Michael Bandler, MB&Co, Ltd. a/k/a Michael Bandler & Company v. Cohen Rosenthal & Kramer, LLP

2015 VT 115, 131 A.3d 733, 200 Vt. 333, 2015 Vt. LEXIS 96
CourtSupreme Court of Vermont
DecidedSeptember 11, 2015
Docket2015-035
StatusPublished
Cited by8 cases

This text of 2015 VT 115 (Michael Bandler, MB&Co, Ltd. a/k/a Michael Bandler & Company v. Cohen Rosenthal & Kramer, LLP) is published on Counsel Stack Legal Research, covering Supreme Court of Vermont primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Michael Bandler, MB&Co, Ltd. a/k/a Michael Bandler & Company v. Cohen Rosenthal & Kramer, LLP, 2015 VT 115, 131 A.3d 733, 200 Vt. 333, 2015 Vt. LEXIS 96 (Vt. 2015).

Opinions

¶ 1.

Robinson, J.

Plaintiffs Michael Bandler and MB&Co., Ltd. (corporation) bring an interlocutory appeal from the trial court’s ruling that Bandler, a nonattorney, may not represent corporation in this case. He argues that the trial court violated his due-process rights by ruling on the basis of the parties’ respective written submissions on the issue of representation without giving him prior notice of its concerns about his representation so that he could respond “by way of papers [or] argument” before the trial court issued its ruling. We disagree and affirm.

[335]*335¶ 2. Except where otherwise noted, the following facts are undisputed. Bandler is the sole shareholder and president of corporation. In July 2003, Bandler and Michael Bandler & Co., Inc. sued Charter One Bank, raising several claims based on the bank’s alleged failure to honor advertising promises and other representations in connection with a checking account. That case bounced back and forth between judicial and arbitration proceedings, and the plaintiffs’ arbitration demand expanded to include a demand for class-action arbitration. See Bandler v. Charter One Bank, 2012 VT 83, ¶¶ 2-11, 192 Vt. 383, 59 A.3d 157. During the course of the arbitral proceedings, the arbitrator dismissed Bandler’s individual claim and later substituted MB&Co., Ltd. for Michael Bandler & Co., Inc. Id. ¶ 2 n.1.

¶ 3. In December 2012, on behalf of Michael Bandler & Co., Inc., Bandler signed a retainer agreement pursuant to which defendant Cohen Rosenthal & Kramer, LLP (CRK) agreed to “assume representation of Michael Bandler & Company, Inc.” in connection with the class-action arbitration. Whether CRK also assumed any duty to Bandler individually appears to be a point of dispute between the parties. This agreement, and the subsequent course of CRK’s representation, gave rise to the present lawsuit in which Bandler and corporation have sued CRK, alleging fraud in the inducement, breach of contract, legal malpractice, and violation of Vermont’s consumer-protection law.

¶ 4. Before answering plaintiffs’ complaint, CRK filed a motion to dismiss, arguing that Bandler does not meet the criteria for allowing a nonattorney to represent a corporation under Vermont law. In particular, CRK detailed Bandler’s pro se litigation history and pointed to an instance in which a court sanctioned Bandler for a frivolous lawsuit. CRK also referenced this Court’s conclusion that an affidavit submitted by Bandler in an unrelated lawsuit was “too incredible to be believed by reasonable minds.” Bandler v. Majestic Car Rental Grp., Inc., No. 2013-212, 2013 WL 9055946, at *1 (Vt. Dec. 17, 2013) (unpub. mem.), https://www.vermontjudi ciary.org/LC/unpublishedeo.aspx. CRK argued that because of this past history, and because a self-represented litigant is not bound by the ethical rules of attorneys, allowing Bandler to represent corporation would be unduly burdensome to CRK and to the court.

¶ 5. Bandler opposed the motion to dismiss and cross-moved to appear on behalf of corporation. Citing the statutory standard for nonattorney representation of a corporation, 11A V.S.A. § 3.02(1), [336]*336Bandler reviewed his qualifications to represent corporation. He responded to CRK’s claims about the two instances in which courts disparaged his conduct, and attached motion papers written by him in other matters. Bandler suggested that the court consider the motion papers in evaluating his legal skills. Bandler also argued that dismissal would be a draconian remedy because his individual claims would remain even if the court ruled that he could not represent corporation, and corporation should be given the chance to retain counsel in such a situation. Bandler did not request an evidentiary hearing or oral argument.

¶ 6. In reply, CRK responded to Bandler’s factual and legal arguments and argued that Bandler had failed to establish any individual claims against CRK because the retainer agreement was between CRK and corporation.

¶ 7. In its ruling, the trial court began with the statutory exception to the general rule that a corporation must appear through counsel. 11A V.S.A. § 3.02(1). The statute provides that a corporation may appear through a nonattorney representative if: the corporation so authorizes, id. § 3.02(1)(A); the nonattorney representative “demonstrates adequate legal knowledge and skills to represent the organization without unduly burdening the opposing party or the court,” id. § 3.02(1)(B); and the nonattorney representative “shares a common interest with the corporation,” id. § 3.02(1)(C). Focusing on the second factor, the court explained, “there are indeed serious concerns about Mr. Bandler’s ability to present the Corporation’s claims in this case.” The court explained:

While the court acknowledges that Mr. Bandler is the sole shareholder of the Corporation, any claims Mr. Bandler might assert as an individual are distinct from claims asserted by the Corporation, and it is important for the efficient resolution of this case that these claims be kept separate. However, there has already been significant confusion of the issues in the complaint and responsive pleadings, and such confusion is unlikely to be corrected by this court’s admonition.

The court further explained that even though CRK did not represent Bandler individually, interactions between Bandler himself and CRK would likely be central to resolution of this case. For that reason, the court expressed its concern “with the tenor [337]*337of the parties’ colloquy even at this early stage of the case, as well as the intrusion of collateral issues” into Bandler’s filings.

¶ 8. On the basis of these considerations, the trial court concluded that allowing Bandler to represent corporation would be unduly burdensome to the court and CRK. The court denied the motion to dismiss and gave corporation thirty days to obtain counsel. It also noted, “To the extent there is confusion about Mr. Bandler’s individual claims versus the Corporation’s claims, . . . the Plaintiffs’ original complaint did not adequately distinguish between the two entities. In light of this order, the Plaintiffs should amend their complaint to reflect this distinction upon obtaining counsel.” This Court granted Bandler’s motion for permission to take an interlocutory appeal.1

¶ 9. Plaintiffs’ claim on appeal is narrow and procedural. Plaintiffs do not directly challenge the merits of the trial court’s decision.2 Instead, they specifically ask this Court to address only the procedural question of whether they were entitled to “the opportunity to be heard by the [tjrial [cjourt, by way of papers [or] argument, as to the trial court’s concerns about” their complaint and to an opportunity to amend it in response to the court’s concerns. Plaintiffs do not claim a right to an evidentiary hearing. Instead, their argument on appeal seems to be that due process required the trial court to notify plaintiffs of its analysis relating to the pending motions, or its proposed analysis, before issuing its decision so that they would have an opportunity to amend the complaint and to further argue in response to the trial court’s concerns.

¶ 10. Our standard of review of the trial court’s decision not to hold a hearing “is narrow and depends on an affirmative showing that the court abused or withheld its discretion.” In re D.B., 161 Vt.

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2015 VT 115, 131 A.3d 733, 200 Vt. 333, 2015 Vt. LEXIS 96, Counsel Stack Legal Research, https://law.counselstack.com/opinion/michael-bandler-mbco-ltd-aka-michael-bandler-company-v-cohen-vt-2015.