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Tobacco Superstore4/28/2005
04-1329 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 w
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