

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).


