Shenandoah Sales & Serv., Inc. v. Assessor of Jefferson Cnty.

• Decision Date: 09 February 2012
• Docket Number: 11–0701.,Nos. 11–0248,s. 11–0248
• Citation: 724 S.E.2d 733,228 W.Va. 762
• Court: West Virginia Supreme Court
• Parties: SHENANDOAH SALES & SERVICE, INC., Plaintiff below, Petitioner v. ASSESSOR OF JEFFERSON COUNTY, Angela Banks, Defendant below, Respondent.

228 W.Va. 762

724 S.E.2d 733

SHENANDOAH SALES & SERVICE, INC., Plaintiff below, Petitioner

v.ASSESSOR OF JEFFERSON COUNTY, Angela Banks, Defendant below, Respondent.

Nos. 11–0248

11–0701.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 10, 2012.Decided Feb. 9, 2012.

Held Unconstitutional

West's Ann.W.Va.Code, 11–3–25(b)

Syllabus by the Court

1. “The exclusive authority to define, regulate and control the practice of law in West Virginia is vested in the Supreme Court of Appeals.” Syllabus Point 1, State ex rel. Askin v. Dostert, 170 W.Va. 562, 295 S.E.2d 271 (1982).

2. The phrase “by his or her agent” contained in W. Va.Code § 11–3–25(b) [2010], allowing a non-lawyer agent to appeal a ruling of the board of equalization and review to the circuit court and engage in activities which constitute the practice of law, is a legislative encroachment on this Court's exclusive authority to define, regulate and control the practice of law.

3. W. Va.Code § 11–3–25(b) [2010] is unconstitutional only insofar as the word “agent” allows an applicant's non-lawyer representative to appeal a decision of the board of equalization and review to a circuit court.

4. “In the exercise of their inherent power the courts may supervise, regulate and control the practice of law by duly authorized attorneys and prevent the unauthorized practice of law by any person, agency or corporation.” Syllabus Point 10, West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420 (1959).

David C. Tabb, Corporate Vice President of Shenandoah Sales & Services, Inc., Appearing on behalf of Petitioner.

Stephanie F. Grove, Esq., Assistant Prosecuting Attorney, Charles Town, WV, for Respondent.

KETCHUM, Chief Justice:

This is a consolidated appeal of two cases from the Circuit Court of Jefferson County wherein the circuit court dismissed two appeals filed by a corporation, Shenandoah Sales & Services, Inc. (“corporation” or “Shenandoah”), disputing the Jefferson County Assessor's valuation of real estate owned by the corporation. The corporation failed to retain a lawyer to prosecute its appeals to the circuit court, and instead appeared through its vice-president, David C. Tabb. The circuit judge ordered the corporation to appear through a lawyer in circuit court and stated that the court would not accept pleadings or motions from the corporation that were not signed by a lawyer. Despite this order from the circuit court, the corporation failed to retain a lawyer and the circuit court dismissed the corporation's appeals.

The corporation's vice-president, David C. Tabb, argues that the circuit court erred by: (1) ruling that a corporation cannot be represented by a non-lawyer corporate agent in a circuit court; (2) failing to hold a hearing before dismissing both appeals; and (3) dismissing one of the appeals while there was a motion to disqualify the circuit judge pending.

After thorough consideration of the briefs, the record submitted on appeal, and the oral arguments of the parties, we affirm the circuit court's orders dismissing the two appeals.

I. Facts & Procedural Background

David C. Tabb, the vice-president of Shenandoah Sales & Services, Inc., ¹ disputed the Jefferson County Assessor's 2010 and 2011 real estate tax assessment of property ² owned by the corporation. The first case before us (No. 11–0248) is Mr. Tabb's appeal of the 2010 real estate tax assessment. The second case (No. 11–0701) is Mr. Tabb's appeal of the 2011 real estate tax assessment.

After objecting to the 2010 assessment, the corporation was given a hearing and presented arguments and evidence before the Jefferson County Board of Review and Equalization.³ The corporation did not retain legal counsel for this hearing before the board; instead it was represented by Mr. Tabb. The board denied Mr. Tabb's objections to the real estate tax assessment and approved the assessor's valuation of the subject property. Mr. Tabb appealed the board's ruling to the Circuit Court of Jefferson County.

Mr. Tabb sought to represent the corporation as its “agent” in the appeal to the circuit court. By letter dated March 18, 2010, the circuit court informed the corporation that:

It is a long-standing legal notion that corporations must be represented by a licensed attorney in courts of law. Osborn v. President, Directors & Co. of the Bank of the United States, 22 U.S. 738 [9 Wheat. 738, 6 L.Ed. 204] (1824). The State of West Virginia recognizes corporations as a separate and distinct person and a non-lawyer representing a corporation constitutes the unauthorized practice of law ...

If you wish to continue filing motions and pleadings with this Court, an attorney must enter an appearance on behalf of your corporation and sign all pleadings and motions. Any filings made by a non-attorney will not be accepted or reviewed.

The circuit court sent the corporation another letter on April 8, 2010, again stating that the corporation must retain a lawyer to proceed with the appeal of the 2010 real estate tax assessment. The corporation failed to retain a lawyer after receiving these letters from the circuit court and continued filing motions through Mr. Tabb.

Five months after informing the corporation that it must retain a lawyer to appeal the board's ruling, the circuit court dismissed the appeal of the 2010 tax assessment by order entered on September 14, 2010. The circuit court's order stated that it was dismissing the appeal because of the corporation's failure to retain a lawyer. Mr. Tabb's appeal of the September 14, 2010, circuit court order is the basis of case No. 11–0248.

The corporation also failed to retain a lawyer when it appealed the 2011 real estate tax assessment to the circuit court. The appeal concerning the 2011 tax assessment was also preceded by a hearing before the Jefferson County Board of Review and Equalization, in which Mr. Tabb was given the opportunity to present evidence and argue on behalf of the corporation. As with the 2010 hearing, the board denied Mr. Tabb's objections and approved the 2011 tax assessment on the subject property.

The circuit court dismissed the 2011 appeal by order entered on March 23, 2011, stating “[a] corporation may not represent itself pro se in the circuit court. It appearing to the Court that an attorney has not filed a notice of appearance on behalf of the Plaintiff Corporation, this matter is hereby DISMISSED, sua sponte. No further action will be taken by this Court since the appeal has not been properly filed.” Mr. Tabb's appeal of the March 23, 2011, circuit court order is the basis of case No. 11–0701.

II. Standard of Review

On appeal to this Court, Mr. Tabb contests the two dismissal orders entered by the circuit court. Generally, when reviewing a circuit court's decision, we apply the following standard of review:

In reviewing challenges to the findings and conclusions of the circuit court, we apply a two-prong deferential standard of review. We review the final order and the ultimate disposition under an abuse of discretion standard, and we review the circuit court's underlying factual findings under a clearly erroneous standard. Questions of law are subject to a de novo review.

Syllabus Point 2, Walker v. West Virginia Ethics Comm'n, 201 W.Va. 108, 492 S.E.2d 167 (1997). With this standard in mind, we turn to the parties' arguments.

III. Analysis

Mr. Tabb raises three errors in this consolidated appeal. He argues that the circuit court erred by: (1) ruling that a corporation cannot be represented by a non-lawyer corporate agent in a circuit court; (2) failing to hold a hearing before dismissing both appeals, thereby violating the corporation's due process rights; and (3) dismissing the second appeal (No. 11–0701) while there was a motion to disqualify the circuit judge pending.

A. Can a Corporation Be Represented by a Non–Lawyer Corporate Agent in a Circuit Court?

Mr. Tabb's first argument is that the circuit court erred in ruling that a corporation is required to be represented by a lawyer in a trial court of record. Mr. Tabb makes three main arguments in support of this position: (1) West Virginia does not follow the general rule that a corporation must be represented by a lawyer in a trial court of record; (2) W. Va.Code § 11–3–25 [2010], allows an applicant to appeal a decision of the board of equalization and review through either an agent or an attorney; and (3) since Shenandoah is a closely-held corporation, consisting of only two people, the general rule requiring a corporation to be represented by a lawyer in a trial court of record should be relaxed.

By way of background, it is a well-settled legal principle that a corporation must be represented by a lawyer in a court of record. See, e.g., Cottringer v. State, Dept. of Employment Sec., 162 Wash.App. 782, 787, 257 P.3d 667, 669 (2011) (“Because a corporation is an artificial entity, necessarily its interests in a court proceeding must be represented by a person acting on its behalf. Representing another person or entity in court is the practice of law. To practice law, one must be an attorney.”); Jones v. Niagara Frontier Transp. Authority, 722 F.2d 20, 22 (2d Cir.1983) (“The rule that a corporation may litigate only through a duly licensed attorney is venerable and widespread.”); DeVilliers v. Atlas Corp., 360 F.2d 292, 294 (10th Cir.1966) (“[A] corporation can appear in a court of record only by an attorney at law.”); and Osborn v. Bank of United States, 22 U.S. 738, 830, 9 Wheat. 738, 6 L.Ed. 204 (1824) (Chief Justice John Marshall, writing for the majority, stated, “[a] corporation, it is true, can appear only by attorney[.]”).

Courts have offered a number of policy reasons why a corporation must be represented by a lawyer in a court of record. One court observed that, “unlike lay agents of corporations, attorneys are subject to professional rules of conduct and thus amenable to disciplinary action by the court for violations of ethical...