PAUL C. WILSON, Judge.
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.
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
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.
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.
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
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 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...."
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.
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."
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
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.
Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977, 982 (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, 113 S.Ct. 716, 121 L.Ed.2d 656 (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., 9 Wheat. 738, 22 U.S. 738, 830, 6 L.Ed. 204 (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 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.
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, 347 Mo. 102, 146 S.W.2d 584, 589 (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
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.
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 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,
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, 363 Mo. 26, 247 S.W.2d 855, 857 (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").
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
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.
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 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.
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
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.
Curry v. Dahlberg, 341 Mo. 897, 112 S.W.2d 345, 345-46 (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 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 —
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.
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:
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 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
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.
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 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:
Id. at 584 n. 3.
By holding that Dilks' actions constituting the unauthorized practice of law must
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.
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
For the reasons stated above, the judgment of the trial court is affirmed.
