Naylor Senior Citizens Hous., LP v. Sides Constr. Co.

• Decision Date: 25 February 2014
• Docket Number: No. SC93404.,SC93404.
• Citation: 423 S.W.3d 238
• Parties: NAYLOR SENIOR CITIZENS HOUSING, LP, et al., Appellants, and John Dilks, Plaintiff, v. SIDES CONSTRUCTION COMPANY, INC., et al., Respondents.
• Court: Missouri Supreme Court

423 S.W.3d 238

NAYLOR SENIOR CITIZENS HOUSING, LP, et al., Appellants,andJohn Dilks, Plaintiff,

v.SIDES CONSTRUCTION COMPANY, INC., et al., Respondents.

No. SC93404.

Supreme Court of Missouri, En Banc.

Feb. 25, 2014.

John M. Beaton, Poplar Bluff, for Naylor Senior Citizens Housing.

Jeffrey R. Schmitt, David A. Zobel, Danna McKitrick PC, Clayton, for Schultz Engineering Services Inc.

Brian R. Plegge, Brown & James PC, St. Louis, for Dille & Travel LLC.

M. Douglas Harpool, Rachel A. Riso, Baird Lightner Millsap & Harpool PC, Springfield, for the City of Naylor.

William D. Holthaus Jr., Brown & James PC, St. Louis, for Naylor R–11 Public Schools.

Pamela M. Triplett, Law Offices of Donald B. Balfour, St. Louis, for Sides Construction Co.

PAUL C. WILSON, Judge.

On September 21, 2011, John Dilks filed a pro se petition (the “Original Petition”) to recover damages he suffered as a result of a flood on September 22, 2006. Those claims (since amended) are not involved in this appeal. Instead, this appeal concerns only the claims that Dilks also attempted to assert in the Original Petition on behalf of Naylor Senior Citizens Housing, LP and Naylor Senior Citizens Housing II, LP (collectively, the “Partnerships”). As statutory entities, the Partnerships may not appear in Missouri courts except through a licensed attorney. Because Dilks is not a licensed attorney, his attempt to assert claims on behalf of the Partnerships constitutes the unauthorized practice of law and may not be given effect. Accordingly, the trial court dismissed the Original Petition to the extent it purports to assert claims on behalf of the Partnerships. That judgment is affirmed.

I. Background

Dilks was the only person to sign the Original Petition. It alleges a single count and concludes with this prayer: “Plaintiffs request judgment against Defendants, jointly and severally, for damages” relatingto stormwater flooding that occurred on September 22, 2006. The “Plaintiffs” identified in the allegations of the Original Petition are Dilks, individually, and the Partnerships, both of which are Missouri statutory limited partnerships.

On October 29, 2011, Defendant Schulz Engineering Services, Inc. (“Schulz”), sought to dismiss Dilks' own claims in the Original Petition on the ground that he lacked standing to sue for damage suffered by the Partnerships. Schulz also moved to dismiss the claims that Dilks attempted to assert on behalf of the Partnerships because the Partnerships cannot represent themselves and Dilks cannot represent them because he is not a licensed attorney. Ultimately, all defendants asserted similar motions and arguments.

Nearly seven weeks passed before Dilks or the Partnerships offered any response to these motions. When plaintiffs finally responded on December 21, 2011, they did so through a licensed attorney. Plaintiffs' counsel, however, did not file or seek leave to file—at this time or any other—a “corrected” signature page for the Original Petition pursuant to Rule 55.03(a). Instead, plaintiffs' counsel filed a “Reply to Motions to Dismiss,” supported by an affidavit from Dilks.¹

This reply contends that the defendants' motions to dismiss the Partnerships' claims should be denied—not because Rule 55.03(a) allows their counsel to correct the Original Petition's defect—but because the Original Petition is effective regardless of Dilks' improper conduct in signing and filing it on behalf of the Partnerships. The reply argues, therefore, that the Partnerships should be given “a reasonable time to file an amended petition, provided it is signed by a licensed Missouri attorney.” Finally, the reply contends that Dilks has standing to assert his own claims because his damages are separate and distinct from the Partnerships' damages.

On January 20, 2012, the same day that the motions to dismiss were argued and submitted, plaintiffs' counsel filed a motion titled: “Motion for Leave to File First Amended Petition and Proposed First Amended Petition.” The proposed amended petition (attached to this motion as an exhibit) does not simply substitute counsel's signature for Dilks' signature on the Original Petition. Instead, the proposed amended petition seeks to add new factual allegations and new legal theories and tries to divide the Original Petition's single count into two separate counts: one on behalf of Dilks, and the other on behalf of the Partnerships. The trial court never ruled on this motion, however, and the Partnerships concede they seek no relief in this appeal with respect to that motion.

On March 7, 2012, the trial court dismissed the Partnerships' claims on the ground that—because Dilks 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. The Original Petition plainly was effective for the purpose of asserting Dilks' personal claims, however. Accordingly, the trial court declined to dismiss those claims but ordered Dilks to file an amended petition making his claims more definite and certain.

On March 26, 2012, Dilks' counsel signed and filed a pleading titled “First Amended Petition” (the “Amended Petition”). This pleading is not the proposed amended petition that counsel sought leave to file in January 2012, and the Amended Petition does not even purport to assert claims on behalf of the Partnerships. Instead, it contains no allegations identifying the Partnerships as plaintiffs, it ends with a prayer seeking only damages on behalf of Dilks, and—as if to remove any doubt—the customary recital at the beginning of the Amended Petition begins: “Comes now Plaintiff John Dilks, and for his cause of action against Defendants states....” ²

On March 30, 2012, counsel 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, in the alternative, to denominate that order as a judgment pursuant to Rule 74.01(a) and certify it for immediate appeal pursuant to Rule 74.01(b). The trial court overruled the motion to reconsider but, on May 2, 2012, restated the March 7 order in the form of a “partial judgment” and made the findings required for immediate appeal.

Because this judgment dismisses the Original Petition only insofar as it purports to assert claims on behalf of the Partnerships and does not dismiss Dilks' personal claims (now asserted in the Amended Petition), only the Partnerships appeal from this judgment. They seek to have the dismissal vacated and their claims remanded for further proceedings. This Court has jurisdiction of the appeal, see Mo. Const. art. V, § 10, and the trial court's judgment is affirmed.

II. AnalysisA. Final and Appealable Judgment

The trial court's judgment dismissing the Partnerships' claims is silent as to whether that dismissal was with or without prejudice. Under Rule 67.03, therefore, the dismissal is assumed to be without prejudice. This raises a question of whether the judgment is final and appealable, however, because this Court occasionally has referred to a “general rule that a dismissal without prejudice is not a final judgment and, therefore, is not appealable.”Chromalloy Am. Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 3 (Mo. banc 1997).

It is unclear to what extent, if any, this “general rule” ever was followed. Over time, however, exceptions seemed to have swallowed all or nearly all of whatever rule once might have existed. For example, in Chromalloy, this Court held that a dismissal without prejudice may be appealed if—but only to the extent that—the dismissal decides some issue with preclusive effect. Id. Here, the trial court's judgment states that the Original Petition was not effective for the purpose of asserting claims on behalf of the Partnerships. That judgment has preclusive effect in the sense that no subsequent action by the Partnerships can correct the defect noted in the judgment or render the Original Petition effective for that purpose. Accordingly, the Partnerships are entitled to appellate review of this judgment. Id. (recognizing exception to the “general rule” where the “dismissal has the practical effect of terminating the litigation in the form cast”) (emphasis added).

B. Limited Partnerships May Appear and Assert Claims Only By and Through a Licensed Attorney

A natural person ordinarily is entitled to appear and assert claims on his own behalf in Missouri's courts, but a corporation may appear only through an attorney licensed or admitted to practice here by this Court.

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.

Clark v. Austin, 340 Mo. 467, 101 S.W.2d 977, 982 (1937) (emphasis added). This view is shared almost universally. See, e.g., Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 201–02, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993) (“It has been the law for the better part of two centuries, for example, that a corporation may appear in the federal courts only through licensed counsel.”); 19 Am.Jur.2d Corporations § 1874 (citing Osborn v. Bank of U.S., 9 Wheat. 738, 22 U.S. 738, 830, 6 L.Ed. 204 (1824) (Marshall, C.J.) (“A corporation, it is true, can appear only by attorney, while a natural person may appear for himself.”)).

Limited partnerships, like corporations, are not natural persons. They exist solely because of—and only to the extent they comply with—the provisions of chapter 359 of the Revised Statutes of Missouri, titled “Uniform Limited Partnership Law.” See, e.g.,§ 359.091.1, RSMo 2000 (“to form a limited partnership, a certificate of limited partnership...