Smith v. Rustic Home Builders, LLC
826 N.W.2d 357
S.D.2013Background
- Smiths obtained a default judgment against Rustic Home Builders, LLC for $174,963.01 in 2007.
- Rustic and Jay Driesen moved to set aside the default judgment; the motion was denied.
- In 2012, partial satisfaction of judgment was entered after seizure of logs; $45,377.52 acknowledged.
- April 2012 order dismissed claims against Driesen arising from piercing the corporate veil with prejudice; other claims dismissed with prejudice.
- October 25, 2012, Driesen, individually and on behalf of Rustic, filed a notice of appeal asserting multiple 2007 and 2012 orders.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the appeal | Driesen and Rustic seek review of several orders despite time limits. | Appeal timeliness is proper for the September 18, 2012 order. | Untimely for three 2007 orders; timely for September 2012 order (partial satisfaction). |
| Representation of a non-attorney LLC owner on appeal | Driesen can represent Rustic pro se as manager. | LLC must be represented by licensed attorney; Driesen cannot represent Rustic pro se. | LLC must be represented by counsel; Driesen's Rustic appeal dismissed. |
| Aggrieved party status to appeal | Driesen individually is aggrieved by the September 2012 order. | Dismissed claims against Driesen strip him of aggrieved status. | Driesen is not an aggrieved party; cannot appeal the September 2012 order. |
Key Cases Cited
- Sunflour R.R., Inc. v. Paulson, 670 N.W.2d 518 (S.D. 2003) (LLC must be represented by counsel)
- United States v. Hagerman, 545 F.3d 579 (7th Cir. 2008) (LLCs treated like corporations for representation)
- Rowland v. California Men's Colony, 506 U.S. 194 (U.S. 1993) (corporations appear only through licensed counsel)
- Lattanzio v. COMTA, 481 F.3d 137 (2d Cir. 2007) (sole member LLC must be represented by counsel)
- H & H Dev., LLC v. Ramlow, 272 P.3d 657 (Mont. 2012) (LLCs must be represented by a lawyer)