Opinion
NO. 2018-CA-001496-DG
01-17-2020
Misty PHILLIPS, Appellant v. M & M CORBIN PROPERTIES, LLC, Appellee
BRIEFS FOR APPELLANT: Melissa L. Tidwell, Barbourville, Kentucky. BRIEF FOR APPELLEE: John T. Blevins, Corbin, Kentucky.
BRIEFS FOR APPELLANT: Melissa L. Tidwell, Barbourville, Kentucky.
BRIEF FOR APPELLEE: John T. Blevins, Corbin, Kentucky.
BEFORE: CALDWELL, COMBS, AND LAMBERT, JUDGES.
OPINION
LAMBERT, JUDGE:
This matter is on discretionary review to determine whether the Whitley Circuit Court properly affirmed the judgment of the Whitley District Court in a forcible detainer action against Misty Phillips. Phillips had moved the district court to dismiss the suit filed by M & M Corbin Properties, LLC (M & M Properties), because it had been filed by the property manager, who was not an attorney nor the owner of the property. The district court denied Phillips’ motion because it had been untimely filed pursuant to the local rules. The circuit court affirmed on appeal, and we now reverse and remand.
In July 2016, Phillips signed a lease for a rental apartment managed by M & M Properties. On April 4, 2017, Sue Robinson, the property manager for M & M Properties, filed a forcible detainer complaint, stating that Phillips had abandoned the apartment and permitted three people not on the lease to live there, despite previous warnings. They had been disturbing the neighbors and stealing cable. Although there is some question about when the eviction notice was served, the record shows that it was served by the process server by posting it on a conspicuous place on Phillips’ premises and mailing it to her via the United States Postal Service on April 6, 2017. A trial was scheduled for Tuesday, April 11, 2017, in the district court. Phillips retained an attorney, who filed a motion to dismiss the day of the scheduled trial. The basis for the motion to dismiss was that Robinson, who filed the action as the landlord or manager for M & M Properties, was not the owner of the property and was not licensed to practice law. Therefore, she did not have the legal authority to file the action and her doing so constituted the unauthorized practice of law, making the complaint void. In support, Phillips cited to the unreported case of Bobbett v. Russellville Mobile Park, LLC , No. 2007-CA-000684-DG, 2008 WL 4182001 (Ky. App. Sept. 12, 2008).
Phillips and Robinson appeared at the April 11 trial date; Phillips was represented by counsel. Counsel for Phillips filed the motion to dismiss, citing the property manager’s unauthorized practice of law. The court refused to rely upon the unreported case cited by counsel in the motion. The court heard testimony from both Phillips and Robinson, after which it took the matter under submission.
On April 17, 2017, the district court entered a judgment in favor of M & M Properties and ordered Phillips to vacate the property within seven days. The court added the following sentence: "The motion to dismiss was not timely filed pursuant to local rules, and the motion is denied." Phillips appealed the judgment to the Whitley Circuit Court.
In her statement of appeal, Phillips raised two issues. First, she argued that the local rule requiring motions to be filed at least five days prior to a hearing is not applicable in forcible detainer actions because such actions are summary in nature. As a tenant, Phillips was only entitled to receive three days’ notice of the hearing on the forcible detainer complaint pursuant to Kentucky Revised Statutes (KRS) 383.210 and KRS 383.215, and to require five days’ notice for motions would mean a tenant would not be able to file a motion prior to the hearing. Phillips stated that she filed the motion at the earliest time possible. Therefore, the district court should have considered the motion. Second, Phillips argued that the complaint was void because it was filed by a non-attorney. The record does not reflect that M & M Properties filed a response.
In September 2018, the circuit court entered an order affirming the district court’s judgment. The court stated that because Phillips had received seven days’ notice of the hearing date, she had time to file her motion with proper notice. In addition, Phillips had not filed a motion for additional time to file her motion to dismiss. Because there was "no existing statute or caselaw establishing that two days is an insufficient time period for filing a motion[,]" the court rejected Phillips’ argument. Based upon that ruling, the court did not consider Phillips’ second argument. We accepted discretionary review of this case, and this appeal now follows.
On appeal, Phillips continues to argue that local rules related to service deadlines do not apply in forcible detainer proceedings and that the complaint was void. M & M Properties disputes her arguments and argues that her case is moot. "Being a question of statutory interpretation and a matter of law, we conduct a de novo review." Shinkle v. Turner , 496 S.W.3d 418, 420 (Ky. 2016) (citing Pennyrile Allied Community Services, Inc. v. Rogers , 459 S.W.3d 339, 342 (Ky. 2015) ).
We shall first address M & M Properties’ mootness argument. Because Phillips was no longer living at the residence in question, M & M Properties argues that her case is now moot and that she is in essence seeking an advisory opinion from this Court on the interaction of local rule.
In general, Kentucky courts have recognized that "unless there is an actual case involving a present, ongoing controversy, the issues surrounding it become moot." Com., Dep't of Corrections v. Engle , 302 S.W.3d 60, 63 (Ky. 2010). "Our courts do not function to give advisory opinions, even on important public issues, unless there is an actual case in controversy." Philpot v. Patton , 837 S.W.2d 491, 493 (Ky. 1992). However, exceptions to this rule have emerged, including "when a dispute is capable of repetition, yet evading review." Engle , 302 S.W.3d at 63. Another exception is for questions of "substantial public interest" as explained in Morgan v. Getter , 441 S.W.3d 94, 102 (Ky. 2014) :
Unlike the two-element "capable of repetition" exception, the "public interest" exception commonly has three elements,
all of which must be clearly shown:
The public interest exception allows a court to consider an otherwise moot case when (1) the question presented is of a public nature; (2) there is a need for an authoritative determination for the future guidance of public officers; and (3) there is a likelihood of future recurrence of the question.
In re Alfred H.H. , [233 Ill.2d 345, 355, 331 Ill.Dec. 1, 910 N.Ed.2d 74, 80 (2009) ].
A third is the "collateral consequences" exception as set forth in Calhoun v. Wood , 516 S.W.3d 357, 360 (Ky. App. 2017). Phillips has argued that both the collateral consequences and public interest exceptions apply in her case.
While there may be some merit to Phillips’ collateral consequences argument, we need not reach that exception because we hold that the public interest exception applies in this case. In Shinkle , supra , the Supreme Court of Kentucky addressed this exception in relation to the issue of "whether the filing of a forcible detainer complaint prior to the expiration of the one month notice provision complies with the special statutory requirements for a forcible entry and detainer action." Shinkle , 496 S.W.3d at 420. The Court analyzed the mootness question and held:
First, the proper and efficient application of the law pertaining to the special statutory proceeding for forcible entry and detainer is a matter of public interest. The general statutory scheme established for such proceedings, KRS 383.200 -280, although re-codified from time to time, is at least a hundred years old and arguably is now ill-suited to the reality of modern landlord-tenant relations. Second, the statutory process for the adjudication of forcible entry and detainer cases is difficult to apply in the modern court system. The dearth of reported appellate opinions addressing those difficulties leaves our district courts to improvise on their own with little guidance from the appellate courts, leading to inconsistent application of the same statutory standards. Third, the factual situation presented by this case is a recurrent event in modern life that very often arises under circumstances in which appellate review is highly unlikely. Consequently, we are satisfied that all three elements of the "public interest" exception to the mootness doctrine are present here, and our duty lies in resolving the issue for the benefit of those whose lives and property are affected by it.
Id. at 420-21 (footnote omitted).
The holding in Shinkle is equally applicable in the present case. Both questions Phillips raises in this appeal – the notice requirements in forcible entry and detainer proceedings and the unauthorized practice of law in such proceedings – are certainly questions of a public nature. There is need for additional guidance in future cases as to both questions, particularly with regard to the notice issue. And these questions are likely to recur in future forcible detainer cases. Therefore, we hold that the public interest exception to the mootness doctrine applies in this case, and we shall review the merits of Phillips’ arguments.
For her first argument, Phillips asserts that the circuit court wrongfully affirmed the district court’s denial of her motion to dismiss on procedural grounds. District Court Local Rule 2(203) for the 34th Judicial District, the local rule at issue in this case and upon which the district court relied, provides that "[m]otions must be filed and served no later than five days prior to the day of the scheduled hearing, unless a different time is required by other rules of court." Because Phillips filed and served her motion to dismiss on the day of the trial, the district court determined that she was not in compliance with the five-day service requirement set forth in the local rule and declined to address her argument regarding the unauthorized practice of law. The circuit court affirmed that ruling, noting that Phillips had been served with the petition in sufficient time to timely file her motion and did not seek an enlargement of time to do so.
Kentucky Rules of Civil Procedure (CR) 1(2), which sets forth the scope of Kentucky’s Civil Rules, provides that "[t]hese Rules govern procedure and practice in all actions of a civil nature in the Court of Justice except for special statutory proceedings, in which the procedural requirements of the statute shall prevail over any inconsistent procedures set forth in the Rules." "[C]auses of action to remedy a forcible entry or detainer were created by statute and exist today as a special statutory proceeding under KRS 383.200 -285." Shinkle , 496 S.W.3d at 421. In Baker v. Ryan , 967 S.W.2d 591, 593 (Ky. App. 1997), the Supreme Court of Kentucky explained the nature of forcible detainer actions, albeit in relation to discovery:
Forcible detainer actions are designed to be summary proceedings. In general, the only issues are possession by the plaintiff and detainer by the defendant. 35 Am Jur 2d Forcible Entry and Detainer § 6 (1992). "Notice periods are short, pleadings are restricted, triable issues are limited, discovery is generally unavailable, and the judgment is promptly operative." 2 Richard R. Powell, Powell on Real Property § 246[3] (1993). In Kentucky, a district court can hold trial in such a case as early as three days after service of the warrant notifying the tenant of the action. KRS 383.215. This does not appear to contemplate time for discovery.
Another provision is inconsistent with full-blown discovery under the civil rules. The rules separately authorize subpoenas for taking depositions, CR 45.04, and for a hearing or trial, 45.05. A forcible detainer statute expressly authorizes subpoenas to compel witnesses to testify at the inquest, but is silent as to depositions. KRS 383.230. The fact that the General Assembly expressly provided for subpoenas for trial suggests both that it did not consider this power implicit in forcible detainer actions, and that it did not intend to authorize depositions in such cases. If the civil rules applied in their entirety to forcible detainer actions, KRS 383.230 would be surplusage.
Forcible detainer actions are meant to be simple, speedy and inexpensive. In view of the overall purpose of these actions, we agree with the circuit court that the district court acted outside its statutory authority when it ordered discovery. We acknowledge the potential benefit of pretrial discovery to Baker and other tenants. However, they may still subpoena witnesses to testify on their behalf, cross-examine the landlord’s witnesses, and appeal adverse judgments to circuit court.
(Footnote omitted.) With that in mind, we shall consider the issue related to the application of the local rule as to motion notice.
KRS 383.210 sets forth the law for the issuance of warrants in forcible entry and detainer cases:
(1) Upon complaint by a person aggrieved by a forcible entry or detainer to the District Court of the county in which the land or tenement, or a principal part thereof, lies, a warrant shall issue to the sheriff or any constable, in substance as follows: "The Commonwealth
of Kentucky to the sheriff (or any constable) of __________ county: Whereas, A B hath made complaint that C D and E F did, on the _____ day of __________, forcibly enter into (or forcibly detain from the said A B) one (1) house and field on the waters of __________, in the county aforesaid (or other general description of the lands or tenements), which were in the peaceable possession of A B (or which the said C D and E F, tenants of the said A B, now hold against him): You are, therefore, commanded to summon a good and lawful jury of your county to meet on the premises, or at a place convenient thereto, on the _____ day of __________, to inquire into the forcible entry (or forcible detainer) aforesaid; and give to the said C D and E F at least three (3) days’ notice of the time and place of the meeting of the jury; and have then there this writ. Witness, etc."
(2) In the trial of writs of forcible entry, forcible detainer or forcible entry and detainer, if neither party, in person or by agent or attorney, demand a jury, the trial thereof shall be by the court. No such writ shall hereafter direct the summoning of a jury, and the sheriff or other officer to whose hands such writ may come to do execution thereof shall not summon a jury in such proceedings, unless he be by either party notified in writing that a jury is demanded. At the calling of the cause for trial either party may demand a jury.
KRS 383.215 addresses the execution of the warrant by the officer and provides as follows:
The officer shall give to each defendant notice, according to the directions of the warrant, and no inquiry shall be made against any defendant who has not been notified as aforesaid. If, however, the notice have been given to a defendant, but not three (3) days before the day of the meeting of the jury, the inquest shall, on his motion, be adjourned until the expiration of the three (3) days.
Both KRS 383.210 and 383.215 provide that the defendant, subject to the forcible detainer warrant, must have three days’ notice of the time and place of the trial. Local Rule 2(203) states that "[m]otions must be filed and served no later than five days prior to the day of the scheduled hearing, unless a different time is required by other rules of court." We agree with Phillips that the local rule is inconsistent with KRS Chapter 383 in relation to notice requirements because it would be impossible for all defendants to meet the five-day notice rule for filing motions. Therefore, the notice requirement set forth in Local Rule 2(203) has no application to forcible entry and detainer cases. The circuit court erred as a matter of law in upholding the district court’s decision to deny Phillips’ motion to dismiss without addressing the merits of her argument.
Neither the circuit court nor the district court considered Phillips’ purely legal argument that Sue Robinson, a non-attorney, was not permitted to file the complaint and appear for M & M Properties because of its status as a limited liability company. Because this is a legal issue, we shall consider the argument, and we agree with Phillips that Robinson was engaging in the unauthorized practice of law in doing so.
In Hornsby v. Housing Authority of Dry Ridge , 566 S.W.3d 587 (Ky. App. 2018), this Court extensively addressed the issue of whether the executive director of the housing authority could appear on its behalf as a non-attorney.
Hornsby argues in this Court that Kinman’s filing of the forcible detainer complaint and appearance in the district court on behalf of the Housing Authority constituted the unauthorized practice of
law. Hornsby contends that, contrary to the circuit court’s determination, simply because a housing authority has the power "to sue and be sued" does not mean that a non-attorney can represent that housing authority in a legal capacity. We agree.
Kentucky Supreme Court Rule 3.020 provides as follows:
The practice of law is any service rendered involving legal knowledge or legal advice, whether of representation, counsel or advocacy in or out of court, rendered in respect to the rights, duties, obligations, liabilities, or business relations of one requiring the services. But nothing herein shall prevent any natural person not holding himself out as a practicing attorney from drawing any instrument to which he is a party without consideration unto himself therefor. An appearance in the small claims division of the district court by a person who is an officer of or who is regularly employed in a managerial capacity by a corporation or partnership which is a party to the litigation in which the appearance is made shall not be considered as unauthorized practice of law.
Regarding the unauthorized practice of law, Kentucky’s highest Court in Frazee v. Citizens Fidelity Bank & Trust Co. , noted,
The basic consideration in suits involving unauthorized practice of law is the public interest. Public interest dictates that the judiciary protect the public from the incompetent, the untrained, and the unscrupulous in the practice of law. Only persons who meet the educational and character requirements of this Court and who, by virtue of admission to the Bar, are officers of the Court and subject to discipline thereby, may practice law. The sole exception is the person acting in his own behalf.
393 S.W.2d 778, 782 (Ky. 1965).
Our Supreme Court has also observed that "[t]he rules governing the practice of law in this Commonwealth clearly provide that pleadings, motions, and other papers, including motions for discretionary review, are to be signed by the party or his attorney of record." Brey v. Commonwealth , 917 S.W.2d 558 (Ky. 1996) (emphasis in original).
Over twenty years ago, the Kentucky Bar Association issued an Unauthorized Practice of Law Opinion, KBA U-38 (May 1983), which was formally adopted as an advisory opinion under SCR 3.530, wherein the question proffered was: "May the manager of rental real estate, who is not [a] lawyer and does not own the real estate, prepare and file a writ of forcible detainer without engaging in the unauthorized practice of law?" In answering the question in the negative, the KBA stated,
Since the manager of rental property is better situated to know when eviction is appropriate than any other person, and eviction involves his business expertise, some flexibility should be accorded in defining "unauthorized practice" as it relates to him.
But the application to the District Court for writ of forcible detainer constitutes the institution of a "civil action" and regardless of the form used or the name otherwise given it, that application constitutes a complaint. CR 1 & 2. KRS 383.210. It is a pleading.
It is virtually axiomatic that pleadings may be filed only by attorneys or by individual acting pro se....
A manager of rental property has no protectable estate in it, but is clearly
acting for another – the owner. KRS 385.585. The conclusion is inescapable that unless the established rule is contorted beyond recognition, the filing of a writ of forcible detainer is beyond the province of the real estate manager.
Subsequently, in 2008, a panel of this Court in the unpublished decision in Bobbett v. Russellville Mobile Park, LLC , 2007-CA-000684-DG, 2008 WL 4182001 (Ky. App. Sept. 12, 2008) relied upon the Bar Association’s advisory opinion in concluding that the manager of a limited liability company, owned solely by the manager and his wife, engaged in the unauthorized practice of law when he signed and filed a forcible detainer complaint.[ ] This Court noted, "Mr. Rockaway was not ‘acting in his own behalf,’ when he filed the forcible detainer complaint against the Bobbetts, so he does not qualify for the exception to the rule that only members of the Bar may practice law." Id. at *2 (quoting Frazee , 393 S.W.2d at 782 ).
....
Kentucky courts have long held that a non-attorney officer of a corporation or limited liability company may not itself engage in the practice of law. Kentucky Bar Association v. Tussey , 476 S.W.2d 177, 180 (Ky. 1972) ("That a corporation may not draw legal instruments through a nonprofessional officer or employee is no more phenomenal than its inability to be so represented in court."); Flynn v. Songer , 399 S.W.2d 491, 494 (Ky. 1966) ("A corporation cannot practice law and must have a licensed attorney representing it in court matters.") (internal quotation marks and citation omitted); see also Kentucky State Bar Ass'n v. First Federal Sav. and Loan Ass'n of Covington , 342 S.W.2d 397 (Ky. 1960). We perceive no real distinction with respect to a housing authority. As noted by the Illinois appellate court, "Municipal corporations, like their business counterparts, are soulless and inanimate, and when an agent undertakes to practice law on behalf of such a principal, he must be licensed to do so." Housing Authority of Cook Cty. v. Tonsul , 115 Ill.App.3d 739, 71 Ill.Dec. 369, 450 N.E.2d 1248, 1251 (1983).
Under our Constitution, the Kentucky Supreme Court has exclusive authority to define the practice of law, and to determine who may engage in such practice. KY. CONST. § 116. Any suggestion by the Housing Authority that KRS Chapter 80 somehow bestows upon Kinman, as the Executive Director, the authority to practice law without a license is untenable and without merit. Certainly, if we were to construe the statutory provisions in the manner in which the Housing Authority posits, they would necessarily be deemed unconstitutional. Turner v. Kentucky Bar Association , 980 S.W.2d 560, 563 (Ky. 1998) ("Undoubtedly, the separation of powers principles strictly prohibit the legislature from infringing upon the judiciary’s exclusive power to make rules governing the practice of law, court procedures, and any exceptions thereto."); see also Commonwealth v. Schumacher , 566 S.W.2d 762, 764 (Ky. App. 1978) ("when the legislature ... attempts to establish rules of appellate procedure, it
In a footnote, the Hornsby Court observed, "The appellant in Bobbett argued that because he was the sole owner of the LLC, they were essentially one in the same for purposes of filing the forcible detainer action. Were the tables turned, however, we feel confident that a sole owner of an LLC would surely seek to avoid liability based upon the legal distinction between the two." 566 S.W.3d at 591 n.3.
is contrary to the dictates of the Constitution.")
It is well-known in Kentucky that some housing authorities authorize their executive directors to file and proceed with forcible detainer actions on behalf of the housing authority in the absence of a licensed attorney. Trial courts, however, are not at liberty to circumvent or evade the rules and statutory provisions by turning a blind eye to the requirements for the sake of expedience. There can be no question that Kinman, in filing the forcible detainer complaint and appearing at the hearing, was not acting on her own behalf, but rather in the interest of the Housing Authority. As such, we can reach no other conclusion than that she was engaging in the unauthorized practice of law. As the Shinkle Court observed, "we cannot sanction procedural improvisations such as the one employed here" regardless of whether it is a common and accepted practice. 496 S.W.3d at 423. Our rules dictate what is and is not the unauthorized practice of law and we are required to follow them. A forcible detainer complaint is a pleading that must be filed and practiced by an attorney. As that was not done in this case, it must be dismissed.
Hornsby , 566 S.W.3d at 590-93 (footnotes omitted). Robinson had no authority to file the petition or appear before the district court on behalf of M & M Properties as a non-attorney.
We also agree with Phillips that the forcible detainer petition was a void action because it was not filed by an attorney for M & M Properties. This Court in Brozowski v. Johnson , 179 S.W.3d 261, 264-65 (Ky. App. 2005) (footnotes omitted), addressed the implication of CR 11 in such situations:
CR 11 provides in pertinent part as follows:
Every pleading, motion and other paper of a party represented by an attorney shall be signed by at least one attorney of record in his individual name, whose address shall be stated.... If a pleading, motion or other paper is not signed, it shall be stricken unless it is signed promptly after the omission is called to the attention of the pleader or movant.
The lack of a signature on a pleading is typically not a proper ground for dismissal. Rather, CR 11 provides that the remedy for "attacking such a deficient pleading ... is to have it stricken as sham and false." When the pleading that is not signed is the complaint, however, striking the pleading has the practical effect of ending the lawsuit, and dismissal is not improper.
And later in Bobbett v. Russellville Mobile Park , supra , which we relied upon in Hornsby , supra , this Court cited to Brozowski to hold that the filing of a detainer petition by a non-attorney makes the pleading void and subject to dismissal, not merely voidable. 2008 WL 4182001 at *3. Because M & M Properties is an LLC, the district court should have dismissed its detainer petition against Phillips because it was not filed by an attorney licensed to practice law in Kentucky.
For the foregoing reasons, the opinion of the Whitley Circuit Court is reversed, and this matter is remanded with the instruction that the action be remanded to the Whitley District Court for dismissal.
ALL CONCUR.