in Re: James Craig Guetersloh, Individually & James Craig Guetersloh, Trustee of the 1984 Guetersloh Trust ( 2010 )

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,
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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.
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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
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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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