Nicholson Supply Co. v. First Federal Sav. & Loan Ass'n of Hardee County

• Decision Date: 25 March 1966
• Docket Number: No. 6027,6027
• Citation: 184 So.2d 438
• Parties: NICHOLSON SUPPLY CO., Inc., a Florida corporation, Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF HARDEE COUNTY, a corporation under the laws of the United States, et al., Appellees.
• Court: Florida District Court of Appeals

Page 438

184 So.2d 438

19 A.L.R.3d 1067

NICHOLSON SUPPLY CO., Inc., a Florida corporation, Appellant, v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF HARDEE COUNTY, a corporation under the laws of the United States, et al., Appellees.

No. 6027.

District Court of Appeal of Florida, Second District.

March 25, 1966.

Frank B. Watson, Jr., of Roberts, Watson, Taylor & Friday, Ft. Myers, for appellant.

James J. Taylor and Lefferts L. Mabie, Jr., Wauchula, for appellees.

ALLEN, Chief Judge.

The appellant, Nicholson Supply Co., Inc., a corporation, was the plaintiff in the court below and appeals from an order entered the 7th of January, 1965, striking a complaint for foreclosure of a lien and dismissing said cause.

The appealed order is as follows:

'THIS CAUSE came on before me on motion by defendants to dismiss the complaint herein for failure to state a cause of action, and other grounds, and upon motion by defendants to strike said complaint upon the ground that the same was not signed by an attorney at law, and upon motion by plaintiff Nicholson Supply Co., Inc., to amend the original complaint by striking from the last page of said complaint the name of the plaintiff corporation and signature by its president and by inserting in lieu thereof the signature of counsel for plaintiff who have appeared since the filing of said complaint. Plaintiffs Amos L. Lunsford and Bi-County Fuel Company, a Florida corporation, have filed motions to dismiss this cause as to them for the reason that their claims have been settled in full. Such motions be and the same are granted.

'The court finds that defendants' motion to strike should be granted for the reason that a corporation may not appear or sign a pleading in propria persona and the attempted filing of said complaint by the president of such corporation, who is not a licensed attorney at law, is a nullity, and further, that such complaint is not amendable. It is, therefore, upon consideration,

'ORDERED AND ADJUDGED that plaintiff's motion to amend be and the same is hereby denied, and defendants' motion to strike the complaint be and the same is hereby granted, and said cause is hereby dismissed.'

We believe the following point on appeal, stated in the appellees' brief, pin-points the question before this court, which is apparently a case of first impression in Florida. The point stated is:

'Is a complaint, filed by a corporation through its president, not represented by an attorney, a nullity, not amendable so as to later affix an attorney's signature thereto?'

The record before us indicates that the complaint was actually prepared by a Wauchula attorney, licensed to practice law in Florida and in good standing, but who would not sign the complaint. The president of the corporation bringing the suit signed the complaint.

Rule 1.5 of the Florida Rules of Civil Procedure, 30 F.S.A., in effect at the time of the filing of this case, provides:

'(a) Pleadings to be Signed by Attorney. Every pleading of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated and who shall be duly licensed to practice law in Florida, and he may be required by an order of court to vouch for his authority, to represent and give the address of such party. Except when otherwise specifically provided the these Rules, pleadings as such need not be verified or accompanied by affidavit. The signature of an attorney shall constitute a certificate by him that he has read the pleadings; that to the best of his knowledge, information, and belief there is good ground to support it; and that it is not interposed for delay. If a pleading is not signed, or is signed with intent to defeat the purpose of this rule, it may be stricken as sham and false and the action may proceed as though the pleading had not been served.

'(b) Party not Represented by Attorney to Sign. A party who has no attorney but represents himself shall sign his pleading and state his address.'

The appellant contends, in essence, that (b) above authorizes it to represent itself and sign its pleadings. The appellant buttresses its argument by stating that a corporation is deemed a person as far as due process, etc., is concerned. This is so, but not so far as permitting a corporation to practice law in its individual name or by its officials to sign for it as, in effect, attorneys for the corporation. An individual is authorized to represent himself without the necessity of employing an attorney, but this rule is not stretched to permit a corporation to do so.

The appellant, in its brief, states:

'* * * The case of Tuttle vs Hi-Land Dairyman's Assoc. cited in (10 Utah 2d 195) 350 Pac.2d 616 involves the question of corporation appearing in Small Claims Court action without an Attorney. * * *'

The case cited does not aid the appellant as the following quotation from the case shows:

'As to the contention that the court erred in finding that a corporation cannot proceed in a small claims court except through a licensed attorney, appellants argue, and we agree, that a corporation is a 'person' within the meaning of the provisions of Sec. 78--6--2, U.C.A.1953. That section provides that actions may be maintained in small claims court by any person who executes an affidavit setting forth the nature of the claim. However, from the fact that a corporation is a 'person' which can maintain an action in a small claims court, it does not follow that any officer or employee of such corporation can properly institute such an action by executing such affidavit and appearing in behalf of the corporation at the hearing provided in the Small Claims Court Act. Corporations are different in that respect from natural persons. A corporation cannot practice law and must have a licensed attorney representing it in court matters.'

In Paradise v. Nowlin, 1948, 86 Cal.App.2d 897, 195 P.2d 867, the Court, in its opinion, said:

'The motion must be granted on the ground stated but there is another and more important reason for the dismissal of the appeal on the court's own motion, to wit, that the defendant corporation filed the notice of appeal in the superior court and its opposition to the dismissal in this court in propria persona. Such notice and opposition are void by reason of the corporation's lack of power to represent itself in an action in court. Defendant was represented by an attorney at the trial but his services apparently terminated with the entry of judgment in favor of plaintiffs.

'A composite of the rule in the decided cases,...