Date: 10-24-2015

Case Style: Michael Bandler, MB&Co, Ltd. a/k/a Michael Bandler & Company v. Cohen Rosenthal & Kramer, LLP

Case Number: 2015 VT 115

Judge: Beth Robinson

Court: Vermont Supreme Court

Plaintiff's Attorney: Ryan Smith

Defendant's Attorney: Allan R. Keyes

Description: Plaintiffs Michael Bandler and MB&Co, Ltd. (“corporation”)
bring an interlocutory appeal from the trial court’s ruling that Bandler, a nonattorney, may not
represent corporation in this case. He argues that the trial court violated his due-process rights
by ruling on the basis of the parties’ respective written submissions on the issue of representation
without giving him prior notice of its concerns about his representation so that he could respond
“by way of papers [or] argument” before the trial court issued its ruling. We disagree and affirm.
¶ 2. Except where otherwise noted, the following facts are undisputed. Bandler is the
sole shareholder and president of corporation. In July 2003, Bandler and Michael Bandler &
Co., Inc. sued Charter One Bank, raising several claims based on the bank’s alleged failure to
honor advertising promises and other representations in connection with a checking account.
That case bounced back and forth between judicial and arbitration proceedings, and the
plaintiffs’ arbitration demand expanded to include a demand for class-action arbitration. See
Bandler v. Charter One Bank, 2012 VT 83, ¶¶ 2-11, 192 Vt. 383, 59 A.3d 157. During the
course of the arbitral proceedings, the arbitrator dismissed Bandler’s individual claim and later
substituted MB&Co., Ltd. for Michael Bandler & Co., Inc. Id. ¶ 2 n.1.
¶ 3. In December 2012, on behalf of Michael Bandler & Co., Inc., Bandler signed a
retainer agreement pursuant to which defendant Cohen Rosenthal & Kramer LLP (CRK) agreed
to “assume representation of Michael Bandler & Company, Inc.” in connection with the class-
action arbitration. Whether CRK also assumed any duty to Bandler individually appears to be a
point of dispute between the parties. This agreement, and the subsequent course of CRK’s
representation, gave rise to the present lawsuit in which Bandler and corporation have sued CRK,
alleging fraud in the inducement, breach of contract, legal malpractice, and violation of
Vermont’s consumer-protection law.
¶ 4. Before answering plaintiffs’ complaint, CRK filed a motion to dismiss, arguing
that Bandler does not meet the criteria for allowing a nonattorney to represent a corporation
under Vermont law. In particular, CRK detailed Bandler’s pro se litigation history and pointed
to an instance in which a court sanctioned Bandler for a frivolous lawsuit. CRK also referenced
this Court’s conclusion that an affidavit submitted by Bandler in an unrelated lawsuit was “too
incredible to be believed by reasonable minds.” Bandler v. Majestic Car Rental Grp., Inc., No.
2013-212, 2013 WL 9055946, at *1 (Vt. Dec. 17, 2013) (unpub. mem.),
https://www.vermontjudiciary.org/LC/unpublishedeo.aspx. CRK argued that because of this past
history, and because a self-represented litigant is not bound by the ethical rules of attorneys,
allowing Bandler to represent corporation would be unduly burdensome to CRK and to the court.

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¶ 5. Bandler opposed the motion to dismiss and cross-moved to appear on behalf of
corporation. Citing the statutory standard for nonattorney representation of a corporation, 11A
V.S.A. § 3.02(1), Bandler reviewed his qualifications to represent corporation. He responded to
CRK’s claims about the two instances in which courts disparaged his conduct, and attached
motion papers written by him in other matters. Bandler suggested that the court consider the
motion papers in evaluating his legal skills. Bandler also argued that dismissal would be a
draconian remedy because his individual claims would remain even if the court ruled that he
could not represent corporation, and corporation should be given the chance to retain counsel in
such a situation. Bandler did not request an evidentiary hearing or oral argument.
¶ 6. In reply, CRK responded to Bandler’s factual and legal arguments and argued that
Bandler had failed to establish any individual claims against CRK because the retainer
agreement was between CRK and corporation.
¶ 7. In its ruling, the trial court began with the statutory exception to the general rule
that a corporation must appear through counsel. 11A V.S.A. § 3.02(1). The statute provides that
a corporation may appear through a nonattorney representative if: the corporation so authorizes,
id. § 3.02(1)(A); the nonattorney representative “demonstrates adequate legal knowledge and
skills to represent the organization without unduly burdening the opposing party or the court,” id.
§ 3.02(1)(B); and the nonattorney representative “shares a common interest with the
corporation,” id. § 3.02(1)(C). Focusing on the second factor, the court explained, “there are
indeed serious concerns about Mr. Bandler’s ability to present the Corporation’s claims in this
case.” The court explained,
While the court acknowledges that Mr. Bandler is the sole shareholder of the Corporation, any claims Mr. Bandler might assert as an individual are distinct from claims asserted by the Corporation, and it is important for the efficient resolution of this case that these claims be kept separate. However, there has already been significant confusion of the issues in the complaint

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and responsive pleadings, and such confusion is unlikely to be corrected by this court’s admonition.
The court further explained that even though CRK did not represent Bandler individually,
interactions between Bandler himself and CRK would likely be central to resolution of this case.
For that reason, the court expressed its concern “with the tenor of the parties’ colloquy even at
this early stage of the case, as well as the intrusion of collateral issues” into Bandler’s filings.
¶ 8. On the basis of these considerations, the trial court concluded that allowing
Bandler to represent corporation would be unduly burdensome to the court and CRK. The court
denied the motion to dismiss and gave corporation thirty days to obtain counsel. It also noted,
“To the extent there is confusion about Mr. Bandler’s individual claims versus the Corporation’s
claims, . . . the Plaintiffs’ original complaint did not adequately distinguish between the two
entities. In light of this order, the Plaintiffs should amend their complaint to reflect this
distinction upon obtaining counsel.” This Court granted Bandler’s motion for permission to take
an interlocutory appeal.1
¶ 9. Plaintiffs’ claim on appeal is narrow and procedural. Plaintiffs do not directly
challenge the merits of the trial court’s decision.2 Instead, they specifically ask this Court to
address only the procedural question of whether they were entitled to “the opportunity to be
heard by the [t]rial [c]ourt, by way of papers [or] argument, as to the trial court’s concerns
about” their complaint and to an opportunity to amend it in response to the court’s concerns.
Plaintiffs do not claim a right to an evidentiary hearing. Instead, their argument on appeal seems
1 This Court’s entry order granting permission to appeal cites Vermont Rule of Appellate Procedure 5(b). However, Rule 5.1, allowing for interlocutory review of collateral final orders in specified circumstances, is more squarely applicable. See, e.g., Vt. Agency of Natural Res. v. Upper Valley Reg’l Landfill Corp., 159 Vt. 454, 455, 621 A.2d 225, 226-27 (1992) (noting that pursuant to Rule 5.1, this Court granted interlocutory appeal of trial court’s order requiring intervenor organization to appear through counsel).
2 Accordingly, we do not reach the question of whether the trial court’s decision was an abuse of discretion on the merits.

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to be that due process required the trial court to notify plaintiffs of its analysis relating to the
pending motions, or its proposed analysis, before issuing its decision so that they would have an
opportunity to amend the complaint and to further argue in response to the trial court’s concerns.
¶ 10. Our standard of review of the trial court’s decision not to hold a hearing “is
narrow and depends on an affirmative showing that the court abused or withheld its discretion.”
In re D.B., 161 Vt. 217, 222, 635 A.2d 1207, 1210-11 (1993).
¶ 11. Plaintiffs have cited no statute or rule that entitles them to argument concerning
the trial court’s considerations on the pending motions prior to the trial court’s issuance of its
decision. As noted above, plaintiffs are not arguing that they were entitled to an evidentiary
hearing.3 The Vermont Rules of Civil Procedure give the trial court discretion in deciding
whether to hear argument. See V.R.C.P. 78(b)(2) (“In any case, the court may decline to hear
oral argument and may dispose of the motion without argument.”); Shaw v. Barnes, 166 Vt. 610,
610, 693 A.2d 710, 711 (1997) (mem.) (holding that civil rules give court discretion to decline
oral argument on motions in all cases).
¶ 12. The trial court acted within its discretion in deciding the pending motions without
a hearing or argument and without soliciting further written argument from plaintiffs. Plaintiffs
did not request argument in their motions. The notion that a court is obligated to lay out its
decisionmaking process for the parties before it actually issues a decision, giving them an
opportunity to respond to the court’s perspective, is unprecedented. Moreover, in this case the
court did exactly what plaintiffs had invited the court to do: it analyzed the pleadings and motion
papers authored by Bandler in assessing whether allowing Bandler to represent the corporation
would be unduly burdensome. To the extent that plaintiffs argue on appeal that they should have
3 Even if plaintiffs now argued that they were entitled to an evidentiary hearing, they did not comply with Vermont Rule of Civil Procedure 7(b)(4) in the trial court. That rule states that pursuant to Rule 78(b), “[t]he request for an opportunity to present evidence shall include a statement of the evidence which the party wishes to offer.” V.R.C.P. 7(b)(4).

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been given an opportunity to amend the complaint before the court’s decision, they miss the
point of the court’s analysis. The court gave plaintiffs an opportunity to amend the complaint in
response to its guidance, but the fact that plaintiffs required such guidance in the first place was
one of several factors the court relied on in determining that allowing Bandler to represent
corporation would be unduly burdensome.
¶ 13. Nor did the court’s actions violate plaintiffs’ rights to constitutional due process.
Due process does not require a trial court to notify parties in advance of its analysis as to their
motions, or give parties an opportunity to make contrary arguments before issuing its ruling.
“[T]he fundamental requirement of due process is the opportunity to be heard at a meaningful
time and in a meaningful manner.” Brock v. Roadway Express, Inc., 481 U.S. 252, 261 (1987)
(quotation omitted); accord Stone v. Town of Irasburg, 2014 VT 43, ¶ 27, 196 Vt. 356, 98 A.3d
769. “[T]he required procedures may vary according to the interests at stake in a particular
context.” Stone, 2014 VT 43, ¶ 27 (quotation omitted); see also id. ¶ 32 (enumerating three
factors in procedural due-process analysis). “ ‘Due process is flexible and calls for such
procedural protections as the particular situation demands.’ ” Mathews v. Eldridge, 424 U.S.
319, 321 (1976) (brackets omitted) (quoting Morrissey v. Brewer, 408 U.S. 471, 481 (1972)).
¶ 14. In this case, plaintiffs had notice of CRK’s motion and arguments and filed a
motion of their own. They were well aware of the applicable legal standard in 11A V.S.A.
§ 3.02 and that Bandler’s ability to represent corporation without undue burden to the court or
parties was the central issue before the court. They did not request a hearing. They had an
opportunity to and did file arguments with the court concerning the pending motions. And if, as
plaintiffs imply, the trial court relied on considerations that had not been explicitly articulated in
the parties’ motion papers, and misapprehended the facts or law in doing so, plaintiffs were free
to file a Vermont Rule of Civil Procedure 59 motion with the trial court laying out their
concerns. See, e.g., Upper Valley Reg’l Landfill Corp., 159 Vt. at 455, 621 A.2d at 226
(describing how organization required by trial court to retain counsel filed motion to reconsider
in trial court, as well as motion for permission to appeal collateral final order under Appellate
Rule 5.1); see also Fagnant v. Foss, 2013 VT 16A, ¶ 7, 194 Vt. 405, 82 A.3d 570 (per curiam)
(“[O]ur settled law [is] that a motion for reconsideration is treated as a [Vermont Rule of Civil
Procedure] 59 motion if its content and timing indicate that it was, for all intents and purposes,
such a motion.”).

Outcome: Under these circumstances, there is no colorable claim of a due process
violation in the court’s issuance of a decision without prior notice and opportunity for further argument by the parties. For these reasons, we affirm the trial court’s ruling. To the extent that Bandler has individual claims against CRK, he is free to represent himself without counsel.
Affirmed.

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