The Department initially explains that Indiana does not require limited liability companies to be represented by counsel in court, in contrast to corporations. (See Resp’t Mem. Supp. Mot. Dismiss (hereinafter “Resp’t Mem.”) at 1-6.) Accordingly, the Department invites the Court to create such a rule as a matter of first impression in this state. (See, e.g., Hr’g Tr. at 4-5.) The Department then asks the Court to dismiss this case because Wireless Advocates, a limited liability company, could not initiate this appeal itself; Gaisser, as a non-attorney, could not initiate this appeal on Wireless Advocates’s behalf; and Gaisser engaged in the unauthorized practice of law by signing and filing the Verified Petition and Notice of Appearance. (See Resp’t Mem. at 7-9.) The Court declines to invent such a rule where one does not currently exist. Thus, the Court consolidates the Department’s several issues into the one dispositive issue: whether dismissal is the proper remedy in this case.
When a corporation prosecutes or defends its case pro se and its opponent contests such representation, Indiana courts generally have given the corporation an opportunity to retain counsel, which the corporation must refuse before dismissing the action. See, e.g., State ex. rel. Western Parks v. Bartholomew Cnty. Ct., 383 N.E.2d 290, 292-93 (Ind. 1978) (prohibiting a court from exercising its jurisdiction until the plaintiff-corporation obtained counsel). Indeed, the Indiana Court of Appeals has explained that a “corporate litigant must be given a fair opportunity to correct its error and retain competent counsel before dismissal would be appropriate.” Christian Bus. Phone Book, Inc. v. Indianapolis Jewish Cmty. Relations Council, 576 N.E.2d 1276, 1277 (Ind. Ct. App. 1991). Furthermore, over twenty years ago this Court noted that while an appeal initiated by a non-attorney on a corporation’s behalf is procedurally defective, the defect is curable. Sherry Designs, Inc. v. State Bd. of Tax Comm’rs, 589 N.E.2d 285, 285 n.1 (Ind. Tax Ct. 1992).
The Department maintains, however, that dismissal is the appropriate remedy in this case because both the Clerk of the Court and a certified public accountant advised Wireless Advocates and Gaisser to consult with an attorney before filing this appeal, providing both notice that counsel would be required and a fair opportunity to retain counsel before doing so. (See Hr’g Tr. at 6-7; Resp’t Mem. at 9-10.) Despite this warning, the Department argues that Gaisser purposefully acted as Wireless Advocates’s attorney by filing the Verified Petition, a legal memorandum (i.e., the three-page letter), and the Notice of Appearance in “an attempt to game the system and get additional time to hire an attorney.” (See Hr’g Tr. at 13-16; Resp’t Mem. at 8-11.) Therefore, the Department concludes that Wireless Advocates is not deserving of the equitable result of being allowed to cure its procedural mistake. Moreover, the Department claims an equitable result is not imperative in this case because Wireless Advocates had an opportunity to be heard when its refund claim was reviewed by the Department during the administrative process. (See Hr’g Tr. at 9-10, 16 (citing Simmons v. Carter, 576 N.E.2d 1278 (Ind. Ct. App. 1991); Christian Bus. Phone Book,
“Dismissal is a remedy which is not favored in this state because ‘in our system of justice the opportunity to be heard is a litigant’s most precious right and should be sparingly denied.’” Christian Bus. Phone Book, 576 N.E.2d at 1277 (citation omitted). Wireless Advocates’s petition reveals nothing to defeat an equitable result – there is no evidence of undue delay, bad faith, or dilatory motive on either Wireless Advocates’s or Gaisser’s part in obtaining counsel. Instead, Wireless Advocates obtained counsel of its own volition just nine days, excluding both weekends and recognized holidays, after the Department filed its Motion. Moreover, the administrative review of Wireless Advocates’s refund claim is not a substitute for its right to be heard in this Court, which has a statutory duty to review the Department’s denial of refund claims de novo. See Indiana Dep’t of Revenue v. Miller Brewing Co., No. 49S10-1203-TA-136, 2012 WL 3043163, at *3 (Ind. 2012); IND. CODE § 6-8.1-9-1(d) (2012). Therefore, the Court finds that Wireless Advocate’s petition does not deserve the terminal result of dismissal. Accordingly, the Department’s Motion is DENIED, and the Court ORDERS the Department to file its Answer within thirty (30) days of the date of this Order.
http://www.in.gov/judiciary/opinions/pdf/08171201mbw.pdf
