Fennel Trust - Page 9




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               Rule 60(a) 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.  As previously mentioned, the                
          parties agree that Virginia law is controlling in this case.                
               Based upon our review of Virginia law, we conclude that a              
          trustee generally is a necessary party in an action brought on              
          behalf of a trust.  Accord Mendenhall v. Douglas L. Cooper, Inc.,           
          387 S.E.2d 468 (Va. 1990); Raney v. Four Thirty Seven Land Co.,             
          357 S.E.2d 733, 736 (Va. 1987); cf. Walt Robbins, Inc. v. Damon             
          Corp., 348 S.E.2d 223, 226 (Va. 1986) (the trustee of an                    
          antecedent deed of trust is a necessary party in a suit to                  
          enforce a mechanic’s lien).                                                 
               We begin by observing that the petition filed in this case             
          does not comply with Rule 60.  In particular, Paul Jablonski                
          signed the petition as managing director, and the caption that he           
          placed on the petition identified the "Petitioner" as "FENNEL               
          TRUST".  However, neither the caption nor the body of the                   
          petition identified petitioner's trustee(s).                                








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