326 S.W.3d 737
Tex. App.2010Background
- This mandamus proceeding relates to an underlying suit in the 121st District Court, Terry County, seeking termination of the 1984 Guetersloh Trust, distribution of trust property, and an accounting by trust trustees and beneficiaries acting pro se.
- The Trust’s beneficiaries and one Relator, James Craig Guetersloh, individually, filed suit naming the trustee as a party; the other Relator is named as a party in his individual capacity.
- On August 26, 2010, Relators filed an original answer and a Motion to Transfer Venue; the trial court sua sponte held a trustee cannot appear pro se because of unauthorized practice of law.
- Relators then sought a writ of mandamus to compel a hearing on the motion to transfer venue and to allow the trustee to appear pro se in the underlying proceeding.
- The trial court had not ruled on the motions, prompting Relators to seek mandamus relief from this court.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can a trustee appear pro se in his capacity as trustee? | Guetersloh argues Rule 7 allows self-representation. | Guetersloh cannot appear pro se; representation by counsel is required; pro se trustee equates to unauthorized practice of law. | No; trustee cannot appear pro se in trustee capacity. |
| Does the trustee's pro se status affect mandamus review of the underlying claims? | Relators seek mandamus relief for hearings despite trustee's capacity. | Pro se status in trustee capacity bars court consideration; however, individual capacity remains issue. | Petition struck to the extent within trustee capacity; individual-capacity claims remain reviewable. |
| Is Relator entitled to mandamus relief in his individual capacity? | Relator seeks mandamus relief to compel scheduling of a hearing. | Trial court should be allowed reasonable time to rule; mandamus not warranted only for delay. | Relator is entitled to mandamus relief in his individual capacity; court should schedule a hearing within sixty days. |
Key Cases Cited
- Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) (trusts; suit against trustee; fiduciary relationship governs the action)
- Werner v. Colwell, 909 S.W.2d 866 (Tex.1995) (suits against a trust; trustee as party)
- Smith v. Wayman, 224 S.W.2d 211 (Tex.1949) (trusts; trustee named in action)
- Slay v. Burnett Trust, 187 S.W.2d 377 (Tex.1945) (trusts; necessity of trustee presence in accounting actions)
- Kunstoplast of Am. v. Formosa Plastics Corp., USA, 937 S.W.2d 455 (Tex. 1996) (non-attorney cannot represent corporation or engage in unauthorized practice of law)
- Steele v. McDonald, 202 S.W.3d 926 (Tex.App.-Waco 2006) (non-attorney may not appear pro se in capacity as independent executor)
- Ziegler v. Nickel, 64 Cal. App. 4th 545 (Cal. Ct.App. 1998) (non-attorney trustee representing trust in court; unauthorized practice of law)