
                                          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 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 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, 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.


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  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

-----------------------
[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).

