Watson v. Gibson Capital, L.L.C.

• Decision Date: 17 June 2008
• Docket Number: No. 103,997.,103,997.
• Parties: Brent WATSON, Plaintiff/Appellee v. GIBSON CAPITAL, L.L.C., and David Gibson, Individually, Defendants/Appellants.
• Court: Oklahoma Supreme Court

187 P.3d 735

2008 OK 56

Brent WATSON, Plaintiff/Appellee v. GIBSON CAPITAL, L.L.C., and David Gibson, Individually, Defendants/Appellants.

No. 103,997.

Supreme Court of Oklahoma.

June 17, 2008.

ON CERTIORARI TO THE COURT OF CIVIL APPEALS, DIV. I

¶ 0 In an action to recover damages for property loss caused by fire, the plaintiff filed a voluntary dismissal with prejudice without the knowledge of his counsel of record. On the motion of plaintiff's lawyer, the trial judge, David Peterson of the District Court in Tulsa County, vacated the dismissal. The Court of Civil Appeals reversed the vacation order. On certiorari granted upon the plaintiff's petition.

THE COURT OF CIVIL APPEALS' OPINION IS VACATED AND THE TRIAL COURT'S ORDER IS AFFIRMED; THE CAUSE IS REMANDED FOR FURTHER PROCEEDINGS TO BE CONSISTENT WITH TODAY'S PRONOUNCEMENT.

John M. Thetford, Tony Laizure, Stipe, Harper, Laizure, Uselton, Belote, Maxcey & Thetford, Tulsa, OK, for Plaintiff/Appellee.

Eugene Robinson, Kenneth M. Yates, The Robinson Law Firm, P.C., Tulsa, OK, for Defendants/Appellants.¹

OPALA, J.

¶ 1 The dispositive issue on certiorari is whether a client, while represented by counsel of record, may file papers in an active case in which he is a party without the signature of his lawyer. We answer in the negative.

I THE ANATOMY OF LITIGATION

¶ 2 Brent Watson (Watson) brought an action on 22 March 2005 against David Gibson and Gibson Capital L.L.C. (collectively called Gibson) for damages to his property. He alleged that Gibson caused a fire which destroyed his property then stored on premises leased from Gibson. At the time the petition was filed (and at all other times relevant here), Watson was represented by counsel of record who had entered an appearance in the case.

¶ 3 On 17 March 2006 Watson signed and filed a dismissal of the action with prejudice. Ten days later Watson's counsel of record brought a motion to vacate the client's dismissal, invoking the provisions of 12 O.S.2001 § 1031. According to counsel's motion, (a) Watson suffered severe emotional distress and psychological injuries caused by the destruction of his business; (b) he filed a dismissal with prejudice without the consent of counsel and without appreciating the consequences of his action; and (c) under the terms of 12 O.S.2001 § 1031.1 the court has unlimited power to vacate or modify the plaintiff's act within 30 days of its filing. Gibson responded that the motion was without merit because (a) there was no judgment to vacate; (b) it was Watson, not the trial court, who signed and filed the dismissal; and (c) in the absence of a judge-signed judgment or other court order, the terms of 12 O.S.2001 § 1031 are inapplicable to the proceeding for vacation of Watson's dismissal.

¶ 4 At the hearing on the motion to vacate, testimony was introduced as to Watson's lack of mental competency at the time he filed the dismissal. Upon consideration of the witnesses' testimony and the parties' briefs, the trial court vacated the dismissal which had been filed by the plaintiff alone, acting without being joined by his lawyer. The Court of Civil Appeals (COCA) reversed the trial court's order. According to COCA, the terms of 12 O.S.2001 § 1031.1² do not apply to this case because there was here no terminal decision entered by the trial court. COCA notes that Watson's dismissal was made pursuant to the terms of 12 O.S.Supp. 2004 § 684,³ which authorize a party's termination of suit without an order of the court.

II THE ARGUMENTS ON CERTIORARI

¶ 5 Watson asserts that COCA erred in concluding the trial court lacked jurisdiction either under 12 O.S.2001 § 1031 or § 1031.1 to vacate the dismissal. According to Watson, the trial court (a) had virtually unlimited power under § 1031.1 to vacate or modify a dismissal within 30 days of its filing and (b) had the authority to view the dismissal with prejudice as a nullity since it was done by a represented party without the joinder of his attorney of record.

¶ 6 Gibson counters COCA correctly concluded that (a) Watson, although represented by counsel, was authorized by the terms of 12 O.S.Supp.2004 § 684 to sign and file a voluntary dismissal of his own lawsuit and (b) the trial court exceeded its jurisdiction by setting aside Watson's own voluntary dismissal. According to Gibson, nothing in the text of 12 O.S.Supp.2004 § 2011(A)⁴ deprives a represented party of the power voluntarily to dismiss its own action. Gibson maintains that because Watson voluntarily terminated the lawsuit, there was no terminal trial court's decision which could trigger its § 1031.1 authority to order a vacation. Watson simply filed his own termination of litigation. According to Gibson, the cases relied upon by Watson are not in conflict with COCA's pronouncement.⁵

III COMMON-LAW NORMS OF INTERACTION BY AN ATTORNEY WITH A CLIENT

¶ 7 We are committed to the common-law norms of interaction by an attorney with a client and to the duties each owes to the other.⁶ As a general rule a party who is represented by counsel of record⁷ stands deprived of power to act as his own attorney in the litigation.⁸ While a party may, at his own election, appear either in person or by counsel of record, no litigant may do both by acting as a party and a lawyer while having a counsel of record in the litigated case.

¶ 8 Clients possess unlimited power to discharge a lawyer.⁹ The client who wants to take over a lawsuit from the lawyer must first (a) discharge the counsel of record by a document on file in court and then (b) proceed independently (pro se) as an unrepresented party. But while the lawyer continues to hold the status as counsel of record, it is the lawyer alone who holds the position of magister litis—the master of the client's litigation.¹⁰ Anterior to the lawyer's release from employment a represented client may not, without the lawyer's consent, dismiss his or her case then pending in the court. In short, judges cannot act on requests pressed before them by represented clients alone, and represented parties cannot act in court sans their lawyers of record.

¶ 9 The general rule that a party who is represented by an attorney of record will not be recognized by the court as an actor in propria persona in the conduct of his own case applies with equal force to the filing of documents.¹¹ While representing a client in court a lawyer has exclusive authority to file papers for the client in the case in which the lawyer appears as counsel of record. A client-filed paper, to be effective, must either bear the lawyer's signature or be preceded by the filing in the case of a document that discharges the lawyer and gives him (or her) notice of the employment's termination. The suit's dismissal under consideration here was facially flawed and hence utterly ineffective. This is so because it was filed solely by a client represented by counsel of record without having the lawyer join him in the document.

¶ 10 This broad common-law rule, which stands confined to forensic representation,¹² has never been repealed by an Oklahoma statute. None of the statutes pressed by the parties in contest deals with the precise issue here—the extent of authority, if any, a client represented by counsel of record may continue to exercise in court proceedings without having the approval of his lawyer of record.

¶ 11 The plaintiff's facially ineffective dismissal, which constitutes no impediment of record to the plaintiff's prosecution of his claim, was correctly vacated by the trial court.¹³

IV THE COMMON LAW IS NOT REPEALED BY SILENCE

¶ 12 Gibson's view that a represented client is authorized by the terms of 12 O.S.Supp.2004 § 684¹⁴ to sign and file a dismissal of his own lawsuit is incorrect. The terms of § 684 mean that either a pro se party or a represented party's counsel may file a dismissal. Nowhere does the cited statute's text re-invest a represented party, contrary to the teachings of the common law, with its earlier capacity to act alone in litigation. In short, no part of § 684's text confers upon the represented party the power to dismiss a suit without being joined by his counsel of record. The common law, which in this state remains in full force unless some legislative enactment explicitly provides otherwise,¹⁵ may not be viewed as having been abrogated either by silence or mere implication.¹⁶

V SUMMARY

¶ 13 A party to an action who is represented by counsel of record may not act independently as his own attorney in the case. A dismissal of the action filed by a represented client without being joined by the counsel of record or without having earlier discharged his lawyer from employment is facially ineffective. The attorney-of-record status extends to the client's forensic representation. Because the plaintiff's dismissal was facially ineffective, the trial court did not err in setting it aside. A correct trial court's decision will be affirmed even if it is apparent from the transcript of oral proceedings that it was rendered upon the wrong or inapplicable reason.¹⁷

¶ 14 The message of today's pronouncement, which governs important aspects of pro se and by-counsel representation, is simple and clear.

¶ 15 One who is represented by counsel of record will not be recognized when attempting to act pro se before one's counsel stands discharged and that act appears of record. Nor will a pro se litigant be recognized when attempting to act by counsel until the newly-chosen counsel has made an appearance of record for the client as that party's attorney in the case.

¶ 16 Our pronouncement restates the centuries-old rules of legal practice embodied in Oklahoma's common law that stands unaltered by statute. These rules regulate the framework of forensic interaction by the court with counsel and with the parties, both those who are represented by a lawyer of record as well as those who are appearing pro se.

¶ 17 On certiorari granted upon the plaintiff's petition, the...