Deschutes Road Trust, Robert Hogue, Trustee - Page 10




                                        - 9 -                                         
          348.                                                                        
               Rule 60(a)(1) requires that a case be brought "by and in the           
          name of the person against whom the Commissioner determined the             
          deficiency * * * or by and with the full descriptive name of the            
          fiduciary entitled to institute a case on behalf of such person."           
          Rule 60(c) states that the capacity of a fiduciary or other                 
          representative to litigate in the Court “shall be determined in             
          accordance with the law of the jurisdiction from which such                 
          person's authority is derived.”  The record shows that California           
          State law is controlling in this case.                                      
               Under California law, a trustee is authorized to commence              
          litigation on behalf of a trust.  Cal. Prob. Code sec. 16249                
          (West Supp. 2002).  However, Deschutes has failed to provide the            
          Court with the documentary evidence necessary to support its                
          contention that Robert Hogue was vested with authority to                   
          institute this action on its behalf.  As it pertains to the                 
          question of Robert Hogue’s status as a duly appointed trustee of            
          Deschutes, the record in this case is, at best, muddled.                    
               As previously discussed, Deschutes presented the Court with            
          two versions of the purported trust instrument.  The first                  
          document, dated January 1, 1994, identifies E.E. Salera D.C. as             
          “creator” and a Michael Welch and an Edmond A. Salera as                    
          trustees.  The second document, dated January 13, 1997,                     
          identifies a Carol Ruthenberg as “creator” and Robert Hogue as              






Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  Next

Last modified: May 25, 2011