Court Holds That Pro Se Legal Malpractice Complaint Tolls Statute of Limitations

Edward X. Clinton, Jr.'s Legal Malpractice Legal Blogs

Licensed for 26 years

Attorney in Chicago, IL

 
H and H DEVELOPMENT, LLC v. Ramlow, 2012 MT 51 – Mont: Supreme Court 2012 – Google Scholar

This is an unusual procedural setting.  A corporation filed a pro se legal malpractice complaint against its former attorney.  The statute of limitations expired shortly thereafter.  The corporation then obtained counsel who filed an amended complaint.

The trial court held that the claim was barred by the statute of limitations for legal malpractice because (a) the pro se complaint was a nullity and (b) the amended complaint was filed after the statute of limitations had expired.

The Montana Supreme Court reversed.  It discussed the debate in the cases as to whether the pro se complaint was a nullity or contained a curable defect.  The case was then remanded to the trial court for further consideration.

The relevant discussion is as follows:

"¶22 The North Dakota Supreme Court in Carlson v. Workforce Safety and Insurance, 765 N.W.2d 691, ¶ 26 (N.D. 2009), determined that "[t]he proper remedy when a corporation is represented by a non-attorney agent is to dismiss the action and strike as void all legaldocuments signed and filed by the non-attorney." Several jurisdictions, on the other hand, have deemed pro se corporate complaints "curable defects." The Arizona Supreme Court held in Boydston v. Strole Development Co., 969 P.2d 653, 656 (Ariz. 1998), that "a reasonable opportunity should be given to cure the problem" of a pro se corporate filing. The Utah Court of Appeals in Graham v. Davis County Solid Waste Management and Energy Recovery Special Service District, 979 P.2d 363, ¶ 15 (Utah Ct. App. 1999), likewise rejected the district court’s determination that a pro se complaint filed by a corporation constitutes a complete nullity. The party potentially could have cured the defect by entering an appearance of counsel on its behalf. Graham, ¶ 15. To treat a pro se corporate complaint as a "curable defect" leaves open the possibility of amending the complaint to add a lawyer’s signature.

¶23 We have not yet addressed factors that a district court should apply to a pro se corporate complaint if the corporation later amends the filing to include a lawyer’s signature and then attempts to relate it back to the original complaint using M. R. Civ. P. 15(c). The Minnesota Supreme Court in Save Our Creeks v. City of Brooklyn Park, 699 N.W.2d 307 (Minn. 2005),addressed such a scenario. A federal district court certified the question of "whether a complaint filed and signed on behalf of a corporate entity by a non-lawyer is a legal nullity."Save Our Creeks, 699 N.W.2d at 309.
The court answered the certified question in the negative. Save Our Creeks, 699 N.W.2d at 308. The court determined that a corporate complaint signed by a non-lawyer does not necessarily constitute a nullity. Save Our Creeks,699 N.W.2d at 311. The court considered whether the corporation acted with knowledge that filing a pro se complaint was improper. The court analyzed whether the corporation had obtained counsel upon notice that it could not file pro se. The court evaluated the scope of the non-lawyer’s participation. And finally, the court reviewed whether the non-lawyer’s involvement had prejudiced the opposing party. Save Our Creeks, 699 N.W.2d at 311.
¶24 A district court has discretion to determine whether a corporation should be able to relate back to an amended complaint signed by a lawyer, to its original, pro se complaint. The district court in Weaver warned Weaver of the need to amend his pro se complaint to name a corporation as a party. Weaver, ¶ 16. Weaver failed to seek leave to amend during the nearly one year period that the court’s scheduling order allowed for amendments. Weaver, ¶ 17. We affirmed. Weaver, ¶ 19.
¶25 Courts should apply the factors deemed relevant by the Minnesota Supreme Court inSave Our Creeks. These factors include whether the entity had knowledge that it could not file a pro se complaint, the amount of time that has elapsed between learning of the prohibition and seeking counsel, whether the pro se complaint caused prejudice to the opposing party, and how extensively the non-lawyer participated in the proceeding.
¶26 The Tennessee Supreme Court deemed a missing lawyer’s signature on a corporation’s complaint to constitute a "defect in the filing." Old Hickory Eng. and Mach. Co. v. Henry, 937 S.W.2d 782, 786 (Tenn. 1996). The court declined to allow an appearance by counsel to resuscitate the earlier filed complaint. Counsel appeared for the first time more than one month after the defendant first had raised the issue. This month interval in the filing could not be considered "prompt" action to cure the defect in the original complaint. Old Hickory, 937 S.W.2d at 786.
¶27 A district court must evaluate the circumstances of each case as it arises. A district court’s analysis of these factors will ensure that district courts will not declare an otherwise valid complaint void for technical reasons. Citizens Awareness, ¶ 21. It further will ensure that corporations do not take advantage of the relation back doctrine offered by M. R. Civ. P. 15(c).
¶28 We do not need to reach the question of whether the District Court properly granted summary judgment to Ramlow and the Firms. We instead reverse and remand to the District Court to assess whether M. R. Civ. P. 15(c) permits H&H’s and David House’s 2010 amended complaint in Flathead County to relate back to H&H’s 2007 Lake County complaint pursuant to the criteria set forth in this opinion."
Edward X. Clinton, Jr.

A discussion of what is sufficient to toll the legal malpractice statute of limitations.

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