit Of William H. Moore, Jr.\nPersonally appeared before the undersigned notary public, William H. Moore, Jr., who upon being put upon his oath deposeth and sayeth:\nMy name is William H. Moore, Jr. I am a resident of Savannah, Georgia, residing at 910 Victory Drive, Savannah, Georgia, and I am a member in good standing of the State Bar of Georgia duly licensed and admitted to practice law by the State of Georgia.\nIf I am permitted to appear pro hac vice in the captioned cause, unless permitted to withdraw sooner by this Honorable Court, I will continue to represent the plaintiff in that cause until its final determination with reference to all matters incident to that cause. I will be subject to the orders of, and amenable to, the disciplinary actions and civil jurisdictions of the General Court of Justice in all respects as if I were a regularly admitted and licensed member of the Bar of North Carolina in good standing.\nThe State of Georgia grants the privilege of pro hac vice admissions to members of the Bar of North Carolina in good standing.\nI have been associated by, and will be personally appearing with, two attorneys who are residents of the State of North Carolina who are duly and legally admitted to practice in the General Court of Justice of North Carolina upon whom service may be had in all matters connected with the captioned cause with the same effect as if personally made on me within the State.\nAttached to this affidavit is the statement of James M. Ludlow, retained counsel in the captioned cause, associating me to assist him in the handling of this cause and setting forth his client\u2019s consent to the association.\ns/William H. Moore, Jr.\n(Sworn to this 14th day of April, 1981.)\nStatement Of James M. Ludlow\nMy name is James M. Ludlow. I am an attorney at law, duly licensed and admitted to practice in the General Court of Justice of the State of North Carolina. I maintain my law office at 2514 University Drive, Durham, North Carolina.\nI have been retained by the plaintiff in the captioned case to represent her and her husband, adjudicated an incompetent, in the captioned cause, and at the request and with the expressed consent of the plaintiff I have retained William H. Moore, Jr. of the Savannah, Georgia Bar to associate with and assist me in the handling of the captioned cause as my associate counsel.\nMr. Moore is to be compensated for his services by a portion of my contingent fee at no additional expense to my client.\nI join in Mr. Moore\u2019s motion that he be admitted pro hac vice to appear with and assist me in representing the plaintiff.\ns/James M. Ludlow\nCounsel for Plaintiff\nThe dispositive portions of Judge Bailey\u2019s order are as follows:\n8. William H. Moore, Jr., in signing the complaint, interrogatories, request for admissions and brief and filing the same in this action engaged in the practice of law in this State and made a general appearance on behalf of the plaintiff showing his address as McCain & Moore, 702 West Cobb Street, Durham, North Carolina.\n9. On the date this matter was calendared for hearing, April 13, 1981, William H. Moore, Jr., filed a motion herein entitled Motion of William H. Moore, Jr. of the Georgia Bar to be Admitted Pro Hac Vice to Appear in Association With Retained North Carolina Counsel. Said motion contains an affidavit as required by N.C.G.S. 84-4.1 for limited admission of out-of-state attorneys. However, the said affidavit does not indicate that William H. Moore, Jr. is a \u201cpracticing attorney\u201d in Georgia (N.C.G.S. 84-4.1(1)); but indicates he is licensed and admitted to practice in Georgia; the motion does not contain a statement signed by his client as required by N.C.G.S. 84-4.1(2) but contains a \u201cResponse\u201d by Grover C. McCain, Jr. and James Ludlow, counsel for plaintiff in support of said motion and other affidavits.\n11. William H. Moore, Jr. is not licensed to practice law in the State of North Carolina and he has engaged in unauthorized practice of law herein.\n12. William H. Moore, Jr. failed to file a motion herein to be admitted to practice pursuant to N.C.G.S. 84-4.1 until more than three months following the filing of this action and other documents signed by him, and did so only after motion had been filed challenging his appearance in this matter.\n13. The motion filed by William H. Moore, Jr. fails to meet the requirements of G.S. 84-4.1 as indicated in paragraph 9 of this Order.\nWherefore, It Is Hereby Ordered, in the discretion of the undersigned, that the application of William H. Moore, Jr. to be admitted to practice in the General Court of Justice for the sole purpose of appearing on behalf of the plaintiff, is DENIED. William H. Moore, Jr. shall not, in any manner, further engage in the practice of law in this action.\nPlaintiff has appealed from Judge Bailey\u2019s order.\nSanford, Adams, McCullough & Beard, by Robert W. Spear-man, for plaintiff-appellant.\nTeague, Campbell, Conely & Dennis, by Richard B. Conely, for defendant-appellee.\nNarron, O\u2019Hale and Woodruff, P.A., by Gordon C. Woodruff, on Behalf of the North Carolina Academy of Trial Lawyers, Amicus Curiae." }, "file_name": "0337-01", "first_page_order": 369, "last_page_order": 377 }