                                  NO. 07-10-0375-CV

                              IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL A

                                  NOVEMBER 1, 2010

                         ______________________________


             IN RE: JAMES CRAIG GUETERSLOH, INDIVIDUALLY AND
   JAMES CRAIG GUETERSLOH, TRUSTEE OF THE 1984 GUETERSLOH TRUST

                       _________________________________

                               ORIGINAL PROCEEDING
                    ON APPLICATION FOR WRIT OF MANDAMUS
                         _______________________________

Before CAMPBELL and HANCOCK and PIRTLE, JJ.


                                        OPINION


      The novel issue presented by this mandamus proceeding is whether a trustee of

a trust has the same right to represent himself in his representative capacity as he does

in his individual capacity.   We hold that he does not, strike his petition for writ of

mandamus as it pertains to claims being asserted in his capacity as trustee, but

conditionally grant his petition as it pertains to claims being asserted in his individual

capacity.
                                              Background


        This mandamus proceeding relates to an underlying proceeding pending in the

121st District Court, Terry County, wherein the Real Parties in Interest, Michael

Guetersloh, Jr., Denise Foster (formerly Denise Guetersloh Spicer), and Michael

Guetersloh, III, each acting pro se, filed suit seeking (1) termination of the 1984

Guetersloh Trust, (2) distribution of trust property, and (3) an accounting of all income

and distributions from the trust. The 1984 Guetersloh Trust is an express family trust

created for the benefit of four named individuals, the three Real Parties in Interest and

one of the Relators, James Craig Guetersloh. In addition to naming the Relator in his

individual capacity as a party,1 the petition named the other Relator, James Craig

Guetersloh, Trustee of the 1984 Guetersloh Trust, as a party.2


        On August 26, 2010, Relators, each acting pro se, filed an original answer,

comprised of a general denial and affirmative defenses, coupled with a Motion to

Transfer Venue based on provisions of the Texas Property Code. See Tex. Prop. Code

Ann. § 115.002(b)(1) (Vernon 2007). That same day, acting sua sponte, the trial court

found that the trustee of a trust cannot appear in court pro se because to do so would

amount to the unauthorized practice of law. Accordingly, the trial court notified Relators

that no action would be taken on their motion to transfer venue until such time as the

1
 A beneficiary designated by name in the instrument creating the trust is a necessary party in a suit under
Section 115.001 of the Texas Property Code. Tex. Prop. Code Ann. § 115.011(b)(2) (Vernon 2007).
2
 Although the Texas Trust Code does not expressly require the joinder of the trustee as a necessary party
in every suit pertaining to a trust, the trustee's presence is required in any suit requiring an accounting by
the trustee. See Tex. R. Civ. P. 39; Tex. Prop. Code Ann. § 115.001(a)(9) (Vernon 2007).
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trustee obtained legal representation. Notwithstanding the ruling of the trial court, on

September 1, 2010, both Relators (with James Craig Guetersloh, Trustee of the 1984

Guetersloh Trust, still acting pro se) filed a motion for oral hearing concerning the

motion to transfer venue. Despite being requested by Relators to do so, to date, the

trial court has failed to issue a ruling on either motion. Relators now seek from this

Court the issuance of a writ of mandamus ordering the trial court to set an oral hearing

on Relators' pending motion to transfer venue and to allow the Relator, James Craig

Guetersloh, Trustee of the 1984 Guetersloh Trust, to appear in the underlying

proceeding on a pro se basis.


I. Trustee's Right to Self-Representation


       The general rule in Texas (and elsewhere) has long been that "the term 'trust'

refers not to a separate legal entity but rather to the fiduciary relationship governing the

trustee with respect to the trust property." Huie v. DeShazo, 922 S.W.2d 920, 926 (Tex.

1996) (emphasis in original). Accordingly, suits against a trust must be brought against

the trustee.   See Werner v. Colwell, 909 S.W.2d 866, 870 (Tex. 1995); Smith v.

Wayman, 148 Tex. 318, 224 S.W.2d 211, 218 (Tex. 1949); Slay v. Burnett Trust, 143

Tex. 621, 187 S.W.2d 377, 382 (Tex. 1945).


       Relators argue that because James Craig Guetersloh, Trustee of the 1984

Guetersloh Trust, is the actual party to the suit being prosecuted by the Real Parties in

Interest, under Rule 7 of the Texas Rules of Civil Procedure he is authorized to "defend


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his rights therein, either in person or by an attorney of the court." The right of a party to

self-representation is not, however, absolute. See, e.g., Kunstoplast of Am. v. Formosa

Plastics Corp., USA, 937 S.W.2d 455, 456 (Tex. 1996) (holding that a non-attorney may

not appear pro se on behalf of a corporation); Steele v. McDonald, 202 S.W.3d 926,

928-29 (Tex.App.--Waco 2006, no pet.) (holding that a non-attorney may not appear pro

se in his capacity as independent executor of an estate). Although we have not been

cited to, nor have we found, any Texas case directly dealing with the issue of whether a

non-lawyer can appear pro se in court, in his capacity as a trustee of a trust, we believe

the same logic expressed in those opinions should apply to this situation.


       First, contrary to Relators' argument, the plain reading of Rule 7 does not

suggest that a non-lawyer can appear pro se, in the capacity of trustee of a trust,

because in that role he is appearing in a representative capacity rather than in propria

persona. Because of the nature of trusts, the actions of the trustee affect the trust

estate and therefore affect the interests of the beneficiaries. It follows that because a

trustee acts in a representative capacity on behalf of the trust's beneficiaries, he is not

afforded the personal right of self-representation.


       Secondly, the Texas Legislature has defined the practice of law to include,

among other things, "the preparation of pleadings or other documents incident to an

action or special proceeding or the management of the action or proceeding on behalf

of a client before a judge in court . . . ." Consistent with that legislative mandate,



                                             4
Relator's appearance in the trial court in his capacity as trustee falls within this definition

of the "practice of law." Accordingly, if a non-attorney trustee appears in court on behalf

of the trust, he or she necessarily represents the interests of others, which amounts to

the unauthorized practice of law. See Ziegler v. Nickel (1998) 64 Cal.App.4th 545, 549

(holding that "[a] nonattorney trustee who represents the trust in court is representing

and affecting the interest of the beneficiary and is thus engaged in the unauthorized

practice of law"). Therefore, we conclude the trial court did not err in prohibiting the

Relator, James Craig Guetersloh, in his capacity as trustee of the 1984 Guetersloh

Trust, from appearing without legal representation.


II. Trustee's Right to Mandamus Relief


       The Real Parties in Interest contend that, because James Craig Guetersloh,

Trustee of the 1984 Guetersloh Trust, does not have the authority to appear before the

trial court pro se, that prohibition should likewise bar this Court from considering his

pleadings in this proceeding. For the same reasons that he cannot appear pro se

before the trial court in his representative capacity, Mr. Guetersloh is likewise prohibited

from appearing before this Court in his capacity as trustee. Accordingly, we hereby

strike Relator's petition to the extent that it asserts claims in that capacity. That does

not, however, preclude us from considering claims being asserted in his individual

capacity.




                                              5
III. Individual Right to Mandamus Relief


         Mandamus is an extraordinary remedy available only in limited circumstances

involving manifest and urgent necessity and not for grievances that may be addressed

by other remedies. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). To be entitled

to relief, the relator must demonstrate a clear abuse of discretion or the violation of a

duty imposed by law when there is no other adequate remedy at law. See Republican

Party of Texas v. Dietz, 940 S.W.2d 86, 88 (Tex. 1997). Additionally, relator must

satisfy three requirements, to-wit: (1) a legal duty to perform; (2) a demand for

performance; and (3) a refusal to act. Stoner v. Massey, 586 S.W.2d 843, 846 (Tex.

1979).


         When a motion is properly pending before a trial court, the act of considering and

ruling upon it is ministerial. Eli Lilly and Co. v. Marshall, 829 S.W.2d 157, 158 (Tex.

1992). However, the trial court has a reasonable time within which to perform that

ministerial duty.    Safety-Kleen Corp. v. Garcia, 945 S.W.2d 268, 269 (Tex.App.-San

Antonio 1997, orig. proceeding). Whether a reasonable period of time has lapsed is

dependent on the circumstances of each case. Barnes v. State, 832 S.W.2d 424, 426

(Tex.App.--Houston [1st Dist.] 1992, orig. proceeding).


         Here, we are not faced with a situation where the trial court has merely failed to

schedule a hearing on Relator's motion to transfer venue. Instead, the trial court has

affirmatively informed Relator that it would not schedule a hearing on his motion until


                                             6
the trustee (a separate and distinct party) was represented by legal counsel.         The

absence of legal counsel representing the trustee should not serve as an impediment to

Relator's right, in his individual capacity, to have his motion heard. Accordingly, we find

that Relator, James Craig Guetersloh, Individually, is entitled to mandamus relief.


                                       Conclusion


       Having determined that James Craig Guetersloh, Trustee of the 1984 Guetersloh

Trust, cannot appear in court pro se, we strike his petition for writ of mandamus as it

pertains to claims being asserted in that capacity.       As it pertains to claims being

asserted by James Craig Guetersloh in his individual capacity, we conditionally grant

the writ of mandamus. We are confident the trial court will schedule a hearing on

James Craig Guetersloh's individual motion to transfer venue and we direct the Clerk of

this Court to issue the writ only in the event the trial court fails to schedule a hearing

within sixty days.


                                                        Per Curiam




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