Wetzel v. Schlenvogt

• Decision Date: 09 November 2005
• Docket Number: No. 20050121.,No. 20050122.,20050121.,20050122.
• Citation: 2005 ND 190,705 N.W.2d 836
• Parties: Curt WETZEL, Petitioner and Appellee v. Orville P. SCHLENVOGT, Respondent and Appellant Cenex Oil, Petitioner and Appellee v. Orville Paul Schlenvogt, Respondent and Appellant.
• Court: North Dakota Supreme Court

705 N.W.2d 836

2005 ND 190

Curt WETZEL, Petitioner and Appellee v. Orville P. SCHLENVOGT, Respondent and Appellant Cenex Oil, Petitioner and Appellee v. Orville Paul Schlenvogt, Respondent and Appellant.

No. 20050121.

No. 20050122.

Supreme Court of North Dakota.

November 9, 2005.

COPYRIGHT MATERIAL OMITTED

No appearance by petitioners and appellees.

Chad C. Nodland, Chad C. Nodland, P.C., Bismarck, N.D., for respondent and appellant.

SANDSTROM, Justice.

[¶ 1] Orville Paul Schlenvogt appeals from a South Central Judicial District Court grant of two disorderly conduct restraining orders against him, enjoining him from having any contact with Curt Wetzel and Cenex Oil of Glen Ullin, North Dakota. We affirm the Wetzel restraining order, holding that a disorderly conduct restraining order does not require a pattern of behavior. We vacate the Cenex order, holding that when a case is commenced on behalf of a corporation by a non-attorney agent, the case and all legal documents signed by the non-attorney agent are void from the beginning.

I

[¶ 2] On January 3, 2005, two petitions for disorderly conduct restraining orders against Schlenvogt were filed with the South Central District Court. According to the petitions, Schlenvogt called Cenex in Glen Ullin on December 29, 2004. During the call, he complained that the lug nuts on a pickup tire Cenex had serviced for him were too tight. The conversation became heated after a Cenex employee stated the lug nuts could not have been overtightened. Schlenvogt hung up on the employee.

[¶ 3] According to the petitions, later that day Schlenvogt brought the tire into Cenex, where he continued to complain about Cenex's service. Schlenvogt insisted that the lug nuts were too tight and that he had to use a "cheater bar" to take the tire off. Three Cenex employees were present, including Wetzel. They insisted they use only a torque wrench when working on tires. According to the petitions, Wetzel's response to Schlenvogt's complaints was that it was "impossible." Schlenvogt then approached Wetzel and hit him. According to the employees' statements, one Cenex employee tended to Wetzel, while the other pushed Schlenvogt away and eventually out of the building.

[¶ 4] After the altercation, Wetzel, acting for himself, and Cenex, through its manager, Brian Schneider, petitioned for disorderly conduct restraining orders under N.D.C.C. § 12.1-31.2-01. Wetzel gave an unsworn statement to law enforcement officers, which was attached to his sworn petition. Copies of unsworn statements the other two Cenex employees had given to law enforcement officers were attached to Wetzel's petition. Copies of all three unsworn statements were attached to the Cenex petition. On the basis of the petitions and attached statements, two temporary restraining orders were issued against Schlenvogt, prohibiting him from having any contact with Wetzel or Cenex.

[¶ 5] At the February 15, 2005, district court hearing on the restraining orders, Wetzel represented himself and Schlenvogt appeared with counsel. Schneider was present. No lawyer appeared for Cenex. The lawyer for Schlenvogt made several arguments, including that Schneider was not an attorney and therefore could not appear in court on behalf of Cenex, that Schneider was committing a misdemeanor by appearing for Cenex and should be advised of his Fifth Amendment rights, and that the judge should recuse himself because he was a witness to Schneider's possible misdemeanor. The lawyer also argued that Cenex's temporary restraining order was unclear because it did not specify what Cenex property Schlenvogt must avoid. Finally, Schlenvogt's lawyer argued there were insufficient grounds to sustain a restraining order because the petitions did not allege a pattern of disorderly conduct, which he argued was required by law. The court rejected the arguments.

[¶ 6] Schlenvogt's lawyer then cross-examined Wetzel and Schneider. Wetzel testified that Schlenvogt came into Cenex with a tire and soon after began arguing with the employees about the alleged overtightened lug nuts. Wetzel testified he told Schlenvogt it was impossible that the lug nuts had been overtightened because they use a torque wrench when working on tires. According to Wetzel's testimony, Schlenvogt then hit him. Wetzel also testified that he had not had any contact with Schlenvogt for roughly 25 years before the incident. Schneider testified that he was not a licensed attorney. He also testified he was not at Cenex during the altercation but received a telephone call about it and arrived soon after. He also gave testimony regarding the property that the Glen Ullin Cenex owned.

[¶ 7] After hearing Wetzel's and Schneider's testimony, the court found there were reasonable grounds to support the petitions and therefore granted both restraining orders. While making its ruling, the court stated the restraining orders would "be in place for one year, until the 15th day of February of 2007." The discrepancy was not clarified during the hearing, and the written orders, as stated, are in effect until February 15, 2007.

[¶ 8] On appeal, Schlenvogt argues that because his acts did not constitute a pattern of conduct, which he contends is required by the statute, the trial court abused its discretion in granting both petitions. He also claims that the Cenex petition is invalid because Cenex was not represented by an attorney. Finally, Schlenvogt argues he was not given a full hearing by the district court.

[¶ 9] The district court had jurisdiction under N.D. Const. art. VI, § 8, and N.D.C.C. § 27-05-06. The appeal was timely under N.D.R.App.P. 4(a). This Court has jurisdiction under N.D. Const. art. VI, §§ 2, 6, and N.D.C.C. §§ 28-27-01, 28-27-02.

II

[¶ 10] Schlenvogt argues that the Cenex petition is invalid because Cenex was not represented by an attorney. Section 27-11-01, N.D.C.C., states:

Except as otherwise provided by state law or supreme court rule, a person may not practice law, act as an attorney or counselor at law in this state, or commence, conduct, or defend in any court of record of this state, any action or proceeding in which the person is not a party concerned, nor may a person be qualified to serve on a court of record unless that person has:

1. Secured from the supreme court a certificate of admission to the bar of this state; and

2. Secured an annual license therefor from the state board of law examiners.

Any person who violates this section is guilty of a class A misdemeanor.

Commencing an action and conducting oneself in court on behalf of another qualify as the practice of law. N.D.C.C. § 27-11-01; see also State v. Niska, 380 N.W.2d 646, 648 (N.D.1986) ("Niska's drafting of legal instruments and pleadings and providing legal advice" for Schmidt constituted the practice of law). Whether a corporation can be represented by a non-attorney agent in a legal proceeding and what happens to the matter when a corporation is not represented by an attorney are questions of law. United Accounts v. Teladvantage, 524 N.W.2d 605, 606 (N.D.1994). Thus, the issues are fully reviewable on appeal. Buchholz v. Buchholz, 1999 ND 36, ¶ 11, 590 N.W.2d 215. A district court errs as a matter of law when its decision is not in accordance with the law of North Dakota. Id.

[¶ 11] A corporation is an artificial person that must act through its agents. United Accounts v. Teladvantage, 499 N.W.2d 115, 117 n. 1 (N.D.1993). This Court has firmly adhered to the common law rule that a corporation may not be represented by a non-attorney agent in a legal proceeding. United Accounts, Inc. v. Teladvantage, Inc., 524 N.W.2d 605, 606-07 (N.D.1994) (citing Oahu Plumbing & Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 590 P.2d 570, 572 (1979)). This rule is born out of the necessity to have a court system that functions efficiently. Oahu Plumbing, 590 P.2d at 573 (citing Strong Delivery Ministry Ass'n v. Bd. of Appeals, 543 F.2d 32, 33 (7th Cir.1976)). Attorneys are knowledgeable of the law, the court system, and its rules of procedure, which keep legal matters moving smoothly through the courts. Id. Just as one unlicensed natural person may not act as an attorney for another natural person in his or her cause, an unlicensed natural person cannot attorn for an artificial person, such as a corporation. Id. at 574.

[¶ 12] This Court, however, has not decided what must happen to an underlying case or documents when a corporation is represented by a non-attorney agent. As a result of a corporation's appearance through a non-attorney agent in United Accounts, we rejected the appellant's brief and dismissed the appeal as frivolous. 524 N.W.2d at 607. Applying this logic to a trial court, the proper remedy would be to dismiss the action and strike all legal documents signed and filed by the non-attorney as void. Many other courts have refused to allow a corporation to appear before it without counsel and have disposed of the action. See, e.g., Carr Enter., Inc. v. United States, 698 F.2d 952, 953 (8th Cir.1983) (the plaintiff corporation's appearance through a non-attorney agent would be sufficient alone to affirm the district court's judgment against the plaintiff); Merco Constr. Eng'rs, Inc. v. Mun. Court, 21 Cal.3d 724, 147 Cal.Rptr. 631, 581 P.2d 636, 637 (1978) (refusing a writ of mandamus allowing a corporation to appear through a non-attorney agent in municipal court); Estate of Nagel, 950 P.2d 693, 694 (Colo.Ct.App.1997) (a petition or pleading that was not signed by an attorney on behalf of a corporation was void); Oahu Plumbing & Sheet Metal, Ltd. v. Kona Constr., Inc., 60 Haw. 372, 590 P.2d 570, 576 (1979) (default judgment was proper because the defendant corporation could not continue before the court without counsel); Berg v. Mid-Am. Indus., Inc., 293 Ill.App.3d 731, 228 Ill.Dec. 1, 688 N.E.2d 699, 704 (1997) ("a corporation can file a complaint only through a licensed attorney; any action...