[535]*535JONES, J.
Robert J. Wright, a non-lawyer, filed a complaint in the Oregon Tax Court in which the Marguerite E. Wright Trust as plaintiff sued the Department of Revenue and Lane County Department of Assessment and Taxation. Without making any reference to his status, Wright signed the complaint as “Robert J. Wright, [street address], Noti, Oregon.” On June 6, 1983, the Tax Court granted defendant Department of Revenue’s motion to strike the plaintiffs complaint on the grounds that the complaint was not signed by a party or a member of the Oregon State Bar. The order gave plaintiff 15 days’ leave to file amended pleadings. On September 26,1983, the Tax Court dismissed plaintiffs case with prejudice. On September 27, 1983, Robert J. Wright tendered an amended complaint in the Tax Court naming solely the Marguerite E. Wright Trust as the plaintiff. The suit was against the same defendants, this time alleging in the body of the complaint that Marguerite E. Wright was the sole stockholder of the trust and that Robert J. Wright was trustee. The amended complaint was signed by Marguerite E. Wright as Stockholder-Trustee and Robert J. Wright as Trustee of the Marguerite E. Wright Trust. The Tax Court refused to accept the amended pleading and plaintiff appeals from the final order of the Tax Court.
The primary issue on appeal is whether a non-lawyer may represent a business trust in any action. At common law, the proper party to bring a suit for a trust was the trustee. See, Village of Brookfield v. Pentis, 101 F2d 516 (7th Cir 1939); Kadota Fig Assn. v. Case-Swayne Co., 73 Cal App 2d 796, 167 P2d 518 (1946). The Oregon legislature enacted ORS 128.580, which reads in pertinent part:
“Any business trust shall be subject to such provisions of law, now or hereafter enacted, with respect to domestic and foreign corporations, respectively, as relate to the issuance of securities, filing of required statements of reports, service of process, general grants of power to act, right to sue and be sued, limitation of individual liability of shareholders and rights to acquire, mortgage, sell, lease, operate and otherwise to deal in real and personal property. Except as otherwise provided in its trust agreement or declaration of trust, or any amendments thereto, any business trust shall also be subject to the other provisions of ORS chapter 57 and other rights [536]*536and duties existing under the common law and statutes of this state applicable to domestic and foreign corporations. * * *” (Emphasis added.)
It is immaterial whether the legislature intended to alter the common law so that a business trust may sue in its own name rather than in the name of the trustee. If the legislature did not intend to change the common law, then in order for Robert J. Wright to bring this suit, he would have had to bring it in his name as trustee. He did not. If the legislature intended to change the common law, this suit was still improperly brought. Pursuant to ORS 128.580, the business trust is treated as a corporation and may bring suit in its own name, but under ORS 9.320 a corporation must be represented by an attorney. ORS 9.320 provides:
“Any action, suit, or proceeding may be prosecuted or defended by a party in person, or by attorney, except that the state or a corporation appears by attorney in all cases, unless otherwise specifically provided by law. Where a party appears by attorney, the written proceedings must be in the name of the attorney, who is the sole representative of his client as between him and the adverse party, except as provided in ORS 9.310.” (Emphasis added.)
As provided in ORS 9.005, an “attorney” must be a “member” of the Oregon State Bar for purposes of ORS 9.320. Robert J. Wright concedes he is not an attorney. See, Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977).
ORS 9.320 does not require a corporation to be represented by an attorney if “otherwise specifically provided by law.” Wright contends that the second sentence of ORS 128.580 (emphasized supra) provides the exception to ORS 9.320’s requirement of an attorney because a provision in the Declaration of Trust here provides for pro se representation. The legislative history indicates that the exception in ORS 128.580 was added only to clarify the application of ORS chapter 57 (relating to business corporations) to business trusts. We infer from this history no legislative intent to allow pro se representation of business trusts. See Hearings on SB 95 before the House Committee on Business and Consumer Affairs, May 9,1979, Exh C. No specific provision of law exists to override the requirement of an attorney under ORS 9.320;1 [537]*537therefore, a business trust must be represented by an attorney notwithstanding any contrary provision in the Declaration of Trust.
Plaintiff further contends that ORS 128.009(1), (3)(z) and (3)(aa) apply to allow plaintiff to pursue this action pro se, which provide as follows:
“(1) From time of creation of the trust until final distribution of the assets of the trust, a trustee has the power to perform, without court authorization, every act which a prudent person would perform for the purposes of the trust including but not limited to the powers specified in subsection (3) of this section.
<<* * * * *
“(3) A trustee has the power, subject to subsections (1) and (2) of this section:
(<$ * * * *
“(z) To prosecute or defend actions, claims, or proceedings for the protection of trust assets and of the trustee in the performance of duties; and
“(aa) To execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the trustee.”
This provision does not apply here because Robert J. Wright (1) did not as a trustee sue as a party plaintiff, and (2) did not allege his status as a trustee in the original complaint.
Free access — add to your briefcase to read the full text and ask questions with AI
[535]*535JONES, J.
Robert J. Wright, a non-lawyer, filed a complaint in the Oregon Tax Court in which the Marguerite E. Wright Trust as plaintiff sued the Department of Revenue and Lane County Department of Assessment and Taxation. Without making any reference to his status, Wright signed the complaint as “Robert J. Wright, [street address], Noti, Oregon.” On June 6, 1983, the Tax Court granted defendant Department of Revenue’s motion to strike the plaintiffs complaint on the grounds that the complaint was not signed by a party or a member of the Oregon State Bar. The order gave plaintiff 15 days’ leave to file amended pleadings. On September 26,1983, the Tax Court dismissed plaintiffs case with prejudice. On September 27, 1983, Robert J. Wright tendered an amended complaint in the Tax Court naming solely the Marguerite E. Wright Trust as the plaintiff. The suit was against the same defendants, this time alleging in the body of the complaint that Marguerite E. Wright was the sole stockholder of the trust and that Robert J. Wright was trustee. The amended complaint was signed by Marguerite E. Wright as Stockholder-Trustee and Robert J. Wright as Trustee of the Marguerite E. Wright Trust. The Tax Court refused to accept the amended pleading and plaintiff appeals from the final order of the Tax Court.
The primary issue on appeal is whether a non-lawyer may represent a business trust in any action. At common law, the proper party to bring a suit for a trust was the trustee. See, Village of Brookfield v. Pentis, 101 F2d 516 (7th Cir 1939); Kadota Fig Assn. v. Case-Swayne Co., 73 Cal App 2d 796, 167 P2d 518 (1946). The Oregon legislature enacted ORS 128.580, which reads in pertinent part:
“Any business trust shall be subject to such provisions of law, now or hereafter enacted, with respect to domestic and foreign corporations, respectively, as relate to the issuance of securities, filing of required statements of reports, service of process, general grants of power to act, right to sue and be sued, limitation of individual liability of shareholders and rights to acquire, mortgage, sell, lease, operate and otherwise to deal in real and personal property. Except as otherwise provided in its trust agreement or declaration of trust, or any amendments thereto, any business trust shall also be subject to the other provisions of ORS chapter 57 and other rights [536]*536and duties existing under the common law and statutes of this state applicable to domestic and foreign corporations. * * *” (Emphasis added.)
It is immaterial whether the legislature intended to alter the common law so that a business trust may sue in its own name rather than in the name of the trustee. If the legislature did not intend to change the common law, then in order for Robert J. Wright to bring this suit, he would have had to bring it in his name as trustee. He did not. If the legislature intended to change the common law, this suit was still improperly brought. Pursuant to ORS 128.580, the business trust is treated as a corporation and may bring suit in its own name, but under ORS 9.320 a corporation must be represented by an attorney. ORS 9.320 provides:
“Any action, suit, or proceeding may be prosecuted or defended by a party in person, or by attorney, except that the state or a corporation appears by attorney in all cases, unless otherwise specifically provided by law. Where a party appears by attorney, the written proceedings must be in the name of the attorney, who is the sole representative of his client as between him and the adverse party, except as provided in ORS 9.310.” (Emphasis added.)
As provided in ORS 9.005, an “attorney” must be a “member” of the Oregon State Bar for purposes of ORS 9.320. Robert J. Wright concedes he is not an attorney. See, Oregon State Bar v. Wright, 280 Or 693, 573 P2d 283 (1977).
ORS 9.320 does not require a corporation to be represented by an attorney if “otherwise specifically provided by law.” Wright contends that the second sentence of ORS 128.580 (emphasized supra) provides the exception to ORS 9.320’s requirement of an attorney because a provision in the Declaration of Trust here provides for pro se representation. The legislative history indicates that the exception in ORS 128.580 was added only to clarify the application of ORS chapter 57 (relating to business corporations) to business trusts. We infer from this history no legislative intent to allow pro se representation of business trusts. See Hearings on SB 95 before the House Committee on Business and Consumer Affairs, May 9,1979, Exh C. No specific provision of law exists to override the requirement of an attorney under ORS 9.320;1 [537]*537therefore, a business trust must be represented by an attorney notwithstanding any contrary provision in the Declaration of Trust.
Plaintiff further contends that ORS 128.009(1), (3)(z) and (3)(aa) apply to allow plaintiff to pursue this action pro se, which provide as follows:
“(1) From time of creation of the trust until final distribution of the assets of the trust, a trustee has the power to perform, without court authorization, every act which a prudent person would perform for the purposes of the trust including but not limited to the powers specified in subsection (3) of this section.
<<* * * * *
“(3) A trustee has the power, subject to subsections (1) and (2) of this section:
(<$ * * * *
“(z) To prosecute or defend actions, claims, or proceedings for the protection of trust assets and of the trustee in the performance of duties; and
“(aa) To execute and deliver all instruments which will accomplish or facilitate the exercise of the powers vested in the trustee.”
This provision does not apply here because Robert J. Wright (1) did not as a trustee sue as a party plaintiff, and (2) did not allege his status as a trustee in the original complaint. Furthermore, under ORS 128.005, ORS 128.009 does not apply to “a business trust which provides for certificates to be issued to the beneficiary.”* 2 Here, the Declaration of Trust specifically [538]*538provides for certificates to be “distributed for the benefit” of the trustees. This trust is, therefore, excluded from ORS 128.005; hence ORS 128.009 does not apply.* *3
In addition, Wright argues that the Tax Court improperly granted the Department of Revenue’s motion to strike because ORCP 17A. allows a pleading to be signed by a party. Robert J. Wright contends that he is a party under ORCP 17A., which provides in part:
“Every pleading shall be signed by the party or by a resident attorney of the state * * *.”
As previously mentioned, Robert J. Wright is not a party to this lawsuit. The suit was not brought by Robert J. Wright in his own name against the Department of Revenue nor by Robert J. Wright, trustee on behalf of the Marguerite E. Wright Trust. The named plaintiff was the Marguerite E. Wright Trust.
ORCP 15B. authorized the Tax Court to grant the 15 days’ leave to amend. ORCP 15B.(2) provides:
“If the court grants a motion and an amended pleading is allowed or required, such pleading shall be filed within 10 days after service of the order, unless the order otherwise directs.” (Emphasis added.)
Not only was the case dismissed and no motion to reinstate ever filed, but the plaintiff waited more than three months to tender the amended complaint. The Tax Court therefore properly refused to allow plaintiff to amend. The ruling of the Tax Court is affirmed.