Schaake v. City of Lawrence
| Decision Date | 07 May 2021 |
| Docket Number | No. 122,515,122,515 |
| Citation | 491 P.3d 1265 |
| Court | Kansas Court of Appeals |
| Parties | James Kurt SCHAAKE, TRUSTEE OF the DONALD DEAN SCHAAKE REVOCABLE TRUST, Appellant, v. CITY OF LAWRENCE, Kansas, Appellee. |
James Kurt Schaake, appellant pro se.
Randall F. Larkin, Toni Ramirez Wheeler, and Maria Kaminska Garcia, of City of Lawrence, for appellee.
Before Hill, P.J., Gardner, J. and Burgess, S.J.
James Kurt Schaake (Schaake) is one of three co-trustees and beneficiaries to the Donald Dean Schaake Revocable Trust, dated June 16, 2009 (Trust). The Trust owns two properties in Lawrence, and Schaake lives on one of them. In 2018, the City of Lawrence (City) established two improvement districts along Queens Road where the Trust properties are located and approved a funding plan which required special taxes to be levied against properties owners.
Acting as trustee, Schaake hired a law firm to protect the Trust from the City's action. The firm filed suit alleging illegal taxation and moved for a temporary injunction. The district court denied that motion, but before the court considered the merits of the Trust's remaining claims, the district court granted the firm's motion to withdraw as counsel. Finding that the Trust's case could not proceed without legal counsel, the district court ordered Schaake to hire substitute counsel to represent the Trust. When Schaake failed to do so, the court dismissed the case with prejudice for failure to prosecute. Schaake now appeals, still acting pro se.
But Schaake shows no personal right or interest at issue in the case. And Schaake, acting pro se, cannot act as a co-trustee on behalf of the Trust without an attorney, and he lacks standing to appeal on behalf of the several beneficiaries. We thus dismiss the appeal.
Donald Dean Schaake (Donald) created the Trust in 2009. The Trust property includes Schaake's residence—550 Queens Road—and an adjacent lot—590 Queens Road in Lawrence. The Trust named Schaake and his two brothers as co-trustees. After Donald died in 2014, legal and equitable title to the Trust transferred to Schaake and his brothers. So besides being co-trustees, Schaake and his two brothers became the Trust's sole beneficiaries. After brother Tom died, his property rights transferred to his successor, his only child.
In 2016, the City began to make a funding plan for improvements to Queens Road. As part of its financing plan, the City separated Queens Road into two improvement districts: (1) the Queens Road Improvement District (Street Improvement District); and (2) the West Sixth Street and Queens Road Signalization District (Signalization District). The Street Improvement District required reconstruction of Queens Road from West Sixth Street to Eisenhower Drive and included additions of or improvements to the street, curbs, and gutters, sidewalks, bike lanes, shared use paths, storm sewer, water mains, sanitary relocation, and a roundabout. The Signalization District would improve the West Sixth Street and Queens Road intersection, including adding a traffic signal. The City assigned each district a portion of the costs for the improvements. Unfortunately, the Trust property fell into both improvement districts.
In October 2018, the City adopted Resolution No. 7267, which officially established the boundaries of the two improvement districts. And that December, the City established the maximum cost to assess each improvement district and the amounts to levy against each property in those districts. For the Street Improvement District, the City would contribute $638,250 to the overall $4,830,760 cost and would assess the remaining $4,192,510 to 398 properties on a square-foot basis. For the Signalization District, the City would assess the entire $450,000 cost, also on a square-foot basis, to the 515 properties included.
Schaake, acting as a trustee, then hired a law firm to represent the Trust against the City. Its petition sought declaratory and injunctive relief, arguing that the City's establishment of the improvement districts and the special assessments were illegal. It also requested a restraining order and temporary injunction to prevent the City from assessing and levying the special taxes pending the resolution of the suit, but the district court denied that request, finding the Trust failed to show a substantial likelihood of success on the merits.
The City later moved for summary judgment. That same day, the firm representing the Trust moved to withdraw as counsel, citing reasons protected by attorney-client privilege. The district court conducted an ex parte in-camera discussion with counsel then granted the motion to withdraw for good cause shown.
The district court then scheduled a status conference. Although we do not have a transcript of that conference, the parties agree that Schaake appeared at the hearing without representation and told the district court he wanted to proceed pro se. Instead, the district court ordered the parties to brief whether pro se litigants have standing to represent a trust and advised Schaake to seek other counsel. The parties briefed the issue, but Schaake did not retain other counsel, stating he was unable to find any.
The district court held another status conference and, having read the briefs, found that Schaake could not prosecute the case pro se because a trust needs licensed legal representation. The court ordered Schaake to hire counsel within two weeks and warned him that if he failed to do so it would dismiss his case for lack of prosecution. When Schaake failed to retain counsel after two weeks, the City moved to dismiss Schaake's petition for a lack of prosecution, and the district court granted that motion. Still acting pro se, Schaake appeals that dismissal.
We first consider whether Schaake has standing to appeal. Resolution of that question involves the same analysis as whether the district court erred in finding that Schaake lacked standing to act in the district court on behalf of the Trust. The City argues that Schaake lacks standing because as a nonlawyer he cannot represent the Trust without engaging in the unauthorized practice of law.
Whether a trust must be represented in our courts by a licensed attorney is a question of first impression in Kansas.
Parties in a judicial action must have standing as part of the Kansas case-or-controversy requirement imposed by the judicial power clause of Article 3, § 1 of the Kansas Constitution. See State ex rel. Morrison v. Sebelius , 285 Kan. 875, 895-96, 179 P.3d 366 (2008). Standing is a jurisdictional question which determines whether a litigant has a right to have a court determine the merits of the issues presented. See Cochran v. Kansas Dept. of Agriculture , 291 Kan. 898, 903, 249 P.3d 434 (2011). Whether a party has established standing to bring an action before a Kansas court is a question of law over which review is unlimited. See In re Care & Treatment of Emerson , 306 Kan. 30, 34, 392 P.3d 82 (2017).
Our Supreme Court has "explained that if a person does not have standing to challenge an action or to request a particular type of relief, then ‘there is no justifiable case or controversy’ and the suit must be dismissed." Board of Sumner County Comm'rs v. Bremby , 286 Kan. 745, 750, 189 P.3d 494 (2008) (citing Kansas Bar Ass'n v. Judges of the Third Judicial Dist. , 270 Kan. 489, 490, 14 P.3d 1154 [2000] ). 286 Kan. at 750, 189 P.3d 494 (citing Sebelius , 285 Kan. at 885, 179 P.3d 366 ).
At the pleading stage, the party asserting standing has the burden to establish a prima facie case of standing, that is, a basis when viewed in the light most favorable to the party. See In re Adoption of T.M.M.H. , 307 Kan. 902, 915-16, 416 P.3d 999 (2018) ; Aeroflex Wichita, Inc. v. Filardo , 294 Kan. 258, 264-65, 275 P.3d 869 (2012). The determination of jurisdiction and standing rests on the facts in existence at the time of filing. See Grupo Dataflux v. Atlas Global Group, L.P ., 541 U.S. 567, 580, 124 S. Ct. 1920, 158 L. Ed. 2d 866 (2004).
Kansas law is clear in that a party to a civil action may appear only pro se or through counsel. See State ex rel. Stephan v. O'Keefe , 235 Kan. 1022, 1033, 686 P.2d 171 (1984) ; Atchison Homeless Shelters, Inc. v. Atchison County , 24 Kan. App. 2d 454, 454-55, 946 P.2d 113 (1997) ; Hickman v. Frerking , 4 Kan. App. 2d 590, 592, 609 P.2d 682 (1980). There is good reason for this rule—to protect the public:
O'Keefe , 235 Kan. at 1033, 686 P.2d 171.
Based on that rationale, our Supreme Court has typically recognized only four categories of individuals who can appear in Kansas courts:
"(1) members of the bar who have shown that they possess good moral character and the requisite general education, and who have been examined by the Board of Law Examiners and issued their licenses to practice law; (2) individuals who have graduated from an accredited law school and have a temporary permit to practice law; (3) legal interns, who are law students assigned to attorneys, agencies, and public bodies who have requested their...
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