Expressway Associates II v. Friendly Ice Cream Corp. of Connecticut

• Decision Date: 21 July 1994
• Docket Number: No. 11891,11891
• Citation: 642 A.2d 62,34 Conn.App. 543
• Court: Connecticut Court of Appeals
• Parties: EXPRESSWAY ASSOCIATES II v. FRIENDLY ICE CREAM CORPORATION OF CONNECTICUT.

Page 62

642 A.2d 62

34 Conn.App. 543

EXPRESSWAY ASSOCIATES II v. FRIENDLY ICE CREAM CORPORATION OF CONNECTICUT.

No. 11891.

Appellate Court of Connecticut.

Argued Oct. 26, 1993.

Decided May 31, 1994.

Certification Denied July 21, 1994.

John Alan Sakon, General Partner, pro se, for appellant (plaintiff).

William H. Champlin, III, with whom, on the brief, was Kristine D. Ragaglia, Hartford, for appellee (defendant).

Before EDWARD Y. O'CONNELL, FOTI and LANDAU, JJ.

LANDAU, Judge.

In a second visit to this court, ¹ Expressway Associates II (Expressway) appeals from the trial court's decision denying its motion for contempt sought against Friendly Ice Cream Corporation of Connecticut (Friendly) for violation of a court order pursuant to an injunction. The gist of Expressway's claims on appeal is that the trial court improperly found that Expressway had failed to satisfy the burden of proof necessary to support a finding of contempt.

Before we address the plaintiff's claims, we must first confront the threshold issue of whether a general partner of a partnership who is not an attorney may appear and participate, pro se, in an appeal on behalf of the general partnership.

A summary and explanation of the procedural posture of the case is useful. On June 7, 1988, a complaint verified and signed by John A. Sakon, as a general partner, was filed in the Superior Court, Hartford County, praying for a temporary and permanent injunction and damages. Expressway, appearing through an attorney, alleged in its complaint, inter alia, that it "is a general partnership formed and doing business under the laws of the State of Connecticut." After the pleadings were closed and following a trial, judgment was rendered for the defendant, and the plaintiff appealed to this court. The judgment was reversed and the case was remanded to the trial court with direction to render judgment for the plaintiff granting the injunctive relief sought and for further proceedings to determine the amount of damages to be awarded consistent with the appellate opinion. Expressway Associates II v. Friendly Ice Cream Corp., 22 Conn.App. 124, 131, 576 A.2d 575 (1990). Friendly filed a petition for certification to the Supreme Court, which was granted limited to the issue of damages. Expressway Associates II v. Friendly Ice Cream Corp., 216 Conn. 811, 580 A.2d 56 (1990). On January 2, 1991, the trial court, Maloney, J., rendered a partial judgment in accordance with the order of this court and granted the injunctive relief sought by Expressway. ² The Supreme Court reversed the judgment of this court on the certified issue of damages and ordered a nominal award of one dollar to Expressway. Expressway Associates II v. Friendly Ice Cream Corp., 218 Conn. 474, 590 A.2d 431 (1991). On November 29, 1991, the plaintiff filed a motion for contempt and, after a hearing, the trial court, Hammer, J., denied the motion. This appeal followed. At argument, heedful of the issue of pro se representation of the partnership, we ordered supplemental briefs addressed to this issue.

At the outset, it is important to take note of certain facts concerning representation. The plaintiff named in the action and on appeal is "Expressway Associates II." Upon the filing of the writ, summons and complaint on June 7, 1988, Expressway was represented by Attorney Gary Greene. See Practice Book § 64. On November 29, 1991, Attorney Danny M. Smolnik filed an appearance for the plaintiff "in lieu of appearance of attorney or firm Pullman, Comley, Bradley & Reeves." ³ On or about March 2, 1992, ⁴ John Alan Sakon filed an "appearance" on behalf of the plaintiff (indicated in the file as "Expressway Assoc. II") "in addition to the appearance already on file." Smolnik's motion to withdraw his appearance was granted by the trial court on November 2, 1992, following the filing of a pro se appearance by Sakon, for "the plaintiff ... in lieu of appearance of attorney ... Smolnik" on August 27, 1992. ⁵ This appeal was filed on November 16, 1992, and Sakon signed for the plaintiff, "pro se."

Sakon claims that (1) he is the real party in interest in that he "owns and controls all the interest in the ... action" and may proceed pro se pursuant to General Statutes § 51-88(d)(2), ⁶ (2) the court and parties have waived their rights to object, and (3) it would be inequitable to rule that it is inappropriate for him to be heard in that there is no threat to the public interest.

Any person who is not an attorney is prohibited from practicing law, except that any person may practice law, or plead in any court of this state "in his own cause." General Statutes § 51-88(d)(2). The authorization to appear pro se is limited to representing one's own cause, and does not permit individuals to appear pro se in a representative capacity. " 'In Connecticut, a corporation may not appear pro se.... A corporation may not appear by an officer of the corporation who is not an attorney.' " (Citations omitted.) Triton Associates v. Six New Corp., 14 Conn.App. 172, 175-76, 540 A.2d 95, cert. denied, 208 Conn. 806, 545 A.2d 1104 (1988). This is so, despite the fact that the officer may be the principal shareholder of that corporation. Id. ⁷ "It must be remembered ... that a 'corporation' is but a fictional 'person,' created by statute and endowed only with those attributes given by statute. See General Statutes c. 599; Hale v. Henkel, [201 U.S. 43, 74-75, 26 S.Ct. 370, [378-79,] 50 L.Ed. 652 (1906) ]. A corporation 'speaks' only by virtue of personification." Lieberman v. Reliable Refuse Co., 212 Conn. 661, 674, 563 A.2d 1013 (1989). The Supreme Court of the United States and federal courts of appeal have declared that fictional entities may not appear in civil actions pro se. See Rowland v. California Men's Colony, --- U.S. ----, ----, 113 S.Ct. 716, 721, 121 L.Ed.2d 656 (1993). "It has been the law for the better part of two centuries ... that a corporation may appear in the federal courts only through licensed counsel. Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738, 829, 6 L.Ed. 204 (1824); see Turner v. American Bar Assn., 407 F.Supp. 451, 476 (N.D.Tex.1975) (citing the 'long line of cases' from 1824 to [1993] holding that a corporation may only be represented by licensed counsel), affirmance order sub nom. Taylor v. Montgomery, 539 F.2d 715 (7th Cir.1976), and aff'd sub nom. Pilla v. American Bar Assn., 542 F.2d 56 (8th Cir.1976).... Thus, save in a few aberrant cases, ⁸ the lower [federal] courts have uniformly held that 28 U.S.C. § 1654, providing that 'parties may plead and conduct their own cases personally or by counsel,' does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney. See, e.g., Eagle Associates v. Bank of Montreal, 926 F.2d 1305 (2d Cir.1991) (partnership); Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir.) (nonprofit corporation formed by prison inmates), cert. denied, 493 U.S. 868, 110 S.Ct. 192, 107 L.Ed.2d 146 (1989); Jones v. Niagara Frontier Transportation Authority, 722 F.2d 20, 22 (2d Cir.1983) (corporation); Richdel, Inc. v. Sunspool Corp., 699 F.2d 1366 (Fed.Cir.1983) (per curiam) (corporation); Southwest Express Co. v. I.C.C., 670 F.2d 53, 55 (5th Cir.1982) (per curiam) (corporation); In re Victor Publishers, Inc., 545 F.2d 285, 286 (1st Cir.1976) (per curiam) (corporation); Strong Delivery Ministry Assn. v. Board of Appeals of Cook County, 543 F.2d 32, 34 (7th Cir.1976) (per curiam) (corporation); United States v. 9.19 Acres of Land, 416 F.2d 1244, 1245 (6th Cir.1969) (per curiam) (corporation); Simbraw, Inc. v. United States, 367 F.2d 373, 374 (3d Cir.1966) (per curiam) (corporation)." Rowland v. California Men's Colony, supra, --- U.S. at ----, 113 S.Ct. at 721. Thus, the rationale for the rule in corporate cases applies equally to all artificial entities. Id. Our federal courts have earlier articulated their reasons behind this requirement: "[T]he conduct of litigation by a nonlawyer creates unusual burdens not only for the party he represents but as well for his adversaries and the court. The lay litigant frequently brings pleadings that are awkwardly drafted, motions that are inarticulately presented, proceedings that are needlessly multiplicative. In addition to lacking the professional skills of a lawyer, the lay litigant lacks many of the attorney's ethical responsibilities, e.g., to avoid litigating unfounded or vexatious claims." Jones v. Niagara Frontier Transportation Authority, 722 F.2d 20, 22 (2d Cir.1983).

Sakon directs our attention to the Ninth Circuit decision in United States v. Reeves, 431 F.2d 1187 (9th Cir.1970), a reported decision of our Superior Court, Margaret Maunder Associates, Inc. v. A-Copy, Inc., 40 Conn.Sup. 361, 499 A.2d 1172 (1985), and an unreported memorandum of decision of our Superior Court, United Illuminating Co. v. Res-Comm Investment Associates, Superior Court, judicial district of New Haven, Docket No. 281801, 1991 WL 169528 (August 22, 1991) (ruling on a motion to strike the appearance of a pro se litigant).

The Reeves court held that because the Alaska partnership statute provides that each partner has a specific right in partnership property, "[i]t follows that ... [the appellant-partner], as a member of that partnership was pleading his own case." United States v. Reeves, supra, 431 F.2d at 1188. On that basis, the court permitted the partnership to be represented by a lay partner. In United Illuminating, the trial court first noted that "there is nothing in the file ... to indicate that 'Res-Comm Investment Associates' is a partnership" and that [Res-Comm Investment Associates] "could very well be an individual proprietorship." United Illuminating Co. v. Res-Comm Investment Associates, upra. It then stated, "Nevertheless, even if it was a partnership, of which [the pro se litigant] is a member, surely he could file a pro se appearance to...