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2004-UP-019 - Real Estate Unlimited v. Rainbow Living Trust

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Real Estate Unlimited, L.L.C.,        Respondent,

v.

Rainbow Living Trust, Lelie Rae M. Foster aka Leliaree Foster aka Lelia Ree Foster, Stephen Ford, as Delinquent Tax Collector for Spartanburg County, and Steve Arthur Foster, Defendants,

of whom Rainbow Living Trust is        Appellant.


Appeal From Spartanburg County
Roger L. Couch , Master-In-Equity


Unpublished Opinion No. 2004-UP-019
Submitted October 15, 2003 – Filed January 15, 2004


AFFIRMED


Felix A. Bulsa, of Inman, for Appellant.

Leonard R. Jordan, Jr., Berry Quackenbush, of Columbia, for Respondent.

PER CURIAM:  In this action to set aside a tax deed, Felix Bulsa appeals on behalf of Rainbow Living Trust asserting the master-in-equity in determining that as trustee, Bulsa cannot represent the Trust in the action because he is not an attorney. 

FACTUAL/PROCEDURAL BACKGROUND

The Trust was the high bidder at a tax sale for the subject property held November 4, 1997.  Stephen Ford, the Delinquent Tax Collector for Spartanburg County issued a tax deed to the Trust dated November 30, 1998 and recorded January 22, 1999. 

On June 21, 2000, Real Estate Unlimited, L.L.C., which had purchased the property at a mortgage foreclosure sale by deed dated April 23, 1998, brought an action to set aside the tax sale.  Bulsa, as trustee for the Trust, filed an answer to Real Estate Unlimited’s complaint and asserted a counterclaim.  In its reply to the counterclaim, Real Estate Unlimited asserted that because Bulsa is not an attorney licensed to practice law in South Carolina, he should not be allowed to represent the Trust in this matter. 

At the beginning of the hearing before the master-in-equity, counsel for Real Estate Unlimited again raised an objection to Bulsa appearing on behalf of the Trust.  The master ruled he would not allow Bulsa to argue on the Trust’s behalf.  In his written order, the master again stated that Bulsa could not represent the Trust because he is not an attorney.  He held that as the pleadings served and filed by Bulsa were a nullity, the Trust was deemed to be in default, and he would not address the issues raised in the counterclaim.  In the same order, the master vacated the tax deed holding the Delinquent Tax Collector for Spartanburg County failed to send the proper owners of record the requisite notices.  Bulsa filed this appeal on behalf of the Trust. 

DISCUSSION

Bulsa argues the master erred in holding Bulsa was not allowed to represent the Trust.  We disagree. [1]

South Carolina Code Annotated Section 40-5-310 (2001) provides, “No person may practice or solicit the cause of another person in a court of this State unless he has been admitted and sworn as an attorney.”  However, a citizen may prosecute or defend his own cause, if he so desires.  S.C. Code Ann. § 40-5-80 (Supp. 2002).  Although Bulsa maintains the Trust is a “special legal entity,” he claims he was merely representing himself by appearing on behalf of the Trust. 

The issue of whether a non-attorney trustee may appear in court on behalf of the trust is novel in South Carolina.  However, numerous other jurisdictions have addressed the issue and found a trustee’s appearance in court on behalf of the trust would constitute the unauthorized practice of law. 

The Supreme Court of Arkansas held a trustee who is not a licensed attorney cannot practice law in matters relating to his trusteeship on the theory that he is practicing for himself.  Arkansas Bar Assoc. v. Union Nat’l Bank of Little Rock, 273 S.W.2d 408, 410 (Ark. 1954).  The court explained that a trustee is not acting for himself and in connection with his own business affairs but on the contrary is acting for others who ordinarily would be the beneficiaries. Id. at 411. 

The Supreme Court of Nebraska noted that, “[A]s a general rule, a trust is not a legal personality, and the trustee is the proper person to sue or be sued on behalf of such  trust.” Back Acres Pure Trust v. Fahnlander, 443 N.W.2d 604, 605 (Neb. 1989).  However, the court found, “that a trustee’s duties in connection with his or her office do not include the right to present argument pro se in courts of the state, because in this capacity such trustee would be representing interests of others and would therefore be engaged in the unauthorized practice of law.”  Id. 

Similarly, the United States Court of Appeals for the Ninth Circuit held a person’s status as trustee did not include the right to present arguments pro se in federal court.  C.E. Pope Equity Trust v. U.S., 818 F.2d 696, 697 (9th Cir. 1987).  It stated the trustee’s status is that of fiduciary and his statutory responsibility was the orderly administration of assets.  Id.  Although it noted the record did not identify the trust’s beneficiaries, it held because “[the trustee] is not the actual beneficial owner of the claims being asserted by the Trusts (so far as one can tell from the record), he cannot be viewed as a ‘party’ conducting his ‘own case personally’ within the meaning of [28 U.S.C. § 1654]”.  Id. at 697-98.  See also Maisano v. Welcher, 940 F.2d 499 (9th Cir. 1991) (finding that if property belonged to the trust, the trustees had no standing to sue); Ziegler v. Nickel, 75 Cal.Rptr.2d 312 (Cal. Ct. App. 1998) (stating a non-attorney trustee who represents the trust in court is representing and affecting the interests of the beneficiary and is thus engaged in the unauthorized practice of law); Lazy ‘L’ Family Preservation Trust v. First State Bank of Princeton, 521 N.E.2d 198 (Ill. App. Ct. 1988) (finding that even if trust document purported to authorize person to represent trust in court, it cannot empower him to practice law without a license); Salman v. Newell, 885 P.2d 607 (Nev. 1994) (while taking no position on the validity of trusts, holding non-attorney trustee may not represent trust in district court or appellate court); Williams v. Global Constr. Co., 498 N.E.2d 500, 502 (Ohio Ct. App. 1985) (finding where trustee brought action in the name of a trust, he was acting as an attorney for the trust and engaged in the unauthorized practice of law); Life Science Church, Bible Camp & Christian Liberty Academy v. Shawano County, 585 N.W.2d 625, 334 (Wis. 1998) (“[T]rustees may appear in Wisconsin courts without licensed legal counsel only to represent their own legal interests in their individual capacities, not to represent the legal interests of their trusts or trust beneficiaries in their representative, fiduciary capacities as trustees.”).

We find these cases persuasive and hold section 40-5-80 does not authorize a non-attorney trustee of a valid trust to represent the trust in the court of common pleas because the action would not be the trustee’s “own cause” but rather that of the trust and its beneficiaries.  Accordingly, when assuming the Trust in this matter is valid, we hold the master did not err in ruling Bulsa may not represent the Trust in his court. 

AFFIRMED. 

HUFF, STILWELL, and BEATTY concur. 


[1]    For this opinion, we assume the Trust is a valid trust.