Naylor Senior Citizens Housing, LP, and John Dilks v. Sides Construction Company, Inc. ( 2014 )

SUPREME COURT OF MISSOURI
en banc
NAYLOR SENIOR CITIZENS HOUSING, )
LP, ET AL., )
)
Appellants, )
)
AND )
JOHN DILKS, )
Plaintiff, )
)
v. ) No. SC93404
)
SIDES CONSTRUCTION COMPANY, INC., )
ET AL., )
)
Respondents. )
)
APPEAL FROM THE CIRCUIT COURT OF RIPLEY COUNTY
The Honorable Michael Ligons, Judge
Opinion issued February 25, 2014
On September 21, 2011, John Dilks filed a pro se petition (the “Original Petition”)
to recover damages he suffered as a result of a flood on September 22, 2006. Those
claims (since amended) are not involved in this appeal. Instead, this appeal concerns
only the claims that Dilks also attempted to assert in the Original Petition on behalf of
Naylor Senior Citizens Housing, LP and Naylor Senior Citizens Housing II, LP
(collectively, the “Partnerships”). As statutory entities, the Partnerships may not appear
in Missouri courts except through a licensed attorney. Because Dilks is not a licensed
attorney, his attempt to assert claims on behalf of the Partnerships constitutes the
unauthorized practice of law and may not be given effect. Accordingly, the trial court
dismissed the Original Petition to the extent it purports to assert claims on behalf of the
Partnerships. That judgment is affirmed.
I. Background
Dilks was the only person to sign the Original Petition. It alleges a single count
and concludes with this prayer: “Plaintiffs request judgment against Defendants, jointly
and severally, for damages” relating to stormwater flooding that occurred on September
22, 2006. The “Plaintiffs” identified in the allegations of the Original Petition are Dilks,
individually, and the Partnerships, both of which are Missouri statutory limited
partnerships.
On October 29, 2011, Defendant Schulz Engineering Services, Inc. (“Schulz”),
sought to dismiss Dilks’ own claims in the Original Petition on the ground that he lacked
standing to sue for damage suffered by the Partnerships. Schulz also moved to dismiss
the claims that Dilks attempted to assert on behalf of the Partnerships because the
Partnerships cannot represent themselves and Dilks cannot represent them because he is
not a licensed attorney. Ultimately, all defendants asserted similar motions and
arguments.
Nearly seven weeks passed before Dilks or the Partnerships offered any response
to these motions. When plaintiffs finally responded on December 21, 2011, they did so
through a licensed attorney. Plaintiffs’ counsel, however, did not file or seek leave to
file – at this time or any other – a “corrected” signature page for the Original Petition
pursuant to Rule 55.03(a). Instead, plaintiffs’ counsel filed a “Reply to Motions to
Dismiss,” supported by an affidavit from Dilks. 1
This reply contends that the defendants’ motions to dismiss the Partnerships’
claims should be denied – not because Rule 55.03(a) allows their counsel to correct the
Original Petition’s defect – but because the Original Petition is effective regardless of
Dilks’ improper conduct in signing and filing it on behalf of the Partnerships. The reply
argues, therefore, that the Partnerships should be given “a reasonable time to file an
amended petition, provided it is signed by a licensed Missouri attorney.” Finally, the
reply contends that Dilks has standing to assert his own claims because his damages are
separate and distinct from the Partnerships’ damages.
1
In this affidavit, Dilks states that he believed (or had been told) that claims for flood damages
were governed by a five-year statute of limitations. Therefore, he states that he began working
with a lawyer to prepare the Partnerships’ claim at least three months prior to the end of that
period. On the day before the five-year period was to expire, however, this lawyer told Dilks
that neither the lawyer nor his firm could represent Dilks or the Partnerships due to a conflict of
interest. However, the lawyer told Dilks that – because the five-year period was about to expire
– he had drafted a petition for Dilks to sign and file. On September 21, 2011, therefore, Dilks
admits that he signed and filed the Original Petition asserting both his own claims and claims on
behalf of the Partnerships. Consideration of Dilks’ affidavit is improper, however, because
neither the trial court nor the appellate court on de novo review may consider matters outside the
pleadings when adjudging a motion to dismiss. City of Lake Saint Louis v. City of O'Fallon, 324
S.W.3d 756, 759 (Mo. banc 2010). Such materials may be considered only if the trial court
converts the motion to one for summary judgment and provides notice that it is doing so. See
Rule 55.27(a). If the trial court gives no such notice and the judgment expressly grants the
motion to dismiss, this is an affirmative statement that the trial court did not convert the motion
and, more importantly, that it did not consider matters outside the pleadings. Hoover v. Mercy
Health, 408 S.W.3d 140, 142 (Mo. banc 2013). Appellate courts are bound by such statements
and, as a result, cannot consider extraneous submissions or review decisions the trial court did
not make. Id. Here, the trial court gave no notice of conversion, and the judgment grants the
motions to dismiss as such. Accordingly, Dilks’ affidavit is not properly before the Court. In
any event, the relevant facts of this appeal are admitted, and justifications or explanations cannot
change the legal effect of those facts.
3
On January 20, 2012, the same day that the motions to dismiss were argued and
submitted, plaintiffs’ counsel filed a motion titled: “Motion for Leave to File First
Amended Petition and Proposed First Amended Petition.” The proposed amended
petition (attached to this motion as an exhibit) does not simply substitute counsel’s
signature for Dilks’ signature on the Original Petition. Instead, the proposed amended
petition seeks to add new factual allegations and new legal theories and tries to divide the
Original Petition’s single count into two separate counts: one on behalf of Dilks, and the
other on behalf of the Partnerships. The trial court never ruled on this motion, however,
and the Partnerships concede they seek no relief in this appeal with respect to that
motion.
On March 7, 2012, the trial court dismissed the Partnerships’ claims on the ground
that – because Dilks was not a licensed attorney and he attempted to assert claims in the
Original Petition on behalf of the Partnerships – the Original Petition was “a nullity” and
“had no legal effect from the date of filing” for purposes of asserting claims on behalf of
the Partnerships. The Original Petition plainly was effective for the purpose of asserting
Dilks’ personal claims, however. Accordingly, the trial court declined to dismiss those
claims but ordered Dilks to file an amended petition making his claims more definite and
certain.
On March 26, 2012, Dilks’ counsel signed and filed a pleading titled “First
Amended Petition” (the “Amended Petition”). This pleading is not the proposed
amended petition that counsel sought leave to file in January 2012, and the Amended
Petition does not even purport to assert claims on behalf of the Partnerships. Instead, it
4
contains no allegations identifying the Partnerships as plaintiffs, it ends with a prayer
seeking only damages on behalf of Dilks, and – as if to remove any doubt – the
customary recital at the beginning of the Amended Petition begins: “Comes now Plaintiff
John Dilks, and for his cause of action against Defendants states ….” 2
On March 30, 2012, counsel filed a motion on behalf of the Partnerships
requesting that the trial court reconsider its March 7 order dismissing the Partnerships’
claims in the Original Petition or, in the alternative, to denominate that order as a
judgment pursuant to Rule 74.01(a) and certify it for immediate appeal pursuant to
Rule 74.01(b). The trial court overruled the motion to reconsider but, on May 2, 2012,
restated the March 7 order in the form of a “partial judgment” and made the findings
required for immediate appeal.
Because this judgment dismisses the Original Petition only insofar as it purports to
assert claims on behalf of the Partnerships and does not dismiss Dilks’ personal claims
(now asserted in the Amended Petition), only the Partnerships appeal from this judgment.
They seek to have the dismissal vacated and their claims remanded for further
proceedings. This Court has jurisdiction of the appeal, see Mo. Const. art. V, § 10, and
the trial court’s judgment is affirmed.
2
The caption on the Amended Petition does refer to the Partnerships, but “parties to a cause of
action are determined by reference to the body of the petition, not the caption.” McBee v.
Gustaaf Vandecnocke Revocable Trust, 986 S.W.2d 170, 172 (Mo. banc 1999).
5
II. Analysis
A. Final and Appealable Judgment
The trial court’s judgment dismissing the Partnerships’ claims is silent as to
whether that dismissal was with or without prejudice. Under Rule 67.03, therefore, the
dismissal is assumed to be without prejudice. This raises a question of whether the
judgment is final and appealable, however, because this Court occasionally has referred
to a “general rule that a dismissal without prejudice is not a final judgment and, therefore,
is not appealable.” Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo.
banc 1997).
It is unclear to what extent, if any, this “general rule” ever was followed. Over
time, however, exceptions seemed to have swallowed all or nearly all of whatever rule
once might have existed. For example, in Chromalloy, this Court held that a dismissal
without prejudice may be appealed if – but only to the extent that – the dismissal decides
some issue with preclusive effect. Id. Here, the trial court’s judgment states that the
Original Petition was not effective for the purpose of asserting claims on behalf of the
Partnerships. That judgment has preclusive effect in the sense that no subsequent action
by the Partnerships can correct the defect noted in the judgment or render the Original
Petition effective for that purpose. Accordingly, the Partnerships are entitled to appellate
review of this judgment. Id. (recognizing exception to the “general rule” where the
“dismissal has the practical effect of terminating the litigation in the form cast”)
(emphasis added).
6
B. Limited Partnerships May Appear and Assert
Claims Only By and Through a Licensed Attorney
A natural person ordinarily is entitled to appear and assert claims on his own
behalf in Missouri’s courts, but a corporation may appear only through an attorney
licensed or admitted to practice here by this Court.
A corporation is not a natural person. It is an artificial entity created by
law. Being an artificial entity it cannot appear or act in person. It must act
in all its affairs through agents or representatives. In legal matters, it must
act, if at all, through licensed attorneys.
Clark v. Austin, 101 S.W.2d 977, 982 (Mo. banc 1937) (emphasis added). This view is
shared almost universally. See, e.g., Rowland v. California Men’s Colony, Unit II Men’s
Advisory Council, 506 U.S. 194, 201-02 (1993) (“It has been the law for the better part of
two centuries, for example, that a corporation may appear in the federal courts only
through licensed counsel.”); 19 Am. Jur. 2d Corporations § 1874 (citing Osborn v. Bank
of U.S., 22 U.S. 738, 830, (1824) (Marshall, C.J.) (“A corporation, it is true, can appear
only by attorney, while a natural person may appear for himself.”)).
Limited partnerships, like corporations, are not natural persons. They exist solely
because of – and only to the extent they comply with – the provisions of chapter 359 of
the Revised Statutes of Missouri, titled “Uniform Limited Partnership Law.” See, e.g.,
§ 359.091.1, RSMo 2000 (“to form a limited partnership, a certificate of limited
partnership shall be executed and filed in the office of the secretary of state”). The
Partnerships suggest no principled basis for distinguishing between corporations and
other statutory entities for this purpose, and this Court finds none. Accordingly, the
7
Court holds that limited partnerships, as statutory entities, may appear in the courts of this
state only through an attorney licensed or admitted to practice here by this Court.3
1. Statutory Entities Cannot Appear on their Own Behalf
The extension of this rule to limited partnerships highlights that the rule actually is
an amalgam of two entirely separate – but seldom separated – concepts, one factual and
the other legal. First, statutory entities cannot act except through individuals acting on
their behalf. This premise is not a pronouncement of law or policy; it is an
acknowledgment of indisputable fact. Schneider v. Schneider, 146 S.W.2d 584, 589 (Mo.
1940) (“A corporation, being an artificial person created by operation of law, can act only
through its officers, directors and agents.”) Therefore, the Court is not withholding
permission for statutory entities to appear in court on their own behalf. Instead, the
Court is acknowledging that it simply is not possible for a “legal fiction” to be anywhere
or do anything – including, but not limited to, appearing in court – unless some individual
does so on its behalf. Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343,
348 (1985) (“As an inanimate entity, a corporation must act through agents.”).
3
Limited partnerships are fundamentally different than general partnerships for purposes of this
analysis. Under Missouri law, a general partnership “has no legal existence apart from its
members.” Haney v. Thompson, 98 S.W.2d 639, 644 (Mo. banc 1936). This view was codified
in the Uniform Partnership Act. Kelley v. DeKalb Energy Co., 865 S.W.2d 670, 671 (Mo. banc
1993) (“Under Missouri’s version of the Uniform Partnership Act, a partnership is not a legal
entity separate from the individual partners.”). For that reason, a general partnership “cannot sue
or be sued in the firm name, and … a judgment rendered for or against the partnership will be
reversed on appeal.” Haney, 98 S.W.2d at 644. A statutory limited partnership, on the other
hand, is a separate legal entity from its partners and, therefore, can sue or be sued in its own
name. § 359.081.
8
It is this basic fact that distinguishes statutory entities and natural persons for
purposes of this rule. Dilks was not representing anyone or anything when he asserted
his own claims by signing and filing the Original Petition. He was appearing and
asserting those claims “for himself,” which is the literal meaning of the phrase “pro se.”
Whether the Court should allow natural persons to appear for themselves is the sort of
legal or policy decision addressed below. For purposes of this first determination,
however, what matters is that a natural person physically is able to appear on his own
behalf and a statutory entity physically is not. 4 See Annotation: Propriety and Effect of
Corporation’s Appearance Pro Se Through an Agent Who is Not an Attorney,
8 A.L.R. 5th 653 (1992) (“corporation, regarded by the law as an artificial entity,
obviously cannot appear on its own behalf, and thus it must appear through an agent”).
2. Individuals Representing Statutory
Entities Must be Licensed Attorneys
Having first determined, as a practical matter, that statutory entities cannot appear
anywhere unless some individual appears on their behalf, the second aspect of this rule is
the legal or policy decision as to whether this individual must be a licensed attorney. The
first concept is an indisputable, unavoidable fact; this second concept, though a matter of
policy, is just as certain and just as unavoidable.
The question of who should be allowed to act on behalf of the statutory entity and
under what circumstances ordinarily is a question for the legislature, which often will set
4
Regarding Oakland, California, it is said: “There is no there there.” Stein, Everybody’s
Autobiography, at 289 (Random House 1937). So, too, it might be said of a statutory
entity: “It has no it in it.”
9
certain boundaries but leave some discretion to the entity. See, e.g., § 351.310, RSMo
2000 (corporation “shall be controlled and managed by a board of directors” but
qualifications of directors may be prescribed in the articles of incorporation, or in the
bylaws); § 359.251, RSMo 2000 (“Except as provided in this chapter or in the partnership
agreement, a general partner of a limited partnership has the rights and powers and is
subject to the restrictions of a partner in a partnership without limited partners.”).
When the question is who may be allowed to appear on behalf of a statutory entity
in Missouri’s courts, however, this Court – and only this Court – must supply the answer
because it is the “sole arbiter of what constitutes the practice of law.” Hulse v. Criger,
247 S.W.2d 855, 857 (Mo. banc 1952).
A precise and comprehensive definition of the practice of law has proved elusive
over the last two centuries. See, e.g., Clark, 101 S.W.2d at 982 (it is “difficult to give an
all-inclusive definition of the practice of law, and we will not attempt to do so”).
Fortunately, this case does not require the Court to divine a complete and exhaustive
definition either. This is because – no matter what else may or may not be included in
such a definition – the act of appearing in court to assert or defend claims on behalf of
another lies at the very heart of the practice of law. See § 484.010.1, RSMo 2000 (the
practice of law includes the “appearance as an advocate in a representative capacity ... in
connection with proceedings pending or prospective before any court of record”). 5
5
Even though this Court is the “sole arbiter” of what constitutes the practice of law, it “has
used these statutory definitions … as a reference point for determining the scope of the practice
of law.” Hargis v. JLB Corp., 357 S.W.3d 574, 578 (Mo. banc 2011).
10
As noted above, this Court permits most individuals to act for themselves in
Missouri’s courts but requires statutory entities to be represented by licensed attorneys.
This disparity seems unfair to some because many of the justifications for requiring
statutory entities to be represented by licensed attorneys (e.g., attorneys are trained to
provide quality representation and are subject to ethical rules and professional standards)
also could be used to justify a prohibition against self-representation by natural persons.
This argument misses the critical distinction. When an individual appears pro se, i.e., for
himself, that person is not engaging in the practice of law because he is not representing
another in court. 6
On the other hand, because a statutory entity cannot do anything “for itself,” the
only way it can appear in court is to have an individual appear on its behalf. That
individual, by definition, is “representing another” in court and, therefore, necessarily is
engaging in the practice of law. Once this is understood, the requirement that a statutory
6
Of course, not all individuals are allowed to appear for themselves (e.g., minors, incompetent
or incapacitated individuals, etc.), and the Court could require all individuals to be represented
even though their pro se appearances do not constitute the practice of law. One reason the Court
historically has allowed this practice, however, is that when a natural person decides to appear
for himself in court, both the responsibility for and consequences of that decision belong to the
same person. The choice to forego legal representation is made by the same individual who will
be present in court to make the myriad of decisions that arise in litigation, and the consequences
of these decisions will fall directly on the one who made them. But no such confluence of cause
and effect can exist with a statutory entity. As noted above, the decision to forego legal
representation is made for – not by – a statutory entity, and the consequences of that choice
likely will affect more than just the one (or ones) who made it. Finally, because the person
chosen to appear on behalf of the entity in court likely will not be the one (or even among those)
who decided to forego legal counsel for the entity, that person will not necessarily know what
those “decision makers” want done on behalf of the entity when decisions must be made in the
courtroom. See, e.g., Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348-49
(1985) (“A corporation cannot speak directly to its lawyers. Similarly, it cannot directly waive
11
entity’s representative be a licensed attorney is inescapable, because this Court restricts
the practice of law solely to attorneys licensed or admitted to practice by this Court. De
Pass v. B. Harris Wool Co., 144 S.W.2d 146, 148 (Mo. banc 1940) (“Missouri has
adopted a policy that the practice of law and the doing of law business, both in and out of
its courts, shall be limited to persons with special qualifications and duly licensed as
attorneys”); Hulse, 247 S.W.2d at 857-58 (“The practice of law in Missouri, as in other
states, long has been restricted solely to licensed attorneys so as to ‘protect the public
from being advised or represented in legal matters by incompetent or unreliable
persons.’”).
Accordingly, the Court holds that limited partnerships – as statutory entities – may
appear in Missouri courts only through a licensed attorney. Dilks, who is not a licensed
attorney, had no more authority to sign and file pleadings on behalf of the Partnerships
than he did for his next door neighbor. His attempt to assert claims on behalf of the
Partnerships by signing the Original Petition constituted the unauthorized practice of law.
C. Dismissal was Proper Because Actions Constituting the
Unauthorized Practice of Law are Not to be Given Effect
The Partnerships mount only token resistance to the foregoing holding that limited
partnerships – like other statutory entities – may appear in Missouri’s courts only through
an attorney licensed or admitted to practice by this Court. Instead, the Partnerships’ main
line of resistance is that Dilks’ unauthorized practice of law should be treated – at least
the privilege when disclosure is in its best interest. Each of these actions must necessarily be
undertaken by individuals empowered to act on behalf of the corporation.”).
12
for a while – as though it was authorized. Specifically, the Partnerships contend that “the
nullity rule has been or should be abolished” and, therefore, the trial court erred by not
giving “the party who failed to properly sign the pleading an attempt [sic] to correct the
omission.” In other words, the Partnerships ask this Court to hold that the trial court
erred: (1) by refusing to treat the Original Petition, which was signed by Dilks, as though
it had been filed by an attorney who forgot to sign it; and (2) by refusing to treat the
motions to dismiss merely as the means by which defendants called this “omitted
signature” to the Partnerships’ attention and thereby triggered the Partnerships’ right
under Rule 55.03 to correct that omission. 7 The Court finds no such errors.
1. Acts Constituting the Unauthorized Practice
Of Law Must Not be Given Effect
The acts of someone engaged in the unauthorized practice of law may not be given
effect as though the practice was authorized. Such acts may draw sanctions in the form
of quo warranto proceedings, contempt citations, or criminal charges. Hulse, 247
S.W.2d at 856; Clark, 101 S.W.2d at 993. But regardless of whether any of these
sanctions (or others) is appropriate in a given case, the Court holds now – as it has in the
past – that actions constituting the unauthorized practice of law must not be recognized or
given effect. Reed v. Labor & Indus. Relations Comm’n, 789 S.W.2d 19, 23 (Mo. banc
7
As discussed below, the Partnerships’ arguments contradict established precedent that serve
an important purpose. It is worth noting, however, that these arguments also contradict reality.
Dilks is not a lawyer, and he did not forget to sign the Original Petition. He signed it, in part, in
an attempt to assert claims he was not authorized to assert. In addition, the motions to dismiss
were not simply reminders to Dilks that he forgot to sign the petition. They timely requested that
Partnerships’ claims be dismissed because Dilks’ attempt to assert them in the Original Petition
was not – and never could have been – effective.
13
1990) (“Any such filings by a lay person on behalf of a corporate employer will be
considered untimely filed and null and void.”).
To take any other position would be to say that the unauthorized practice of law is
not really wrong, merely less preferred than authorized practice; or that laypersons may
represent others (including statutory entities) in court, but only for a limited time. The
Court will not send such mixed signals by substituting the fairness and predictability of
this bright-line rule with a situational ethic based upon a post hoc weighing of
circumstances and balancing of harms.
The Court determined long ago that the practice of law by unlicensed individuals
is wrong; wrong for the courts, wrong for clients, and wrong for society.
This court believes that it has the responsibility and the duty to concern
itself both with regard to proper conduct of licensed practitioners and with
unlawful practice of law by all others to the end that legal services required
by the public, and essential to the administration of justice, will be rendered
by those who have been found by investigation to be properly prepared to
do so by conforming to strict educational standards, and who demonstrate
that they have the character to conform to higher standards of ethical
conduct than are ordinarily considered necessary in business relations
which do not involve the same fiduciary and confidential relationships.
Curry v. Dahlberg, 112 S.W.2d 345, 345-46 (Mo. banc 1937). Having made this
determination, the Court has a duty to adhere to and enforce it.
Citing the rule while excusing a violation, and thereby allowing the violator to
profit from the disobedience, is not enforcement. Instead, enforcing this rule requires
clear requirements regarding what is and is not allowed, together with predictable
consequences to eliminate any incentive to violate the rule. It should go without saying
that allowing the unauthorized practice of law to further the interests of the illegitimate
14
practitioner (and/or those of the “client”) necessarily will increase the incidents of
unauthorized practice and the harm that this Court has said such conduct causes.
Nor should there be any reason to hesitate about depriving a statutory entity of the
effects of its unlicensed representative’s actions in a particular case. It is not possible to
engage in the unauthorized practice of law accidentally. Anyone asserting or defending
claims on behalf of another in court knows that he or she is doing so. Moreover, those
who act for a statutory entity also know (and, therefore, the entity knows) that a
layperson cannot appear for the entity in court without engaging in the unauthorized
practice of law.
This case makes these points well. Dilks – individually and as an agent for the
Partnerships – knew that the Partnerships needed a licensed attorney to assert their claims
in court, and he retained an attorney for that purpose. When that attorney later refused to
represent the Partnerships, Dilks decided (on behalf of the Partnerships) that he would
represent them – despite not being a licensed attorney – because he feared that the
Partnerships’ claims otherwise might be lost. 8
8
Dilks, and only Dilks, is responsible for his own choices and misconduct. It may be, however,
that the fault for creating the circumstances that led to this misconduct should lie with Dilks’ first
lawyer. Accordingly, after the mandate issues in this case, the Court will request the Office of
the Chief Disciplinary Counsel to investigate the conduct described in Dilks’ affidavit.
Obviously, that affidavit reflects only Dilks’ version of these events and, therefore, the Court
expresses no view about whether this investigation will or should show that violations of Rule 4
occurred. But it is an essential aspect of our self-regulated profession that, when a court receives
information indicating a substantial likelihood that an attorney has engaged in unprofessional
conduct, this information must be reported and investigated appropriately. See Rule 2-2.15(D).
15
Therefore, even though Dilks knew he was not authorized to represent the
Partnerships in court, he violated this Court’s prohibition against the unauthorized
practice of law because he hoped that his illegal actions nevertheless would be given
effect, resulting in a benefit both to the Partnerships’ interests and to his own. It could
not be any more plain: the Court’s decision in this case either will discourage such
actions in the future, or encourage them.
2. Rule 55.03(a) Does Not Apply to the Unauthorized Practice of Law
Dilks argues that his actions should be analyzed under Rule 55.03(a). This
argument is contrary both to the purpose of that rule and its plain language. Rule
55.03(a) provides:
Every pleading, motion, and other filing shall be signed by at least one
attorney of record in the attorney's individual name or by the
self-represented party. ... An unsigned filing or an electronic filing without
the required certification shall be stricken unless the omission is corrected
promptly after being called to the attention of the attorney or party filing
same.
The purpose of this rule is not to prevent the unauthorized practice of law.
Instead, the purpose of Rule 55.03 is to ensure that every filing is properly ascribed to –
and binding upon – the party filing it. Counsel of record are presumed, without any
further showing, to be authorized to file papers on behalf of the party they represent and,
more importantly, to bind that party to the arguments and facts contained therein.
Osborn, 22 U.S. at 830-31. By the same token, an individual who signs and files a paper
pro se (i.e., for himself) cannot dispute that the filing is binding on that individual. Rule
55.03 exists to ensure that this certainty, which should result from the requirement that
16
every party be self-represented or represented by counsel of record, is realized by
requiring that all filings be signed by a party’s counsel of record or directly by a
self-represented party.
Not only is Rule 55.03(a) not designed to prevent the unauthorized practice of law,
the plain language of this rule shows that it cannot apply to such situations. The first
sentence of Rule 55.03(a) states that all filings must be signed by “an attorney of record
… or by the self-represented party.” The last sentence clarifies that a failure to do so can
be corrected (in certain circumstances) only by “the attorney or party filing the same.”
These two sentences, read together, establish beyond any doubt that Rule 55.03(a) applies
only to papers filed by – but without the signature of – an “attorney of record” or “the
self-represented party.” Accordingly, Rule 55.03(a) does not apply where a pleading is
signed and filed by someone who is engaged in the unauthorized practice of law. Such a
person, by definition, is not a “self-represented party” or an “attorney of record.”
Here, it is nonsensical (not to mention a severe distortion of the facts) to suggest
that the Partnerships are “self-represented parties” who filed the Original Petition in the
circuit court but forgot to sign it. As statutory entities, the Partnerships cannot file or sign
anything unless some individual performs those acts on their behalf. Nor was the
Original Petition filed on behalf of the Partnerships by their “counsel of record” who
forgot to sign it. Dilks is not a licensed attorney, nor did he “forget” to sign the petition.
Accordingly, because the plain language of Rule 55.03(a) does not purport to apply to
this situation, the Partnerships cannot avail themselves of the final sentence of
Rule 55.03(a) to supply an “omitted” signature.
17
The Partnerships argue that this holding conflicts with Glover v. State, 225 S.W.3d
425 (Mo. banc 2007). This is incorrect. Glover involves an inmate’s motion for
post-conviction relief under Rule 29.15. As natural persons, inmates are entitled to file
motions under Rule 29.15 on their own behalf. See 29.15(e) (anticipating motions will be
filed pro se). In Glover, this Court held that a movant’s failure to sign his initial
Rule 29.15 motion cannot be used to attack the motion court’s judgment on appeal,
particularly where the inmate substituted a signed signature page promptly after the state
called the omission to his attention. Glover, 225 S.W.3d at 427-28. Unlike the present
case, Glover is a proper application of Rule 55.03. There was no unauthorized practice of
law in Glover because the party who failed to sign the pleading was a natural person.
Therefore, because the inmate’s motion (unlike the Original Petition here) was filed by a
party capable of self-representation, the plain language of Rule 55.03(a) was applicable.
The Partnerships’ reliance on Hensel v. American Air Network, 189 S.W.3d 582
(Mo. banc 2006), is misplaced for many of the same reasons. There, the plaintiffs were
individuals who were represented both by a Kentucky attorney and an attorney licensed
by this Court. Id. at 583. Plaintiffs’ Kentucky counsel signed their petition, and the
Missouri attorney filed it, along with a motion that Kentucky counsel be admitted to
practice pro hac vice. Though this motion ultimately was sustained, permission to appear
pro hac vice was delayed because the motion initially was incomplete. As a result, the
Kentucky counsel of record who signed the petition on behalf of the plaintiffs was not
entitled to practice in this state at the time the petition was filed. Id. This Court held that,
even assuming that (1) Kentucky counsel’s signature failed to comply with Rule 55.03
18
because permission to appear pro hac vice was not granted before (or contemporaneously
with) the filing of the petition, and (2) Missouri counsel’s initials (added when it
appeared that the pro hac vice motion would be delayed) were not sufficient for purposes
of Rule 55.03(a), the plaintiffs were natural persons who were capable of
self-representation and, therefore, were entitled to cure their missing signature in a
prompt manner. Id. at 584 (noting that the holding was limited to circumstances
“involving an individual”).
Moreover, this Court in Hensel specifically warned against future attempts to
extend its rationale to cases in which the party is a statutory entity:
The rule is different with respect to filings on behalf of a corporation. Reed
v. Labor and Indus. Relations Comm’n, 789 S.W.2d 19, 23 (Mo. banc
1990) (“It is axiomatic that a corporation must act through an attorney in all
legal matters”).
Id. at 584 n.3.
By holding that Dilks’ actions constituting the unauthorized practice of law must
not be given effect, the Court keeps faith with the warning given in Hensel and with the
holding of numerous earlier cases. See, e.g., Reed, 789 S.W.2d at 23 (“filings by a lay
person on behalf of a corporate employer will be considered … null and void”); Prop.
Exch. & Sales, Inc., (PESI) by Jacobs v. Bozarth, 778 S.W.2d 1, 3 (Mo. App. 1989)
(dismissing petition because “a corporation cannot act in legal matters or maintain
litigation without the benefit of an attorney”); Credit Card Corp. v. Jackson Cnty. Water
Co., 688 S.W.2d 809, 811 (Mo. App. 1985) (dismissing appeal because appellant
19
corporation was not represented by counsel). 9 Actions taken in court by a layperson on
behalf of another may not be given effect and, when objected to in a timely manner, must
be stricken.
The Partnerships contend that Reed was “severely restricted, if not reversed” by
Haggard v. Div. of Employment Sec., 238 S.W.3d 151, 154 (Mo. banc 2007). This is
incorrect. Haggard reaffirms the principle that – in the absence of special dispensation
from this Court – only natural persons are entitled to appear on their own behalf. Id. at
154 (“DES is not entitled to be represented by a non-lawyer employee”). Moreover, the
Court held that “[o]ne cannot consent to the unauthorized practice of law” or waive the
requirement that all parties other than natural persons be represented by licensed
attorneys. Id.
9
This rule is so well established that the Court rarely has had cause to address it. The court of
appeals, on the other hand, is well-schooled in its application. See, e.g., Palmore v. City of Pac.,
393 S.W.3d 657, 664 (Mo. App. 2013) (because “application for trial de novo was not filed by an
attorney, its application was void ab initio”); 6226 Northwood Condo. Ass’n v. Dwyer, 330
S.W.3d 504, 506 (Mo. App. 2010) (“where a representative engages in the unauthorized practice
of law, the proper remedy is to dismiss the cause or treat the actions taken by the representative
as a nullity”); Schenberg v. Bitzmart, Inc., 178 S.W.3d 543, 544 (Mo. App. 2005) (“normal effect
of a representative’s unauthorized practice of law is to dismiss the cause or treat the particular
actions taken by the representative as a nullity”); Joseph Sansone Co. v. Bay View Golf Course,
97 S.W.3d 531, 532 (Mo. App. 2003) (“action taken on behalf of a corporation by a non-attorney
representative may be void and can result in dismissal”); Strong v. Gilster Mary Lee Corp., 23
S.W.3d 234, 241 (Mo. App. 2000) (filings “by a person unauthorized to practice law are a
‘nullity,’ and hence may properly be dismissed”); Sellars By & Through Booth v. Denney, 945
S.W.2d 63, 66 (Mo. App. 1997) (because an unlicensed individual may not represent another
person in court, “the notice of appeal and brief … are nullities”); Stamatiou v. El Greco Studios,
Inc., 935 S.W.2d 701, 702 (Mo. App. 1996) (pleading filed by corporate officer who was not a
licensed attorney “was not properly before the circuit court … and the circuit court should have
dismissed it without considering its allegations”); Risbeck v. Bond, 885 S.W.2d 749, 750 (Mo.
App. 1994) (where corporation was “represented by a person unauthorized to do so, the trial
court properly dismissed the petition”); Show-Me Restoration Servs. v. Harlan, 778 S.W.2d 350,
20
But where a party fails to object promptly to such conduct, Haggard holds that the
party cannot later attack the validity of a judgment or other ruling by the court or
administrative tribunal before which the improper representation occurred. Id. at 155-56.
In other words, it is only actions constituting the unauthorized practice of law that must
not be given effect; the proceedings in which that conduct occurs remain valid. True
jurisdictional prerequisites in our courts are rare, and a perfect array of properly
represented parties is not one of them. Id. at 155. See also J.C.W. ex rel. Webb v.
Wyciskalla, 275 S.W.3d 249, 254 (Mo. banc 2009). Accordingly, Haggard did not take
issue with the application in Reed of the long-standing rule that pleadings signed and
filed by those who are engaged in the unauthorized practice of law for parties that are not
capable of self-representation are “null and void.” Instead, Haggard holds only that
judgments resulting from proceedings in which that conduct occurs may not be attacked
on that basis when no objection to the conduct was asserted in a timely manner. 10
351 (Mo. App. 1989) (papers stricken because “filed by plaintiff’s vice president and co-owner
[who is] not an attorney”).
10
Of course, no objection or motion is required for a court to act sua sponte to strike filings on
this basis. Haggard, 238 S.W.3d at 154 (parties “cannot consent to the unauthorized practice of
law”). But, as a practical matter, the parties are in a superior position to identify misconduct of
this type. Trial courts cannot monitor every filing in every case and may have no occasion to
review any filing in a given case until that case (or some part of it) is presented for decision, at
which time the court’s attention properly is on the merits of the dispute and not the propriety of
the parties’ representation.
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III. Conclusion
For the reasons stated above, the judgment of the trial court is affirmed. 11
___________________________
Paul C. Wilson, Judge
11
The briefs and arguments of all parties claim that there was general agreement in the trial
court that the Partnerships’ claims are subject to a five-year statute of limitations and, therefore,
those claims would be barred if not asserted in the Original Petition. On appeal, the Partnerships
contend that the trial court shared this assumption and that this assumption is reflected in the
judgment. This Court disagrees. None of the Defendants’ motions to dismiss argued that the
Partnerships’ claims would be barred unless filed on or before September 21, 2011, or that any
attempt by the Partnerships to bring their claims after that date would not relate back to the
Original Petition, which all parties concede was effective for purposes of asserting Dilks’ claims.
Therefore, whatever the trial court’s beliefs may have been concerning the applicable statute of
limitations, that issue was not addressed in the judgment. Consequently, this Court makes no
determination as to the applicable limitation period(s) or whether any claim is or is not barred. If
the Partnerships, through counsel, seek leave in an appropriate motion to assert their claims as
the case progresses, nothing in this opinion should be taken as expressing any view regarding
whether such a motion should be sustained or, if sustained, whether such claims relate back
under Rule 55.33 to September 21, 2011, when Dilks’ claims first were filed. Compare
Thompson v. Brown & Williamson Tobacco Corp., 207 S.W.3d 76, 117 (Mo. App. 2006)
(holding amendment adding a new plaintiff and new claim related back to original plaintiff’s
date of filing) with Caldwell v. Lester E. Cox Med. Centers-S., Inc., 943 S.W.2d 5, 9 (Mo. App.
1997) (holding father’s amendment adding son’s lost chance of survival claim in father’s
capacity as plaintiff ad litem did not relate back to original wrongful death claim filed in father’s
individual capacity).
22