Opinion handed down February
25, 2014
John
Dilks (“Dilks”) filed a pro se petition
on behalf of himself, Naylor Senior Citizens Housing, LP and Naylor Senior
Citizens Housing II, LP (collectively “Partnerships”) to recover damages from
construction companies for harm he suffered as a result of a flood on September
22, 2006. [2] Dilks’ signature was the only one present on the original
petition.[3] Sides Construction Company, Inc. and Schulz Engineering Services,
Inc. (collectively “Defendants”) filed a motion to dismiss on October 29, 2011
claiming Dilks lacked standing to assert claims on behalf of the Partnerships
because he was not a licensed attorney.[4] In response, Dilks filed a “Reply to
Motions to Dismiss” arguing the original petition was effective regardless of
Dilks’ improper conduct in signing and filing it on behalf the Partnerships; the
Partnerships should be given reasonable time to file an amended petition; and
Dilks had standing to assert his own claims because his damages were
separate and distinct from the
Partnership’s damages. [5] The trial court agreed with Defendants and dismissed
the claims Dilks brought on behalf of the Partnerships because Dilks was not a
licensed attorney and the original petition had no legal effect. [6] Dilks
hired counsel, and on March 30, 2012, 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 at least certify it for
immediate appeal under rule 74.01(b). [7] The trial court denied the motion to
reconsider, but made the findings required for immediate appeal on May 2, 2012.
[8] The Missouri Supreme Court assumed jurisdiction under Mo. Const. art. V, §
10 and the trial court’s judgment was affirmed. [9]
I. Facts and Holding
Dilks
brought and action requesting “judgment against Defendants, jointly and
severally, for damages” that stemmed from a storm water flood that occurred in
September 2006. [10] The “Plaintiffs” listed in the original petition included
Dilks, individually, and the Partnerships.[11] However, Dilks was the only individual
to sign the original petition.[12]
On
October 29, 2011, Defendants sought to dismiss the claim because Dilks lacked
standing to sue for damages suffered by the Partnerships. [13] Defendants
argued that Partnerships cannot represent themselves, and Dilks cannot
represent them because he is not a licensed attorney. [14] Seven weeks later,
Dilks responded through counsel and filed a “Reply to Motions to Dismiss.” At
no time did Dilks’ counsel file a corrected signature page for the original
petition pursuant to rule 55.03(a). [15] The “Reply to Motion to Dismiss”
argued Defendants’ motion to dismiss should be denied because the original
petition is effective regardless of Dilks’ conduct of signing and filing it on
behalf of the partnerships. [16] Therefore, the Partnerships should be given
reasonable time to file an amended petition signed by a Missouri attorney. [17]
The parties argued their motions before the court on January 20, 2012. [18]
The
trial court sided with defendants and dismissed the Partnerships’ claims on
March 7, 2012 and held “because Dilk’s 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.”
[19] In response, Dilks’ counsel filed a motion on behalf of the Partnerships
asking the trial court to reconsider its March 7th dismissal of the
Partnerships’ claims. [20] In the event the trial refused to reconsider its
ruling, Dilks’ counsel argued the court should certify the matter for immediate
appeal under rule 74.01(b). [21] The trial court denied the motion to
reconsider, but certified the matter for immediate appeal. [22]
The
Missouri Supreme Court affirmed the trial court’s dismissal of the
Partnerships’ claims. [23] Specifically, the Court held limited partnerships
may only appear and assert claims by and through a licensed attorney. [24]
Dilks is not a licensed attorney, therefore his act of asserting claims on
behalf of the Partnerships constituted the unauthorized practice of law and
should not be given legal effect.” [25]
II. Legal Background
It is
well established under Missouri law that corporations may appear only through a
licensed attorney. [26] Although natural persons are ordinarily entitled to
appear and assert claims on behalf of themselves, statutorily created entities,
such as corporation are not entitled to do the same. [27]
The
Missouri Supreme Court made this rule unequivocally clear as early as 1937 in Clark v. Austin. [28] In Clark v. Austin, three attorneys were
accused of the unauthorized practice of law before the Public Service
Commission. [29] Said attorneys represented various railroad companies in
hearings for the denial of permits to operate freight carrying motor vehicles
over designated routes. [30] However, the attorneys were not authorized to
practice law in Missouri or any other state. [31] The Court found the
attorney’s undoubtedly engaged in the unauthorized practice of law and held:
“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.” [32] (emphasis added).
Similar
to corporations, Limited partnerships are not natural persons and exist solely
because of the provisions of chapter 359 of the Missouri Revised Statutes, and
therefore must assert all claims by and through a licensed attorney to abide by
the authorized practice of law. [33] The practice of law is defined as the act
of appearing in court to assert or defend claims on behalf of another. [34]
When an individual who is not a licensed attorney represents a corporation or
limited partnership, they participate in the unauthorized practice of law
because they are representing another (ie. a statutorily created entity). [35]
Acts that constitute the unauthorized practice of law may not be given legal
effect as though the practice was authorized. [36]
III. Comment
This
case is fairly straightforward and does not seem to alter Missouri law in any
respect. The Missouri Supreme Court accurately and effectively provided
well-established precedent to support their decision that Dilks’ engaged in the
unauthorized practice of law by trying to assert claims on behalf of a
statutorily created entity.
- Melesa Johnson
[1] SC93404,
2014 WL 712975 (Mo. Feb. 25, 2014).
[2] Id.
[3] Id. at 2
[4] Id.
[5] Id. at 3.
[6] Id. 4.
[7] Id. at 5.
[8] Id.
[9] Id.
[10] Id. at 2.
[11] Id.
[12] Id.
[13] Id.
[14] Id.
[15] Id. at 3.
[16] Id.
[17] Id.
[18] Id. at 4.
[19] Id.
[20] Id. at 5.
[21] Id.
[22] Id.
[23] Id.
[24] Id. at 7.
[25] Id. at 13.
[26] Id. at 7.
[27] Id.
[28] 101
S.W.2d 977, 982 (Mo. banc 1937).
[29] Id.
[30] Id.
[31] Id.
[32] Id.
[33] Dilks, at 7-8.
[34] Mo.
Rev. Stat. 484.010.
[35] Dilks, at 10.
[36] Clark, at 993.
