TO: Joint Procedure Committee
FROM: Mike Hagburg
RE: Rule 10.2, N.D.R.Ct., Smalls Claims Court
The North Dakota Supreme Court recently issued an opinion in Wetzel v. Schlenvogt, 2005 ND 190, 705 N.W.2d 836. The case involved an altercation that took place at a Cenex station. The station's manager, acting without an attorney but on behalf of Cenex, petitioned for a disorderly conduct restraining order after the incident. Ruling on an appeal challenging the validity of the restraining order, the Supreme Court held: "when a case is commenced on behalf of a corporation by an non-attorney agent, the case and all documents signed by the non-attorney agent are void from the beginning."
Wetzel involved a case in district court, but its result raises question about corporate participation in actions under the Small Claims Court Act, N.D.C.C. ch. 27-08. Actions in small claims court are commenced when "any person" files a claim affidavit. N.D.C.C. § 27-08.1-02. Informal proceedings are contemplated and under N.D.C.C. § 27-08.1-03, "the plaintiff and the defendant may appear without counsel."
The rule that corporations may only appear in court through counsel grows out the common law and is not founded on a procedural rule or statute. See United Accounts, Inc. v. Televantage, 499 N.W.2d 115 (N.D. 1993). Under N.D.C.C. § 1-01-06, "there is no common law in any case where the law is declared by the code." Because the code allows "any person" to commence a small claims court action and to appear in small claims court without counsel, the Court's decision in Wetzel may not cause any changes in how corporate pleadings and appearances are handled in small claims court.
Most matters relating to pleadings and appearances, however, are procedural matters. Because the Supreme Court is the final authority on procedure in North Dakota's courts, a rule change may be needed to ensure that corporations can continue to appear in small claims court without attorneys (if this is desired). There is no existing rule on small claims court procedureinstead, the procedure is set out in N.D.C.C. ch. 27-08. Therefore, staff has drafted together a proposed new rule that covers appearances in small claims court.
The draft rule proposal is attached. It is patterned on subdivision (c) of Minn.Gen.Prac.R. 512, which is also attached. The Committee may wish to discuss whether more should be said in the draft rule about corporate pleadings. Use of the term "a small claims court action" in the subdivision on corporate representation is intended to convey the point that a corporation may be represented by the listed natural persons at any phase of the action.
Minnesota devotes an entire chapter of its General Practice Rules to conciliation court procedureRule 512 covers only trial procedure. The Committee may wish to discuss whether North Dakota should develop procedural rules for small claims court above and beyond the rule proposed.