Byers-Watts v. Parker
| Decision Date | 01 March 2001 |
| Docket Number | No. 1 CA-CV 00-0270.,1 CA-CV 00-0270. |
| Citation | 199 Ariz. 466,18 P.3d 1265 |
| Parties | Michelle BYERS-WATTS, on behalf of herself and as next friend and natural mother of: Larry Michael Miller-Watts, a minor, Plaintiffs-Appellants, v. Toni L. PARKER and Michael Parker, husband and wife; Robert Anderson as Special Administrator of the Estate of David Weil, Defendants-Appellees. |
| Court | Arizona Court of Appeals |
Michelle Byers-Watts, Apache Junction, Appellant In Propria Persona.
Burrell & Seletos, by Roger Burrell, Phoenix, Attorneys for Appellees Parker.
Jones, Skelton & Hochuli, by David C. Lewis and Ronald W. Collett, Phoenix, Attorneys for Appellee Anderson.
¶ 1 Michelle Byers-Watts appeals the trial court's judgment dismissing the personal injury lawsuit filed in her capacity as guardian ad litem for her minor son. We are asked to decide whether Byers-Watts, a non-lawyer, can represent her son in the lawsuit without the services of a licensed attorney. We conclude she cannot provide such representation, and we therefore affirm.
¶ 2 On January 9, 1994, nine-year-old Larry Michael Miller-Watts ("Larry") was a passenger in a truck driven by David L. Weil when it was struck from behind by a vehicle operated by appellee Toni L. Parker. Larry suffered a blow to his head and was transported to a hospital, where he was treated and released.
¶ 3 On the second-year anniversary of the accident, Byers-Watts, Larry's mother, acting in propria persona, filed a personal injury complaint solely on his behalf. She named Weil, Parker, and their respective spouses and insurance companies as defendants. Because Weil died before initiation of the lawsuit, Byers-Watts eventually amended her complaint to substitute appellee Robert Anderson, as special administrator of Weil's estate, as a defendant in place of Weil. Additionally, the court dismissed the claims against the insurance companies. Before entry of the dismissal order, one of the companies objected to Byers-Watts' representation of Larry, but the court never ruled on the objection.
¶ 4 Attorney Harold Feder entered his appearance on behalf of Byers-Watts on February 11, 1997. But Feder moved to withdraw in October of 1997 without client permission, citing "a significant difference of opinion [with Byers-Watts] in terms of how this case should be handled." Although the trial court initially denied the motion because the case was set for trial in January 1998, it ultimately granted the motion after Byers Watts provided her consent. The court also vacated the trial date and noted that "[Byers-Watts] is looking for an attorney to represent her."
¶ 5 Byers-Watts failed to retain a new attorney by August 1998, and appellees therefore moved to dismiss the case, arguing that Byers-Watts was engaging in the unauthorized practice of law. The trial court agreed and ruled that Byers-Watts must be represented by an attorney in order to maintain the lawsuit on Larry's behalf. Accordingly, the court stayed the proceedings for ninety days and stated that it would dismiss the case without prejudice at the end of that time period unless Byers Watts had secured legal representation.
¶ 6 Before the expiration of the ninety-day period, attorney Keith Lalliss appeared for Byers-Watts. At a pretrial management conference held on August 27, 1999, however, Lalliss orally moved to withdraw from the case. Byers-Watts stated that she did not oppose the motion, and the court therefore granted it.1 The court vacated the then-existing trial date and, once again, allowed Byers-Watts ninety days in which to obtain legal representation.
¶ 7 At a November 19, 1999, status conference, the court allowed Byers-Watts until December 17 to retain counsel. On December 20, 1999, the court granted her request for an extension of this deadline and ordered that she obtain an attorney by March 3, 2000. As of April 3, 2000, Byers-Watts still had not retained an attorney. The trial court therefore dismissed the case without prejudice to refile it. Because the court necessarily based its decision on its interpretation of court rules, we review the judgment de novo. Perguson v. Tamis, 188 Ariz. 425, 427, 937 P.2d 347, 349 (App.1996).
¶ 8 Byers-Watts primarily argues that the trial court erred by dismissing the lawsuit because Rule 17(g), Arizona Rules of Civil Procedure ("A.R.C.P."), explicitly authorizes her to represent Larry without the services of a licensed attorney. She further raises issues concerning discovery disputes and the merits of her claim. Because our resolution of the representation issue is dispositive, we do not address these issues.2
¶ 9 Rule 17(g) provides, in relevant part, as follows:
Whenever an infant or incompetent person has a representative, such as a general guardian, or similar fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. If an infant or incompetent person does not have a duly appointed representative the infant or incompetent may sue by a next friend or by a guardian ad litem.
Byers-Watts seizes upon the language permitting her to "sue or defend on behalf of [an] infant" as authorizing her to provide legal representation to Larry in the lawsuit. Appellees counter that Rule 17(g) only allows Byers-Watts to serve as Larry's non-legal representative in the lawsuit and does not give her a license to practice law.
¶ 10 In interpreting Rule 17(g), we apply the same principles of construction as are used in construing statutes. State v. Baca, 187 Ariz. 61, 63, 926 P.2d 528, 530 (App.1996). Thus, to determine the supreme court's intent in adopting Rule 17(g), we look first to its language, Calmat of Ariz. v. State ex rel. Miller, 176 Ariz. 190, 193, 859 P.2d 1323, 1326 (1993), and will ascribe plain meaning to its terms unless they are ambiguous. Rineer v. Leonardo, 194 Ariz. 45, 46, ¶ 7, 977 P.2d 767, 768 (1999). If the rule is ambiguous, we will employ principles of construction, such as interpreting it in conjunction with other rules relating to the same subject matter. See Goulder v. Arizona Dep't of Transp., Motor Vehicle Div., 177 Ariz. 414, 416, 868 P.2d 997, 999 (App.1993). Because Rule 17(g) is patterned after Rule 17(c) of the Federal Rules of Civil Procedure ("F.R.C.P."), we are also guided by federal case law interpreting that rule. See Nesbitt v. Nesbitt, 1 Ariz.App. 293, 295, 402 P.2d 228, 230 (1965) ().
¶ 11 Byers-Watts contends that the phrase "sue or defend" in Rule 17(g) "plainly" refers to legal representation. We disagree. Our society commonly refers to both lawyers and parties as "suing" others and "defending" against lawsuits. Indeed, our rules of civil procedure recognize "the capacity of a party to sue or be sued or the authority of a party to sue or be sued in a representative capacity." A.R.C.P. 9(a). Consequently, we reject Byers-Watts' argument that the term "sue or defend" in Rule 17(g) necessarily refers to the legal prosecution or defense of lawsuits on behalf of others. Because the plain language of Rule 17(g) does not yield a certain meaning, we turn to sources outside the rule.
¶ 12 In deciding what our supreme court intended by the phrase "sue or defend" in Rule 17(g), we are guided by that court's rules identifying who may engage in the practice of law. See Hunt v. Maricopa County Employees' Merit Sys. Comm'n, 127 Ariz. 259, 261-62, 619 P.2d 1036, 1038-39 (1980) ).
¶ 13 Rule 31(a)(3), Rules of the Arizona Supreme Court, states that "no person shall practice law in this state ... unless he is an active member of the state bar." Without question, representation of another in court proceedings constitutes the "practice of law." See In re Fleischman, 188 Ariz. 106, 110, 933 P.2d 563, 567 (1997) () (quoting State Bar of Ariz. v. Ariz. Land Title & Trust Co., 90 Ariz. 76, 95, 366 P.2d 1, 14 (1961)). Significantly, although the supreme court authorizes certain non-attorneys to represent others in specified judicial and administrative proceedings, the court does not include general guardians, guardians ad litem, next friends, or similar fiduciaries within these exceptions. See R. Ariz. Sup.Ct. 31(a)(4). In light of this omission, we are persuaded that the court did not intend A.R.C.P. 17(g) to authorize non-lawyer guardians and like representatives to provide legal representation for their minor charges.
¶ 14 Our conclusion is further bolstered by federal court decisions that have interpreted F.R.C.P. 17(c).3See Devine v. Indian River County Sch. Bd., 121 F.3d 576, 581 (11th Cir.1997) (); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.1986) (per curiam)(Under Rule 17(c), "a minor child cannot bring suit through a parent acting as next friend if the parent is not represented by an attorney.").
¶ 15 Other federal courts have reached similar holdings based on policy considerations. See, e.g., Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 125 (2nd Cir.1998) (...
To continue reading
Request your trial
-
Cal X–Tra v. W.V.S.V.
...185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996); Brunet v. Murphy, 212 Ariz. 534, 539, ¶ 20, 135 P.3d 714, 719 (App.2006); Byers–Watts v. Parker, 199 Ariz. 466, 469, ¶ 10, 18 P.3d 1265, 1268 (App.2001). “If ambiguity exists, we apply secondary principles of statutory construction and conside......
-
STATE EX REL. WINKLEMAN v. NAV. STREAM ADJ.
...unless the context suggests otherwise. See Brunet v. Murphy, 212 Ariz. 534, 539, ¶ 20, 135 P.3d 714, 719 (App.2006); Byers-Watts v. Parker, 199 Ariz. 466, 469, ¶ 10, 18 P.3d 1265, 1268 (App.2001). We look to the plain language of the statute because it is the best evidence of the legislatur......
-
Lowe v. Shelton, (AC 24496)
...751 F. Sup. 1257, 1258-59 (W.D. Mich. 1990); Shields v. Cape Fox Corp., 42 P.3d 1083, 1086 (Alaska 2002); Byers-Watts v. Parker, 199 Ariz. 466, 469-70, 18 P.3d 1265 (2001); Blue v. People, 223 Ill. App. 3d 594, 596-97, 585 N.E.2d 625 (1992), cert, denied, 506 U.S. 1058, 113 S. Ct. 992, 122 ......
-
Chambers v. Tibbs
...have specifically held that a nonattorney parent may not represent his or her child in an action. E.g., Byers-Watts v. Parker, 199 Ariz. 466, 469, 18 P.3d 1265, 1268 (Ariz.Ct.App.2001)(concluding that a nonattorney mother acting as the guardian ad litem for her child may not act as an attor......