Naylor Senior Citizens Hous., LP v. Sides Constr. Co., SD32098
| Decision Date | 19 April 2013 |
| Docket Number | No. SD32098,SD32098 |
| Parties | NAYLOR SENIOR CITIZENS HOUSING, LP; NAYLOR SENIOR CITIZENS HOUSING II, LP; Plaintiffs-Appellants, and JOHN DILKS, Plaintiff, v. SIDES CONSTRUCTION COMPANY, INC.; CITY OF NAYLOR; SCHULTZ ENGINEERING SERVICES, INC.; NAYLOR RII PUBLIC SCHOOLS; and DILLE AND TRAXEL, LLC, Defendants-Respondents. |
| Court | Missouri Court of Appeals |
NAYLOR SENIOR CITIZENS HOUSING, LP;
NAYLOR SENIOR CITIZENS HOUSING II, LP; Plaintiffs-Appellants,
and JOHN DILKS, Plaintiff,
v.
SIDES CONSTRUCTION COMPANY, INC.; CITY OF NAYLOR; SCHULTZ ENGINEERING SERVICES, INC.;
NAYLOR RII PUBLIC SCHOOLS; and DILLE AND TRAXEL, LLC, Defendants-Respondents.
No. SD32098
Missouri Court of Appeals Southern District Division One
Filed: April 19, 2013
REVERSED AND REMANDED
Naylor Senior Citizens Housing, LP, and Naylor Senior Citizens Housing II, LP ("Appellants"), are two limited partnerships, organized and existing under the laws of Missouri. Plaintiff Dilks acted as managing partner for both Appellants but is not an
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attorney. Plaintiff Dilks and Appellants filed a petition alleging that defendants' negligence in the design and construction of an elementary school and in the design and maintenance of the drainage system nearby the construction site caused flood damage to property owned by Appellants. John Dilks personally signed a Petition for Damages on behalf of himself and Appellants against Sides Construction Company, Inc., City of Naylor, Schultz Engineering Services, Inc., Naylor R-II Public Schools, and Dill and Traxel, LLC ("Respondents"). The petition was filed one day prior to the expiration of the statute of limitations. All Respondents filed motions to dismiss the petition with respect to Appellants.1 Although an attorney filed a responsive pleading and an Amended Petition on behalf of the partnerships, it was after the statute of limitations had run. Respondents successfully contended at the trial level that a petition on behalf of limited partnerships must be filed by a licensed attorney, Dilks is not an attorney, and, therefore, the petition filed by Dilks was a nullity and the subsequent Amended Petition was outside the statute of limitations. We reverse the dismissal and remand for further proceedings.
There are two independent, somewhat overlapping, legal principles at issue in this case: first, is the so-called "nullity rule," which provides that legal action undertaken by one not authorized to practice law is a nullity and is subject to dismissal, Strong v. Gilster Mary Lee Corp., 23 S.W.3d 234, 241 (Mo. App. E.D. 2000); and second, is Rule 55.03(a), which governs the signing of pleadings. At the heart of this issue lies Appellants' failure to have the petition signed by an attorney. According to Respondents,
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Appellants, as limited partnerships, should be treated like a corporation and must therefore be represented in all legal matters by a licensed attorney.2 Respondents further advocate that because Plaintiff Dilks is not an attorney, he engaged in the unauthorized practice of law in signing and filing the petition, and because Appellants were not represented by an attorney in filing the petition, the trial court correctly treated the petition as a nullity and sustained Respondents' motions to dismiss.3
Appellants rely upon Rule 55.03(a), which provides:
Every pleading, motion, or other filing shall be signed by at least one attorney of record in the attorney's individual name or by the self-represented party.
. . . .
An unsigned filing or an electronic filing without the required certification shall be stricken unless the omission is corrected promptly after being called to the attention of the attorney or the party filing same.
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We review a motion to dismiss4 de novo. Lynch v. Lynch, 260 S.W.3d 834, 836 (Mo. banc 2008). We accept all facts contained in the petition as true and view the allegations in the light most favorable to the plaintiff. Fuller v. Kemna, 317 S.W.3d 176, 178 (Mo. App. S.D. 2010). In our review, we may not consider evidence outside the pleadings. Weems v. Montgomery, 126 S.W.3d 479, 484 (Mo. App. W.D. 2004).
Respondents Schultz Engineering Services, Inc., City of Naylor, and Sides Construction Company, Inc., filed motions to dismiss on the basis that the petition was not signed by an "attorney of record", as required by Rule 55.03(a). Respondents City of Naylor and Sides Construction also suggested in their motions to dismiss that the petition was a nullity because limited partnerships, like Appellants, were required to act through a licensed attorney in all legal matters. Appellants and Plaintiff Dilks retained counsel and filed a reply to the motions to dismiss, arguing that Rule 55.03(a) and recent Supreme Court case law required they be given an opportunity to correct the omission of an attorney's signature. In support of their reply, Appellants and Plaintiff Dilks filed Plaintiff Dilks' affidavit, which contended: (1) John Dilks is the managing general partner of Appellants; (2) he consulted attorneys with regard to filing a lawsuit and eventually met with a member of a law firm several months before the five-year statute of limitations was to run; (3) on the day before the petition was filed he went to the law firm
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expecting to sign paperwork to file the lawsuit, instead he was told by one of the attorneys that the firm had discovered it had a conflict of interest with one of the defendants and thus the firm could not represent Dilks and Appellants; and (4) the attorney handling the matter advised him that because the time for filing was almost up the firm had prepared the petition for him to sign and file personally, and that he should do so. Appellants also filed an Amended Petition that was signed by an attorney.
The initial question posed by the parties is whether a limited partnership is bound by the same rules that apply to a corporation. The parties have provided no cases, nor have we found any, that answer that very specific question whether a limited partnership is treated the same as a corporation in court proceedings. In the argument section of its brief, Respondent City of Naylor points to language in the limited partnership statute, section 359.081,5 that partnerships must sue and be sued in the partnership name as support for their position and thus are the equivalent of a corporation and must act through an attorney in all legal matters. See Reed v. Labor and Indus. Relations Com'n, 789 S.W.2d 19, 23 (Mo. banc 1990) ("It is axiomatic that a corporation must act through an attorney in all legal matters.").6
We find that whether the limited partnership was obligated to have an attorney sign the petition is not the dispositive issue. Even assuming that the initial petition was a "nullity," Haggard v. Division of Employment Sec., 238 S.W.3d 151, 155-56 (Mo. banc 2007), controls. In Haggard, the court indicated that the filing of the petition by a non-
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attorney representing a corporation is not jurisdictional and is merely error. If that is so, then Rule 55.03 applies to a petition of a limited partnership filed by a non-attorney.
In Hensel v. American Air Network, Inc., the Supreme Court addressed Rule 55.03(a)'s signature requirement and the consequence of failing to provide the appropriate signature on a petition. 189 S.W.3d 582 (Mo. banc 2006). In Hensel, the plaintiffs filed a petition, prepared and signed by their attorney, who was licensed to...
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