Yulin Li v. Rizzio

• Decision Date: 13 April 2011
• Docket Number: No. 10–0677.,10–0677.
• Citation: 801 N.W.2d 351
• Parties: YULIN LI, on Behalf of Gordon LEE, his Minor Son, and on his own behalf, Plaintiffs–Appellants,v.Joni RIZZIO, Defendant–Appellee.
• Court: Iowa Court of Appeals

801 N.W.2d 351

YULIN LI, on Behalf of Gordon LEE, his Minor Son, and on his own behalf, Plaintiffs–Appellants,

v.Joni RIZZIO, Defendant–Appellee.

No. 10–0677.

Court of Appeals of Iowa.

April 13, 2011.

Thomas F. Ochs of Gray, Stefani & Mitvalsky, P.L.C., Cedar Rapids, guardian ad litem for appellant Lee.Timothy S. White and Raymond Rinkol, Jr., of White Law Firm, P.L.C., for appellants.William H. Roemerman of Crawford, Sullivan, Read & Roemerman, P.C., Cedar Rapids, for appellee.Heard by VOGEL, P.J., and DOYLE and TABOR, JJ.TABOR, J.

This appeal poses the question whether a parent who is not an attorney must be represented by legal counsel when litigating a personal-injury lawsuit on behalf of his child. Finding no Iowa case addressing this question, we join courts from those jurisdictions holding that non-attorney parents' representation of their minor son or daughter constitutes the unauthorized practice of law. Having determined the father in this case engaged in the unauthorized practice of law when representing the interests of his son, we set aside as void the judgment as to the child's claims. We dismiss the portion of the father's appeal arguing for a new trial on behalf of the child. Further, we decline to grant a new trial on the father's loss-of-consortium claim because it was the jury's province to decide the question of negligence. Finally, we decline to grant a new trial on the ground that an irregularity occurred because the father did not preserve error on that claim.

I. Background Facts and Proceedings

On or about February 18, 2005, defendant Joni Rizzio provided in-home daycare for then eleven-month-old Gordon. While in Rizzio's care, Gordon tumbled down a flight of stairs. The parties offer different accounts about how the fall occurred. Yulin Li, Gordon's father, contends Rizzio negligently left a door open and Gordon, who was in a baby walker at the time, went through the doorway and fell—by himself—down the entire flight of stairs, landing on a concrete basement floor. Rizzio maintains she was holding Gordon in her arms when she fell part way down the stairs.

Yulin filed suit, acting pro se for his own claim and as next friend on behalf of Gordon. Yulin alleged Rizzio was negligent and that both he and Gordon suffered damages as a consequence. His petition included two counts: first, that Gordon sustained permanent injury, as well as “severe and permanent pain and suffering” as a consequence of Rizzio's negligence, and; second, that Yulin incurred expenses and lost “the society and services of a healthy child to which [he] was entitled” as a result of Rizzio's negligence.

A jury heard the case from November 16 until November 19, 2009. Yulin tried both his own claims and Gordon's claims without the assistance of counsel. On November 19, 2009, the jury returned a unanimous verdict finding Rizzio was not negligent in providing care for Gordon.

A. Post–Trial Motions & Proceedings

On November 30, 2009, Yulin filed a motion for a new trial on behalf of himself and his son. Yulin alleged the district court should grant a new trial because (1) “[p]laintiffs did not receive a fair and impartial trial and therefore substantial justice was not effectuated”, (2) neither substantial evidence nor law supported the verdict, and (3) he discovered new audiotape evidence material to the jury's verdict. Rizzio resisted and the issue was set for a hearing.

Before the hearing, two attorneys filed appearances on behalf of Yulin personally and in his capacity as Gordon's next friend. Yulin's counsel requested that the hearing be continued, that they be granted leave to amend the motion for new trial, and that the court appoint a guardian ad litem for Gordon. On January 19, 2010, the district court continued the hearing, granted the plaintiffs' motion to amend, and appointed a guardian ad litem for Gordon.

On February 22, 2010, Yulin's counsel filed an amended motion for a new trial on Gordon's behalf; the motion asserted irregularity in the proceedings as a new ground for relief. The motion urged the district court to grant a new trial for three reasons: (1) because the court failed to appoint a guardian ad litem for Gordon, irregularity occurred and the child's interests were insufficiently protected; (2) neither substantial evidence nor law supported the verdict because Rizzio “was negligent under any theory provided in court”; and (3) Yulin discovered new, material evidence not available at trial.

On March 1, 2010, the day before the hearing on the new-trial motion, Gordon's guardian ad litem (GAL) filed a report contending Yulin engaged in the unauthorized practice of law by representing Gordon before the district court. The GAL argued Gordon was entitled to a new trial where his claims should be presented by a licensed attorney. The GAL, in essence, argued that a parent, having initiated a lawsuit as a next friend on behalf of a child, may not also act as the attorney for the child because doing so amounts to the unauthorized practice of law and contravenes a child's right to trained legal assistance. ¹

Rizzio responded to the GAL report on March 2, 2010, the day of the hearing. She asserted the report raised a new issue—that Yulin engaged in the unauthorized practice of law—and contended the district court could not reach the merits because it was not raised within the time permitted for post-trial motions. Rizzio argued, in the alternative, that “the finding of unauthorized practice [of law] has no effect on the validity of judgments rendered before the date of the finding,” and the GAL neither asserted nor proved prejudice arising from the alleged unauthorized practice, which is required. Finally, Rizzio contended Iowa law allows a next friend to proceed pro se on behalf of a minor until directed otherwise by the court because such matters are governed by the court's “inherent power to police its own proceedings.”

On March 2, 2010, the district court held a hearing on the motion for a new trial. After the hearing, the GAL filed a document captioned “Reply to Defendant's Response to Report of Guardian Ad Litem.” In that document, the GAL abandoned its claim that Gordon should receive a new trial and instead argued the adverse judgment on Gordon's claim was null and void. With respect to preservation, the GAL argued the issue was properly before the court because a void judgment can be attacked at any time. With respect to the substantive argument, he asserted Yulin's representation of Gordon's claim was unauthorized and resulted in two consequences that rendered the judgment void: (1) the court did not obtain personal jurisdiction over Gordon,² and (2) permitting Yulin to prosecute Gordon's claim violated Gordon's due process rights. The GAL contended a next friend is not authorized to bring suit on behalf of another without legal representation because our rules restrict who may practice law and no statute, court rule, or appellate decision allows non-lawyer parents to represent their children in court proceedings. Moreover, he argued parents, acting as next friends, cannot appear pro se on behalf of their children because pro se litigants represent their own claims. But next friends are not parties in the suit and cannot be said to be representing their own claims. Rather, they are representing the claims of another—the child.

On March 24, 2010, the district court issued an order declining to grant a new trial or to void the judgment. The court declined a new trial on the grounds of irregularity, explaining it was proper for Gordon to proceed via a next friend rather than a guardian ad litem. The court viewed Yulin's argument as a “quibble over a meaningless distinction,” stating that “legally there is no meaningful distinction between a ‘next friend’ and a guardian ad litem.” The court reasoned that both positions perform the same duties and operate under the court's supervision; and neither a next friend nor a guardian ad litem is required to be an attorney. According to the court, “[t]he only difference between the two offices is in the creation”—a “ ‘next friend’ is someone who volunteers” while a “guardian ad litem is someone drafted by the court.” It also expressed concern that our law has no provision providing compensation for a guardian ad litem in this civil context.

The court also concluded the verdict administered substantial justice and was supported by both substantial evidence and law, noting “[e]vidence is not insubstantial simply because it may support contrary inferences,” and the jury's “ ‘no’ verdict merely demonstrate[d]” Yulin failed to satisfy his burden. The court further found that because Yulin possessed the audiotape alleged to be newly discovered evidence for more than four years before trial, the tape did not support granting a new trial.

The court also declined to hold the adverse judgment was void. Although the court opined the issue was not properly before it because the claim was raised in a “report to the court” and not a “motion,” the court nevertheless addressed the merits of the claim. It noted the GAL cited no authority supporting its contention that a child's constitutional rights to due process are violated when “a parent appears pro se ... acting as a minor child's next friend.” And, in the absence of case law or statutory authority supporting that position, the court declined to “find that permitting Gordon's father to appear pro se as Gordon's next friend [was] a procedural defect serious enough to constitute a violation of his due process rights, or [was] jurisdictional, which would render the verdict void.” The court further lamented:

[If it] void[ed] the judgment in this case, it could put in peril other judgments entered in name changes, domestic abuse protective orders, and other civil matters where a parent has appeared pro se when filing an action as next friend for their minor children.

B. Appellate Proceedings

Both Yulin's...