STATE OF MINNESOTA
IN COURT OF APPEALS
A15-0496
Hinckley Square Associates,
Respondent,
vs.
Leah D. Cervene,
Appellant
Filed November 9, 2015
Reversed
Chutich, Judge
Pine County District Court
File No. 58-CV-15-14
Hinckley Square Associates, Hopkins, Minnesota (respondent)
Gwen Updegraff, Legal Aid Service of Northeastern Minnesota, Duluth, Minnesota (for
appellant)
Considered and decided by Chutich, Presiding Judge; Ross, Judge; and Stauber,
Judge.
SYLLABUS
Unless otherwise authorized by court rule, limited partnerships must be
represented by licensed attorneys in pleadings and practice in district court.
OPINION
CHUTICH, Judge
On appeal from a judgment ordering her eviction, appellant Leah Cervene argues
that the district court erred in denying her motion to dismiss the complaint because
respondent-landlord Hinckley Square Associates (“Hinckley Square”) is a limited
partnership and did not appear through licensed counsel in district court. Because we
conclude that limited partnerships must be represented by counsel in district court, we
reverse the district court’s judgment evicting Cervene.
Cervene also argues that the district court erred (1) in declining to dismiss the case
because of Hinckley Square’s failure to give proper notices required by federal
regulations and the parties’ lease; (2) in finding that she owed the full amount claimed in
the complaint, despite Hinckley Square’s failure to adjust her rent obligation according to
her income as required by federal regulations and the parties’ lease; and (3) in finding
that Hinckley Square effectively increased her rent despite failing to give a one-rental-
period notice. Because we conclude that Hinckley Square should not have been allowed
to appear in court without licensed counsel, we do not reach the merits of these issues.
FACTS
This litigation arises out of a landlord-tenant dispute involving a federally
subsidized housing unit. The respondent-landlord, Hinckley Square, is a limited
partnership that owns and operates the multi-unit apartment building known as Hinckley
Square Apartments. The apartment complex is subsidized by the United States
Department of Agriculture, Rural Housing Service, and is therefore subject to the rules
and regulations governing rural housing service housing programs. See 7 C.F.R.
2
§§ 3560.1-3560.800 (2015).1 Operation of the apartment complex is also governed by
state law, see Minn. Stat. § 504B (2014), and the terms of its leases.
Cervene moved into Hinckley Square Apartments with her two children in
September 2012. According to federal regulations, Hinckley Square has an obligation to
recertify Cervene’s eligibility in the program and adjust her rent whenever her income
changes by $100 or more per month and must recertify for changes of $50 a month upon
her request. See 7 C.F.R. § 3560.152(e). Rural Housing Service regulations also require,
among other things, that a landlord issue a notice of lease violation and a notice of
termination before bringing an eviction action based on a material violation of the lease.
7 C.F.R. § 3560.159(a)(1)(ii).
In August of 2014, Cervene started a job and her income increased. Cervene
reported the increase and completed the paperwork for a recertification, but soon her
hours began to decline. When she reported her job in September, she was working five
days a week. By November, she was working only two days a week.
On November 12, 2014, the on-site manager gave Cervene a notice retroactively
increasing her rent, effective as of November 1, 2014. Cervene testified that she told the
manager that she could not afford the adjusted rent because her income had declined and
she requested a new recertification. Cervene never received a rent adjustment. On
December 30, she received a combined notice of lease violation and notice of intent to
1
The parties entered into their lease in 2012, but the regulations relevant to our legal
analysis are unchanged, and therefore we cite the current version of the Code of Federal
Regulations.
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evict. The notice stated that she must pay the delinquent amount or vacate the premises
48 hours later. On January 7, 2015, Hinckley Square filed an eviction action.
The action proceeded to a bench trial on January 21, 2015. Hinckley Square
sought to appear through two laypeople: a general partner and its management agent. At
trial, Cervene moved for dismissal based on Hinckley Square’s decision to appear
without an attorney. Cervene cited the Minnesota Supreme Court case Nicollet
Restoration, Inc. v. Turnham, 486 N.W.2d 753 (Minn. 1992), for the proposition that
artificial entities must be represented by licensed counsel when appearing in court. The
district court denied the motion to dismiss, concluding that Nicollet Restoration applies
only to corporations, not limited partnerships.
At trial, Hinckley Square’s general partner and management agent alternated
questioning witnesses and addressing the court, and the agent was the only witness called
by Hinckley Square. The district court entered judgment for Hinckley Square. Cervene
appeals.
ISSUE
Must a limited partnership be represented by licensed counsel in district
court?
ANALYSIS
I. Nonattorney Representation of Limited Partnerships
Cervene challenges the district court’s judgment ordering her eviction, arguing, as
a threshold matter, that the district court erred in denying her motion to dismiss the
eviction action because Hinckley Square, a limited partnership, was not represented at
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trial by a licensed attorney. An order denying a motion to dismiss is typically not
appealable, Minn. R. Civ. App. P. 103.03, but on appeal from a final judgment, we “may
review any order involving the merits or affecting the judgment.” Minn. R. Civ. App. P.
103.04.
Cervene asserts that limited partnerships must be represented by licensed counsel
in district court. This issue is a matter of first impression and a question of law, which
we review de novo. See In re Collier, 726 N.W.2d 799, 803 (Minn. 2007).
A. Minnesota Caselaw
Minnesota courts have held that certain business entities may only appear through
licensed counsel in district court. This caselaw is not based on statute, but on the
exclusive authority of the judiciary, under Article 3 of the Minnesota Constitution, to
regulate the practice of law in Minnesota courts. Nicollet Restoration, 486 N.W.2d at
755.
In Nicollet Restoration, the Minnesota Supreme Court articulated and affirmed the
common-law rule that corporations must be represented by counsel when appearing in
district court. Id. at 754, 756. The Nicollet Restoration court cited Minnesota caselaw,
federal court decisions, and common-law principles to illustrate the rule’s underlying
rationale. Id. at 754–55.
The supreme court explained the strong public policy considerations supporting
the rule:
A non-attorney agent of a corporation is not subject to the
ethical standards of the bar and is not subject to court
supervision or discipline. The agent knows but one master,
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the corporation, and owes no duty to the courts. In addition, a
corporation is an artificial entity which can only act through
agents. To permit a lay individual to appear on behalf of a
corporation would be to permit that individual to practice law
without a license. The purpose behind attorney licensing
requirements is the protection of the public and the courts
from the consequences of ignorance or venality.
Id. at 754 (quotation omitted). The supreme court noted that the licensed-attorney
requirement serves the “proper administration of justice” by ensuring that “legal
proceedings [are] carried on according to the rules of law and the practice of courts and
by those charged with the responsibility of legal knowledge and professional duty.” Id. at
754–55 (quoting Strong Delivery Ministry Ass'n v. Bd. of Appeals, 543 F.2d 32, 33–34
(7th Cir. 1976)). It also expressed concern that if corporations could be represented by
agents, disbarred or otherwise unlicensed attorneys could, in effect, practice law by
representing corporate clients. Id. at 755.
We recognize that two exceptions exist to the rule that corporations must appear
through a licensed attorney in court. Corporations and other entities may appear without
an attorney in conciliation-court proceedings. See Minn. R. Gen. Pract. 512(c) (“A
corporation, partnership, limited liability company, sole proprietorship, or association
may be represented in conciliation court by an officer, manager, or partner . . . .”). In
addition, landlords may appear through lay agents in the specialized housing courts of
Hennepin and Ramsey Counties. See Minn. R. Gen. Pract. 603 (stating that “[n]o person
other than a principal or a duly licensed lawyer shall be allowed to appear in Housing
Court unless the Power of Authority is attached to the complaint at the time of filing”);
Minn. R. Gen. Pract. 601 (stating that rules 601 through 612 apply to proceedings in
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Housing Court in Hennepin and Ramsey Counties). Hinckley Square initiated this action
in Pine County district court, so neither of these exceptions applies.
Minnesota appellate courts have not expressly addressed whether Nicollet
Restoration’s rule applies to limited partnerships, but this court extended the rule to
limited liability companies (“LLCs”). 301 Clifton Place L.L.C. v. 301 Clifton Place
Condominium Ass’n, 783 N.W.2d 551, 561 (Minn. App. 2010) (holding that LLCs must
be represented by counsel in pleadings and practice in Minnesota courts).
B. Federal Caselaw
The Nicollet Restoration court looked to federal caselaw to articulate the rationale
behind the common-law principle that corporations must be represented by licensed
counsel in district court. 486 N.W.2d at 754–55 (quoting Strong Delivery Ministry Ass’n,
543 F.2d at 33–34). Federal caselaw does not bind Minnesota courts, but because federal
courts have also addressed other artificial entities, including limited partnerships, by
employing the same underlying rationale that the supreme court used in Nicollet
Restoration, we find this federal caselaw persuasive.
Federal courts have held that limited partnerships must appear through licensed
counsel in federal court. Eagle Assocs. v. Bank of Montreal, 926 F.2d 1305, 1310 (2d
Cir. 1991). The Eagle Associates court drew from the same public policy reasons
articulated in Nicollet Restoration and concluded that it was “unable to perceive a
palpable difference between the situation where a layperson is representing others having
an interest in a corporation and the instant situation where a layperson wishes to represent
other partners, general and limited.” Id. at 1309–10. The court explained that allowing
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one partner to appear on behalf of a partnership allows her to represent more than just
herself. Id. at 1309.
Beyond limited partnerships, the tendency in federal caselaw has been to extend
the licensed-attorney requirement rather than to limit it. See Lattanzio v. Comta, 481
F.3d 137, 139–40 (2d Cir. 2007) (holding that a limited liability company with only one
member must be represented by counsel to appear in federal court); Jones v. Niagara
Frontier Transp. Auth., 722 F.2d 20, 20 (2d Cir. 1983) (single shareholder corporation);
Phillips v. Tobin, 548 F.2d 408, 415 (2d Cir.1976) (shareholder derivative suits).
The United States Supreme Court commented on this tendency, observing that
“save in a few aberrant cases, the lower courts have uniformly held that 28 U.S.C.
§ 1654 . . . does not allow corporations, partnerships, or associations to appear in federal
court otherwise than through a licensed attorney.” Rowland v. Cal. Men's Colony, 506
U.S. 194, 202, 202 n.5, 113 S. Ct. 716, 721, 721 n.5 (1993) (citing United States v.
Reeves, 431 F.2d 1187 (9th Cir. 1970) (holding that partner can appear on behalf of
partnership) and In re Holliday’s Tax Servs., Inc., 417 F. Supp. 182 (E.D.N.Y. 1976)
(holding that sole shareholder can appear on behalf of closely held corporation) as
aberrant cases). The Rowland court further noted that federal courts have generally
recognized that “the rationale for that rule applies equally to all artificial entities.” Id.
The reasoning of these federal cases persuades us that the underlying rationale in
Nicollet Restoration and 301 Clifton Place applies equally to limited partnerships, such
as Hinckley Square. Because we see no reason to treat limited partnerships differently
from corporations or limited liability companies in this context, we conclude that limited
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partnerships must also be represented by a licensed attorney in pleadings and practice in
district court except when otherwise authorized by court rule.
C. Remedy
Next, we address the appropriate remedy. In Save Our Creeks v. City of Brooklyn
Park, 699 N.W.2d 307 (Minn. 2005), the Minnesota Supreme Court determined that a
complaint filed and signed on behalf of a corporate entity by a layperson is not a legal
nullity, holding that the signature could be a curable defect if the participation by the
nonattorney is minimal. Id. at 310. But the court found that “in no event may [a
corporation] appear in court without an attorney.” Id. at 311.
Here, Hinckley Square completed trial without representation by an attorney. The
nonattorneys’ involvement is not a curable defect because it went significantly beyond
signing the complaint. Because the limited partnership could not appear in court without
an attorney, the district court should have dismissed the action. Accordingly, we reverse
the district court’s judgment evicting Cervene.
II. Additional Issues
Cervene raises three additional issues on appeal. Because we conclude that
Hinckley Square should not have been allowed to appear in court without licensed
counsel and that the judgment must be reversed on this ground alone, we do not reach the
merits of these issues.
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DECISION
We conclude that the district court erred in allowing Hinckley Square, a limited
partnership, to proceed through trial without a licensed attorney. We also conclude that
the participation of the nonattorneys is not a curable defect. Accordingly, we reverse the
judgment of the district court ordering Cervene’s eviction. In light of our decision, we do
not reach the additional issues raised by Cervene.
Reversed.
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