453 S.W.3d 307
Mo. Ct. App.2014Background
- Two trusts own equal undivided interests in commercial property leased for 99 years (ending 2055); lease allowed lessee broad discretion to alter or construct commercial improvements so long as improvements’ value remained at least $100,000.
- Lindenwood (assignee of the lease) demolished a long-vacant original building and planned a new multi-tenant commercial building as part of a larger development.
- The Trusts objected and sued for breach of lease and waste; Lindenwood sought a declaratory judgment that its redevelopment would not breach the lease or constitute waste.
- After a bench trial the trial court held Lindenwood could remove the original building, that the new building would increase property value (thus not waste), and the Trusts failed to prove breach.
- Trustees Mayer and Nolle (not licensed attorneys) filed a pro se notice of appeal on behalf of the Trusts; the court of appeals sua sponte raised whether a trustee may appear pro se.
- The court of appeals dismissed the appeal because the trustees’ pro se filing on behalf of the Trusts constituted the unauthorized practice of law and is therefore a nullity.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Lindenwood’s redevelopment breached the lease or amounted to waste | Trusts: demolition, grading, and removal of subsurface appurtenances exceed lease authority and convert trust property | Lindenwood: lease expressly allowed demolition/alteration and replacement with improvements worth ≥ $100,000; redevelopment increases value so not waste | Trial court: no breach; redevelopment permitted and will increase value; Trusts’ appeal dismissed on procedural grounds |
| Whether Trusts proved breach (insurance, repair, notice requirements) | Trusts: Lindenwood failed lease duties (insurance, repairs) and did not follow lease dispute procedures | Lindenwood: provided proof of insurance; Trusts failed to inspect, identify repairs, or give required six-month notice to permit forfeiture | Trial court: Trusts failed to satisfy contractual notice/inspection/forfeiture prerequisites; no breach proven |
| Whether a trustee may represent a trust pro se on appeal | Trusts: trustee’s pro se appeal should be permitted or at least cured because counsel later entered and no prejudice | Lindenwood: trustee pro se filing is unauthorized practice of law and renders appeal void; must be dismissed regardless of later counsel | Court: trustee acting on behalf of trust represents others and engaged in unauthorized practice of law; pro se notice of appeal is null and appeal dismissed |
| Whether failure to timely object by opponent or court acceptance of filings cures unauthorized practice | Trusts: Lindenwood’s delay in objecting and appellate court’s acceptance of filings should bar dismissal | Lindenwood: consent cannot validate unauthorized practice; courts may sua sponte strike filings | Court: lack of timely objection does not validate unauthorized filings; courts may act sua sponte; Naylor controls |
Key Cases Cited
- Naylor Senior Citizens Hous., L.P. v. Side Const. Co., 423 S.W.3d 238 (Mo. banc 2014) (acts of nonattorney representing an entity are unauthorized and may be void; statutory entities must appear through counsel)
- Joseph Sansone Co. v. Bay View Golf Course, 97 S.W.3d 531 (Mo.App.E.D.2003) (notice of appeal filed by nonattorney on behalf of another is void)
- Sellars By & Through Booth v. Denney, 945 S.W.2d 63 (Mo.App.S.D.1997) (nonattorney filings on behalf of another cannot be given legal effect)
- Schenberg v. Bitzmart, Inc., 178 S.W.3d 543 (Mo.App.E.D.2005) (unauthorized practice by representative renders the action or filings a nullity)
- Reed v. Labor & Indus. Relations Com’n, 789 S.W.2d 19 (Mo. banc 1990) (certain appeals/applications constitute assertions of legal rights and require counsel)
- Strong v. Gilster Mary Lee Corp., 23 S.W.3d 234 (Mo.App.E.D.2000) (Missouri limits practice of law to licensed attorneys)
- In re Guetersloh, 326 S.W.3d 737 (Tex.App.2010) (trustee acting pro se represents beneficiaries and cannot appear pro se in representative capacity)