BOBBETT (RICKEY), ET AL. VS. RUSSELLVILLE MOBILE PARK, LLC
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RENDERED: SEPTEMBER 12, 2008; 2:00 P.M.
NOT TO BE PUBLISHED
MODIFIED: OCTOBER 17, 2008; 10:00 A.M.
Commonwealth of Kentucky
Court of Appeals
NO. 2007-CA-000684-DG
RICKEY BOBBETT AND
SANDRA BOBBETT
v.
APPELLANTS
ON DISCRETIONARY REVIEW FROM LOGAN CIRCUIT COURT
HONORABLE TYLER L. GILL, JUDGE
ACTION NO. 06-XX-00003
RUSSELLVILLE MOBILE PARK, LLC
APPELLEE
OPINION
AFFIRMING IN PART AND
REVERSING AND REMANDING IN PART
** ** ** ** **
BEFORE: LAMBERT, MOORE, AND WINE, JUDGES.
MOORE, JUDGE: Rickey and Sandra Bobbett appeal from the Logan Circuit
Court’s order affirming the Logan District Court’s decision to deny a motion to
dismiss a complaint filed by a non-attorney on behalf of Russellville Mobile Park,
LLC. A panel of this Court granted the Bobbetts’ motion for discretionary review.
After a careful review of the record, we affirm the Logan Circuit Court’s order in
part and reverse and remand it in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
In the circuit court’s order, it entered the following findings of fact:
John Rockaway is the manager of Russellville Mobile
Home Park, a Limited Liability Company, solely owned
by Mr. Rockaway and his wife. This Company is in the
business of leasing lots for the placement of mobile
homes. Ricky and Sandra Bobbett own their own mobile
home and entered into a contract (an oral contract
according to the Complaint) to place their mobile home
on the lot owned by Russellville Mobile Home Park.
On October 3, 2006, Mr. Rockaway signed and filed in
the Logan District Court a Forcible Detainer Complaint,
on behalf of Russellville Mobile Home Park, against
Appellants, Ricky and Sandra Bobbett. The Complaint
simply alleged: “Too much traffic/visitors, Violating
park rules.” It was filed on a Court of Justice form AOC
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At the “Court Trial” Mr. Rockaway admitted that he was
not an attorney and had prepared the Complaint. The
District Court denied Appellants[’] oral motion to
dismiss on the grounds that a non-attorney illegally
prepared the Complaint and continued the matter to
October 16, 2007, instructing Mr. Rockaway to obtain
legal representation for the LLC before that hearing. On
October 16, the Appellants filed a written motion to
dismiss on the same grounds.
At the October 16, [sic] hearing, Hon. Randy Epley
appeared on behalf of Russellville Mobile Home Park.
At the conclusion of the hearing, the lower court ruled for
Appellee, ordering eviction within four days. No written
findings were made by the District Court but this is not
claimed as error and it is presumed that findings were
made. The Appellant[s] filed a notice of appeal on
October 20, 2006.
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The circuit court noted two issues were presented: (1) whether Mr.
Rockaway engaged in the unauthorized practice of law; and (2) if yes, then should
the action be dismissed?
The circuit court concluded that Mr. Rockaway engaged in the
unauthorized practice of law when he filed the forcible detainer complaint on
behalf of the LLC. The circuit court next inquired whether Mr. Rockaway’s
actions made the detainer pleading void or merely voidable. Relying on the
foundation that Mr. Rockaway retained counsel at the district court level once the
court discovered that the plaintiff was a LCC1 and that only the LCC would suffer
if dismissal was granted, the circuit court determined that the pleadings were
voidable, not void, and ruled that dismissal was unnecessary.
Despite the circuit court’s determination, it agreed with other
jurisdictions holding that a person is prohibited from representing an entity when
he is the sole owner despite the fact he is likely to be the only person to suffer.
The circuit court ruled there should be a “[prohibition] across the board [for] any
lay representation of a business entity . . . . Hiring an attorney, even for ‘simple
legal matters’ must be part of the price said for the protections of the corporate
veil.”
Despite Mr. Rockaway’s having retained counsel after filing the detainer action in the district
court, Mr. Rockaway argued the matter on behalf of the LLC before the circuit court.
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Thereafter, the court ruled that Mr. Rockaway must not attempt any
further representation of the LCC. The court noted it was a Class B misdemeanor
crime for a non attorney to engage in the practice of law under KRS 524.130.
The issues presented by this appeal are the same as those presented to
the circuit court. No appellee brief was filed.
II. ANALYSIS
A. WHETHER MR. ROCKAWAY ENGAGED IN THE UNAUTHORIZED
PRACTICE OF LAW
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
has noted that
[t]he 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
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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.
Frazee v. Citizens Fidelity Bank & Trust Co., 393 S.W.2d 778, 782 (Ky. 1964), as
modified (1965).
In the present case, although the LLC is owned solely by Mr.
Rockaway and his wife, the LLC is, nevertheless, its own legal entity, and the
mobile home park is owned by the LLC, rather than by Mr. Rockaway and his
wife. Therefore, 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. Frazee, 393
S.W.2d at 782; see also Kentucky State Bar Ass’n v. Tussey, 476 S.W.2d 177, 179
(Ky. 1972). Rather, Mr. Rockaway was acting on the LLC’s behalf when he filed
the forcible detainer complaint.
As noted by the circuit court, the Kentucky Bar Association has issued
an advisory opinion on the subject at hand. In KBA U-38 (May 1983),2 the
Kentucky Bar Association opined that the “manager of rental real estate, who is
not [a] lawyer and does not own the real estate, [cannot] prepare and file a writ of
forcible detainer without engaging in the unauthorized practice of law.” In arriving
at this conclusion, the Kentucky Bar Association stated, inter alia, that “the
application to a District Court for writ of forcible detainer constitutes the
institution of a ‘civil action’ and regardless of the form used or the name otherwise
A copy of KBA U-38 (May 1983) is available at
http://cowgill.com/kba_upl_opinons_questions.html.
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given it, that application constitutes a ‘complaint.’ CR 1 & 2; KRS 383.210. It is a
pleading.” The circuit court cited to a number of other jurisdictions that have held
in accord,3 and we agree with their conclusion. Accordingly, Mr. Rockaway
engaged in the unauthorized practice of law, and the circuit court did not err in its
finding on this issue.
B. WHETHER THE ACTION SHOULD HAVE BEEN DISMISSED
The circuit court ruled that in spite of Mr. Rockaway’s unauthorized
practice of law in filing the detainer pleading, the pleading was voidable rather
than void. This is contrary to Brozonski v. Johnson, 179 S.W.3d. 261 (Ky. App.
2005).
Our Court reviewed Brozonski under CR 11, which was not analyzed
by the court below in this matter. Pursuant to CR 11,
[e]very 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.
Brozonski is somewhat different than the case at hand, but the result
of dismissal must be the same. In Brozonski, an out-of-state attorney signed a
Cincinnati Bar Ass’n v. Clapp, 764 N.E.2d. 1003 (Ohio 2001); In Petition of Eisenberg, 291
N.W.2d. 565 (Wis. 1980); Senna v. City of Wildwood, 23 N.J. Tax 275 (N.J. Tax Ct. 2006);
Disciplinary Counsel v. Kaffle, 843 N.E.2d. 169 (Ohio 2006); Winzer v. EHCA Dunwoody LLC,
627 S.E.2d. 426 (Ga. Ct. App. 2006); Sterling Winchester & Long LLC v. Loyd, 634 S.E.2d. 188
(Ga. Ct. App. 2006); Carlo LLC v. Yorro, 761 N.Y.S.2d. 766 (N.Y. Dist. Ct. 2002); see also
Martinez v. Roscoe, 33 P.3d. 887 (N.M. 2001); Lexis-Nexis v. Travishan Corp., 573 S.E.2d. 547
(N.C. 2002).
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complaint although he had not yet been granted pro hac vice status. Defendants
moved to dismiss the complaint pursuant to SCR 3.030(2)4 and CR 11. The court
granted the motion dismissing the action with prejudice. Our Court on review,
relying on CR 11 held that:
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. . . .
Id. (notes and citations omitted).
Thus, according to CR 11 and Brozonski, the district court in the case
at bar should have stricken the complaint, dismissed the action and ended the
lawsuit.
Further buttressing our conclusion is the practice of our Court in
refusing to accept pleadings filed by non-attorneys. See, e.g., Wright v. Kentucky
Bar Association, 169 S.W.3d 858, 859 (Ky. 2005) (discussing Kentucky Court of
Appeals’ actions concerning unauthorized pleading in the case). And the Supreme
Court has stricken motions not properly signed under CR 11. See, eg., Brey v.
Commonwealth, 917 S.W.2d 558 (Ky. 1996).
Accordingly, the order of the Logan Circuit Court is affirmed in part
concerning the issue of whether Mr. Rockaway engaged in the unauthorized
4
This rule governs the practice of law in Kentucky for out-of-state attorneys.
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practice of law. It is reversed and remanded in part with the instruction that the
action should be remanded to the Logan District Court for dismissal.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Alicia C. Johnson
Russellville, Kentucky
N/A
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