Wright v. State ex rel. Patchin

994 S.W.2d 100, 1999 Mo. App. LEXIS 914, 1999 WL 441961
CourtMissouri Court of Appeals
DecidedJune 29, 1999
DocketNo. 22707
StatusPublished
Cited by2 cases

This text of 994 S.W.2d 100 (Wright v. State ex rel. Patchin) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wright v. State ex rel. Patchin, 994 S.W.2d 100, 1999 Mo. App. LEXIS 914, 1999 WL 441961 (Mo. Ct. App. 1999).

Opinion

KENNETH W. SHRUM, Presiding Judge.

This case requires us to decide whether the trial court committed reversible error when it found that Appellant’s initial pleadings filed in circuit court were a “nullity.” The “nullity” ruling came about because the pleadings were filed by a nonresident lawyer without complying with Missouri’s rules on “Practice by Nonresident Attorneys.” We find no error. We affirm.

An administrative hearing officer for Missouri’s Division of Child Support Enforcement (Agency) issued her “Decision” dated May 31, 1996, that Appellant owed $21,500 in past-due child support. On June 27, 1996, a lawyer who resided in Texas and was licensed there but not in Missouri, filed a petition on behalf of Appellant in the circuit court of Texas County, Missouri. This petition sought judicial review of the Agency’s decision. Appellant’s Texas lawyer also filed a Motion to Stay Execution on the child support order. These pleadings were filed without compli-[101]*101anee with Supreme Court Rule 9.03,1 which governs practice in this state by nonresident attorneys.

On August 1, 1996, sixty-one days after the Agency decision was rendered, attorney Roy E. Williams, Jr., a member of The Missouri Bar, entered his appearance in the case. Later, on September 3, 1996, Attorney Williams filed an amended petition for judicial review.

In June 1997, the Agency moved for an order dismissing Appellant’s case. The Agency cited State ex rel. Mather v. Carnes, 551 S.W.2d 272, 288 (Mo.App.1977), for the proposition that since no attorney licensed in Missouri appeared with the Texas lawyer when he initially filed pleadings for Appellant, Rule 9.03 “suffices without more to nullify” those pleadings. Consequently, the Agency argued, Appellant’s case was subject to dismissal since the initial petition was a nullity and the amended one was “out of time under both Sections 454.475.5 and 536.110.1 RSMo (1994).” The Agency asserted that the cited statutes “require a petition for judicial review of an agency decision to be filed in circuit court within 30 days ‘after the mailing or delivery of the notice of the agency’s final decision.’ ” Continuing, the Agency took the position that the statutory time limits for seeking judicial review were jurisdictional, meaning the only action the trial court could take was to dismiss Appellant’s petition.

The trial court, in apparent agreement with the Agency’s position, found “the original filing in this case to be a nullity and that this Court lacks subject matter jurisdiction to proceed.” Based on these findings, the court sustained the Agency’s motion to dismiss Appellant’s Petition for Judicial Review. This appeal followed.

Appellant’s first point maintains that the trial court “acted contrary to law and abused its discretion” when it relied upon Rule 9.03 and the Carnes ease as authority for dismissal. Appellant insists that two post-conviction motion cases, Jones v. State, 747 S.W.2d 651 (Mo.App.1988), and Stott v. State, 771 S.W.2d 841 (Mo.App.1989), and the “public policy underlying” these cases, mandate a finding that the trial court erred in dismissing Appellant’s case.

Rule 9 deals with practice in Missouri courts by nonresident attorneys. Rule 9.01 prohibits nonresident attorneys from practicing law or doing business in Missouri “except as provided in Rules 9.02, 9.03 and 9.04.”2 Rule 9.03 contains the only exception relevant here:

“Any attorney, whether or not a member of The Missouri Bar, ... who is a member in good standing of the bar of any court of record ... may be permitted to appear and participate in a particular case in any court of this state under the following conditions: The visiting attorney shall file with his initial pleading a statement identifying every court of which he is a member of the bar and certifying that neither he nor any member of his firm is under suspension or disbarment by any such court. The statement shall also designate some member of The Missouri Bar having an office within the State of Missouri as associate counsel. Such designated attorney shall enter his appearance as an attorney of record.”

Rule 9 sheds no light on the effect of noncompliance with its terms. What is the penalty when a nonresident lawyer fails to comply with the filing and formal appearance of local counsel requirements of Rule 9.03, especially when, as here, an opposing party challenges the pleadings filed by the noncomplying litigant?

[102]*102The Carnes case, relied upon by the trial court, answers the question. It holds that failure by a nonresident lawyer to comply with Rule 9.03 renders his actions a nullity as an attorney on behalf of his client.

“We conclude ... that the Motion to Quash submitted on behalf of the defendant in the litigation by an attorney not a member of the Missouri bar and unaccompanied by the appearance of a local counsel violates Rule 9.03 and suffices, without more, to nullify the Motion to Quash Service. 7 C.J.S. Attorney and Client § 16b; McKenzie v. Burris, 255 Ark., 330, 500 S.W.2d 357, 359[1](1973); Niklaus v. Abel Construction Company, 164 Neb. 842, 83 N.W.2d 904, 911[11-12] (1957). That the question of professional qualification to act as counsel for a party to the litigation was not raised by the plaintiff until his appeal and brief does not diminish the power of a court to act, even on judicial notice alone, on a matter so vital to the public protection. Curry v. Dahlberg, 341 Mo. 897, 110 S.W.2d 742, 746[1-3] (banc 1937).”

551 S.W.2d at 288[38] (citations omitted).

The cases cited by Appellant, Jones, 747 S.W.2d 651, and Stott, 771 S.W.2d 841, are situations in which defendants in criminal cases had earlier hired, as their defense lawyers, persons unlicensed in Missouri. Later, in post-conviction proceedings, .the movants challenged their convictions on the theory they were deprived of their constitutional right to effective assistance because they chose lawyers unlicensed in Missouri. They asserted that because they were represented by unlicensed lawyers or nonresident lawyers who did not comply with Rule 9.03, they were, as a matter of law, denied their right to counsel guaranteed by the Constitution. However, the Jones and Stott courts rejected these arguments and specifically refused to adopt a per se rule setting aside a criminal conviction solely because defense counsel was unlicensed or failed to comply with Rule 9.03. They reasoned that neither payment of annual enrollment fees, nor compliance with Rule 9.03, had anything to do with the legal ability of the lawyer to provide effective assistance of counsel. Jones, 747 S.W.2d at 655; Stott, 771 S.W.2d at 843.

Jones and Stott involve constitutional issues raised by persons convicted of crimes about the effectiveness of lawyers they chose themselves, whereas Carnes

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Bluebook (online)
994 S.W.2d 100, 1999 Mo. App. LEXIS 914, 1999 WL 441961, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wright-v-state-ex-rel-patchin-moctapp-1999.