# FILED

April 7, 1999 Cecil Crowson, Jr. Appellate Cou rt Clerk DOYLE SHIRT MANUFACTURING ) CORP., ) ) Plaintiff/Appell

ant, ) Appeal No.

) 01-A-01-9711-CH-00670 v. ) ) Putnam Chancery T. MICHAEL O'MARA, et al, ) No. 96-409 ) Defendants/Appel

lees. )

)

COURT OF APPEALS OF TENNESSEE

APPEAL FROM THE CHANCERY COURT FOR PUTNAM COUNTY

AT COOKEVILLE, TENNESSEE
THE HONORABLE VERNON NEAL, CHANCELLOR

SAMUEL J. HARRIS P. O. Box 873 Cookeville, Tenne ssee 38503 ATTORNEY FOR PLAINTIFF/APPELLANT

TOM CORTS P. O. Box 198985 Nashville, Tennessee 37219-8985 ATTORNEY FOR DEFENDANTS/APPELLEES

AFFIRMED AND REMANDED

WALTER W. BUSSART, SPECIAL JUDGE-2- 

# OPINION

This appeal involves the requirement of Tennessee Rule o f C ivil Procedure 11.01 that pleadings be signed by an attorney or by a party

if that party is not represented by

an attorney. Finding that the plaint iff did not compl

y with Rule 11 within the statutory period of limita

tions, the Putnam County Chancery Court granted summ

ary judgm ent to the defendant. We affirm the decision of the trial court.

I. The fact s are not in dispute. On October 23, 199 6, Doyle Shir t Manufacturing

Corporatio n ("Doy le") filed a complaint against T. Michael O'Mara alleging attorney malpractice for Mr. O'Mara' s alleged failure to file a timely adversar y proce eding in a bankruptcy case on behalf of D

oyle. The president of Doyle, Robert Roggen, who is not an at tor ney, signed this complaint. On November 5, 1996, Mr. O'Mara filed an answer to D oyle's complaint

asserting the following affirmative defense: "Complaint is void in as muchas the Complain

t has not been si gned by an a ttorney and a co

rporation cannot proceed pro se." The first e vidence of Doyl

e's attorney' s presence in these proceed ings was on Decem ber 20, 1996 when this

attorney filed

a notice of appearance and a m

otion to amend the

complaint.

Mr. O'Mara move

d for summa

ry judgme

nton the grounds that Doyle's complaint

was "void because

it was not signed by an attorneyand the statute of limitations

for bringing a

complaint had now run." In Mr. O'Mara 's supporting affidavit, he stated thatDoyle had agre ed with his recom

mendation not

to file the adversary proceeding. Neverthel ess, Mr. O'Ma ra claims that

on October 23, 1995, he sent by facsi

mile a letter

to Doyle with t

he information that

he had not filed an adversary p

roc eeding. The next day, on October 24, Mr. O'Mara received a letter from

Joan Ranney of D

oyle which ackn

owledged receipt o

f the October 23 letter and stated that Mr. O'Mar a's "failure to [

take the above action] has forever barred the corporation from the possibility of recovering the losses incurred by [the] embezzlem ent." Therefore, it is Mr. O'Mara's positi on that, as of October 24, 1995,

Doyle kne

w that Mr. O'Mara had not filed the adversary-3-

proceeding

and thus Doyle' s cause of action had accrued. Since Doyle failed to file a valid complai

nt signed by an atto

rney within one year from the accrual of its action on October

24, 1995, the com

plaint was properly

dismissed.

Joan Ranney's affidavit was filed as an exhibit to Doy le's mem orandum opposing summary judgm ent. Ms. Ranney claims that as the secretary for Robert Roggen, she was directed to obtain legal counsel to pursue Doyle's claim against Mr. O'Mara. She stated that both s he and Mr. Roggen w

ere unaware tha

t th e complaint

had to be signed by a

n attorney. Ms . Ranney m aintains that she m

ade
e very effort to obtain cou nsel from her h

ome or office

in Las Vegas,

Nevad a b efore October 24, 1996. However, she was unsuccessful as attorneys were unwilling to take the case due to the nature of the case as well as the ir friendship withMr. O'Mara.She stated th at Doyle r etained its present attorney on November 22, 1996.

The trial court granted summary judgm ent to Mr. O'Mara stating that his motion was well taken. On appe al, Doyle presents one iss ue for our review: Whether a complaint alleging attorney malpractice, which was sig ned only by the non- lawyer presi

dent of a corporate plaintiff, and where said plaintiff was unable to obtain legal counsel before the expira tion of the statute of

limitations, may be amend

ed so as to relate back as a timely filed pleading? The essence of Doyle's ar gument on appeal is that this court should reconsider
or distinguish the Tennessee S upr eme Court's ho lding in Old Hickory Engineering and Ma

chine Co. v. H

enry , 937 S.W.2d 782 (Tenn.1996 ).

II. In Old Hickory , the court held "tha t a corporation cann

ot act pro se in
a court proceeding nor

can it be represented by an officer or other non-lawyer agent." Id. at786. As in our case, the Old Hickory complaint had been signed and filed by the non-lawyer president of the plai ntiff corporation. The court stated that "[t]he plai

ntiff's insistence , that the signing of t he complaint by

its president constitute s compli ance with Rule 11's provision that a pleading may be signed by

the party, is n

ot consistent with poli

cy or precede

nt. A corporation-4-

is an artificial entity, which 'cannot act or speak except thro

ugh natural persons dul y author ized.'" Id. at 785 (quoting Great Am. Indem. Co. v. U tility Contractors, Inc. , 21 Tenn. App. 463, 471, 111 S.W .2d 901 , 907 (1 937)). To hold otherwise would pe rmit the corpor

ation's president to enga ge in the unauthorized practice of law. See Tenn. Sup. Ct. R. 7, § 1.01. In explaining the policy considera

tions behind its decision , the court cited cases noting the skill, training, character, supervision an d discipline that is nec essary for and

should accompany

the practice of law. Old Hickory , 93 7 S. W.2d at 785-86 (c iting Third Nat'l Bank v. Celebrate Yourself Prod'ns, Inc. , 807 S.W.2d 704, 706-07 (Tenn.App.1990)

and Nicollet Restoratio

n, Inc. v. Tu

rnham , 486 N.W.2d

753, 754 (Minn.1992)).

In the instant case, the e

vidence establishes and Doyle does not dispute that it knew about its cause

of action on October

24, 1995 when it sent

a fax to Mr. O'Mara s tat ing that his conduct had " forever barred" Doyle from a certain legal remedy. The s tatute of limitations for attorney mal-practice is one y ear from the date of accrual.Tenn. Code Ann.§ 28-3-104(a)(2) (Supp.1998 )

. Therefore, the issue is whether Doyle's filin

g on October 25, 1996

or its Motion to Amend its Com

plaint on Decem

ber 20, 1996 sati sfi ed the requirem ents of Rule 11. In light of the c

lear holding of

the supreme co

urt in Old Hickory which
was based upon very similar facts, we find that Doyle 's complaint sig ned by its non-attorney corporat e president was inadeq uate.

In addition, we dec line D oyle's invi tatio n to re cons ider t he Sup reme Court's ruling. The Court of Appeals is an intermediate a ppellatecourt whose duty is to "apply the la

w as promul gated by the legis lature or as announc

ed by the Supre me Court. This Court is bound by

the Supreme Court's decisions under the doctrine of stare d

ecisis and in no wa y is it the functi on of this court to intentionally

reverse the holding

of the Supreme Court." Hollingsworth v. Safeco Ins. Co. , 782 S.W.2d 477, 479-80 (Te nn.App.1988).
We must next address the issue of whether Doyle's attem pt to correct its filing brought its com

plaint within Rule 11 c

ompliance. I

n Old Hickory , the courtcited the following am endment to Rule 1 1 as "declarative o f the policy and-5-

practice regulating court proceedings in that particular": "An
un si gned paper shall be stricken unless omission of the signature is corrected promptly after being calle

d to the attention of the

att orn ey or party." Tenn. R. Civ. P. 11.01. The principle of this amendment me an s that " the status of [a] complaint

[signed by a non-attorne

y corporate pr

esident] on

the date it was filed
was as though it contained no signature, and, because of that deficiency, it was subject to being stricken from the record." Old Hickory , 937 S.W.2d a t 786. The Old Hickory court stated that " [t] he construction m ost favorable to the plaintiff in this case is that the plaintiff was notified of the fata l deficiency in

the complaint

by the defendant' s motion to dism iss on April 13, 1994,

and the plaintiff took no action

until its attorney fi

led a notice of appea

rance on May 20, 1994." Id. The court found that this was "not 'prompt' action." Id.

In the caseat bar, viewing the evidence in a light most favorable t o Doyle, it was notified of the complaint's deficiency on November 5, 1996, when Mr. O'Mara filed an a

nswer to Doyle 's complaint ar guing as an affirm

ative def ense that the compla

int was void because

it had not been signe

d by a n attorney and a corporation cannot proceed pro se. While Ms. Ranney states that Doyle's attorney was r

etained by Nove

mber 22, 1996,

the fir st acti on taken by this attorney was on December 20, 199 6, when he filed a notice of appearance and a mot ion to amend the complaint.The particular f acts in Old Hickory are instructive. There, the court found that a 37-day delay was not "prompt action." In light of the court's conclusion , we can not say that t he 45-day delay

in the instant case was "pro mpt action."
Doyle insists tha

t the facts of this case

are distinguishable f

rom those in Old Hickory due to the particular nature of an attorney malpractice action. In Doyle's words, the significance of the dist incti on ari ses fr om a situation "where the reality of the legal marketplace makes it exceedingly difficult to obtain legal counsel." Under the statute, Doyle had one y ear to find an attorne y. We recognize that this task ma y have required some effort especially since the search
was made from Doyle's office in Nevada. However, we a re convinced that one year was a reasonable

amount of tim

e in whic h Doyle co uld have found and retained an attorney.-6- III. Finally we a ddress Mr. O'Ma

ra's contention that

this is a frivolous appeal b ecause the facts h ere are so sim

ilar to those in Old Hickory . Sec tio n 27-1-122 of the Tennessee Code allows this court to award damages for th e prosecution

of a frivolous

appeal. "A frivolous appea l is one that is 'devoid

of merit,' Combustion Engine ering, Inc. v. Kennedy , 562 S.W.2d 202 (Tenn. 1978) , or one in which there is

little prospect that it can ever succeed." See Industrial Dev. Bd. of Tu llahoma v. Hancock , 901 S.W.2d 382 , 385 (Tenn.App. 1995) (citing B lack's Law Diction ary , 601(5th Ed.1979)). While the facts are very similar, they

are not identical.We find that this a ppeal is not frivolous.

IV. In conclusion, we affirm

the trial court's g

rant of summ

ary judgm ent to the defendant below,

Mr. O'Mara.We find that the c omplaint filed by

Doyle on October 23, 1996 was inadequa

te under Rule 11, T

enn. R. Civ. P., and under the
case of Old Hickory Engine ering and Machine C

o. v. Henry , 937 S.W.2d

782 (Tenn.1996). Furthermore, we find that Doyle 's motion to am end its complaint 45 days after

being notified of the complain t's defect did not co

nstitute prompt actionin light of the court' s holding in Old Hickory

. While we do not find that Doyle's appeal was frivol ous, it is our opinion that the costs of appeal should be taxed to Doyle.

_______ _ ______________________ _ WALTER W. BUS SART, SPECIAL JUDG E

CONCUR:

______________________________________ HENRY F. TODD, PRE

S. JUDGE, M.S.

______________________________________ WILLIA M C. KOCH, JR., JUDGE