Martinez v. Roscoe
| Decision Date | 19 April 2001 |
| Docket Number | No. 21,703.,21,703. |
| Citation | 131 N.M. 137,33 P.3d 887,2001 NMCA 83 |
| Parties | Sylvia MARTINEZ and Yvonne Lovato n/k/a Yvonne Kullina, Plaintiffs/Appellees, v. Benjamin J. ROSCOE, Geraldine M. Roscoe, BJR Racing Stables, Inc., The Brook Apartments, LLC, 3005 San Pablo, LLC, Valle Del Norte Condominiums, LLC, and The Leonard Lounge, LLC, Defendants/Third-Party Plaintiffs-Appellants, v. Wendy L. Basgall, Angelica Anaya-Allen, James Orgass, Karen Meyers, Legal Aid Society of Albuquerque, Inc., and Jay D. Hill, Third-Party Defendants/Appellees. |
| Court | Court of Appeals of New Mexico |
Angelina Anaya-Allen, Legal Aid Society of Albuquerque, Inc., Albuquerque, NM, for Appellees.
Benjamin J. Roscoe, Geraldine M. Roscoe—Pro Se, Albuquerque, NM, for Third-Party Plaintiffs-Appellants.
Briggs F. Cheney, Law Office of Briggs F. Cheney, Albuquerque, NM, for Appellees Basgall, Anaya-Allen, Orgass, Meyers, and Legal Aid Society of Albuquerque, Inc.
Jay D. Hill, Betzer, Roybal & Hill P.C., Albuquerque, NM, for Appellee Jay D. Hill.
Certiorari Denied, No. 26,981, July 11, 2001.
{1} This case originated as an action to require Benjamin Roscoe (Roscoe) to set aside fraudulent transfers allegedly made to avoid paying judgments entered against him and in favor of Plaintiffs. Roscoe filed a third-party complaint against Third-Party Defendants Basgall, Anaya-Allen, Orgass, Meyers, and the Legal Aid Society of Albuquerque (collectively referred to as LASA). He also filed a "cross-claim" against Basgall on behalf of 3005 San Pablo LLC (San Pablo), a limited liability company. LASA filed a motion to dismiss with prejudice Roscoe's third-party complaint against it, which the district court granted. The district court also granted Basgall's motion to dismiss San Pablo's claim against her. The dismissal of San Pablo's claim, however, was without prejudice.
{2} The calendar notice proposed dismissal of San Pablo's appeal and affirmance of the dismissal of Roscoe's claims against LASA. Roscoe has filed a memorandum opposing the proposed disposition. For the following reasons, we dismiss San Pablo's appeal and affirm the dismissal with prejudice of Roscoe's third-party claims.
{3} San Pablo sought to file its claim against Basgall by acting through its manager, Roscoe, and filing the "cross-claim" pro se. Basgall's answer to San Pablo's third-party complaint sought dismissal of San Pablo's claims, arguing in part that Roscoe could not file the complaint on San Pablo's behalf. No other motion to dismiss was filed by Basgall concerning San Pablo's claims; however, Basgall and other Third-Party Defendants filed a motion to dismiss Roscoe's claims. The district court's order dismissed San Pablo's complaint without prejudice and without specifying the ground for its decision.
{4} San Pablo's notice of appeal and docketing statement have been filed pro se by Roscoe as San Pablo's manager. In its memorandum opposing the proposed dismissal, San Pablo, through Roscoe, argues that no New Mexico statute exists that prohibits corporations or limited liability companies from appearing pro se in state court. It also argues that no court rule prohibits a limited liability company, as opposed to a corporation, from appearing pro se. Cf. Rule LR2-116 NMRA 2001 (). It also argues that NMSA 1978, § 36-2-27 (1999), which prohibits the unauthorized practice of law, has no application to pro se litigants.
{5} This question has not been specifically addressed in New Mexico. In State ex rel. Norvell v. Credit Bureau of Albuquerque, 85 N.M. 521, 514 P.2d 40 (1973), our Supreme Court affirmed injunctive relief prohibiting non-attorney employees of a credit bureau from preparing pleadings or appearing on behalf of individuals, partnerships, corporations, associations, or groups of any kind. It did not, however, decide the propriety of pro se appearances on behalf of an artificial entity. Id. at 529, 514 P.2d at 48. The United States Supreme Court has also prohibited any artificial entity from being represented by persons who are not licensed attorneys. See, e.g., Rowland v. California Men's Colony, 506 U.S. 194, 201-03, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (). In Rowland, the court stated:
As the courts have recognized, the rationale for that rule applies equally to all artificial entities. Thus, save in a few aberrant cases, the lower 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.
Id. at 202, 113 S.Ct. 716 (footnote omitted).
{6} As a limited liability company, San Pablo is an association of persons. See NMSA 1978, § 53-19-7 (1999). Under federal law, it would be required to appear in federal court through a licensed attorney. See Rowland, 506 U.S. at 201-03, 113 S.Ct. 716.
{7} State courts have also required artificial legal entities, including limited liability companies, to be represented by a licensed attorney. See Int'l Ass'n of Sheet Metal Workers Local 16 v. AJ Mech., No. CIV. 99-461-FR, 1999 WL 447459, *1 (D.Or.1999) (Local 16) (); Valentine L.L.C. v. Flexible Bus. Solutions, L.L.C., 27 Conn. L. Rptr. 378 (Conn.Super.Ct.2000), 2000 WL 960901, *1.
{8} San Pablo attempts to distinguish Valentine L.L.C. by asserting that the issue was whether pro se defendant Gordon Lockwood could file his appearance on behalf of the limited liability company, noting that Lockwood was not a licensed attorney and would not be permitted to appear for any person. See id. We do not see any distinction from this case in which Roscoe, who is not a licensed attorney, seeks to file pleadings on San Pablo's behalf. Although Roscoe may not have attempted to file a formal appearance on San Pablo's behalf, his attempts to file claims and other pleadings for San Pablo is in essence the same thing. Roscoe is not the same legal entity as San Pablo and he cannot file pro se pleadings on its behalf. We agree with the court in Valentine L.L.C. when it stated, "There is no basis for distinguishing a limited liability company from either a corporation or partnership on the question." Id.
{9} Similarly, we are not persuaded that the fact that Oregon has a statute requiring corporations to appear only by an attorney renders the holding in Local 16 inapplicable to the present case. The district court where San Pablo filed its claims had a local rule similar to the law in Oregon requiring corporations to be represented by licensed attorneys. The fact that the court in Local 16 applied this law not only to corporations but to unincorporated associations, including limited liability companies, is persuasive authority on this point. See Local 16, 1999 WL 447459, *1-2.
{10} San Pablo argues that the district court did not rely on Local Rule 2-116 in dismissing its claims. As noted above, the district court did not explain its dismissal of San Pablo's claim. The argument had been made below, however, that Roscoe could not file the claim on San Pablo's behalf. On appeal, this Court will affirm the lower court's ruling if right for any reason. See generally Westland Dev. Co. v. Romero, 117 N.M. 292, 293, 871 P.2d 388, 389 (Ct.App.1994). Local Rule 2-116 provides support for the district court's dismissal in that it requires corporations to be represented by counsel and allows any papers filed by an unrepresented corporation to be struck by the court. The fact that this local rule was not cited by the district court does not preclude this Court from using it as authority to affirm the district court's order.
{11} San Pablo argues that this local rule does not prohibit a limited liability company, as opposed to a corporation, from filing pro se pleadings. Like the court in Valentine L.L.C., however, we are persuaded that there is no basis for distinguishing a limited liability company from a corporation on the question of a pro se appearance by someone who is not a licensed attorney.
{12} San Pablo also argues that there is statutory authority in New Mexico allowing it to file pro se claims. NMSA 1978, § 53-19-58(A) (1993) allows an authorized member of a limited liability company to bring suit in the company's name. This statute provides a mechanism for determining who may make a decision on behalf of the company to bring a lawsuit. It does not allow a member who is not a licensed attorney to provide legal representation for the company. Similarly, NMSA 1978, §§ 53-19-40 and 53-19-42 (1993) provide a mechanism for identifying who may act on behalf of the company during its dissolution. The fact that the statute allows an authorized person to "prosecute and defend suits" does not mean that the statute authorizes that person to file pro se claims on behalf of the company; it means only that the authorized person may make the decision to pursue or defend suits on the company's behalf. Section 53-19-42(B)(1). Nothing in these statutes negates the requirement that a limited liability company be represented by a licensed attorney. See LR2-116; Rowland, 506 U.S. at 202, 113 S.Ct. 716; Valentine L.L.C., 2000 WL 960901, *1; Local 16, 1999 WL 447459, *1-2.
{13} San Pablo also asserts that the appellate rules do not authorize this...
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