In In re Cousins, a trustee filed a mandamus proceeding to challenge a trial court’s order denying his motion to pay his attorney’s fees from the trust. No. 12-18-00104-CV, 2018 Tex. App. LEXIS 3930 (Tex. App.—Tyler May 31, 2018, original proceeding). A co-trustee sued the other co-trustee for a number of causes of action related to alleged breaches of fiduciary duty. The plaintiff filed a motion for court ordered payment of his legal fees and litigation expenses from the trust based on Texas Property Code Section 114.063. At the hearing, the plaintiff argued that the statute and the trust agreement authorized reimbursement for his attorney’s fees: “We’re not asking you to award us attorney fees we’re asking for access to the trust to pay our ongoing legal expenses.” Id. He incurred fees totaled just over $650,000 and argued that “[i]t’s not our burden today when seeking interim attorney’s fees to do any proof to show what’s reasonable and necessary at this stage in the game.” Id. The trial court denied the request, and the plaintiff filed a petition for writ of mandamus seeking an order from the court of appeals to order the trial court to grant the motion.
The plaintiff argued that the trial court’s order denied him “this statutory right to ongoing reimbursement.” Id. The court of appeals stated:
Section 114.063 provides, in pertinent part, that a trustee may discharge or reimburse himself from trust principal or income or partly from both for expenses incurred while administering or protecting the trust or because of the trustee’s holding or owning any of the trust property. Tex. Prop. Code Ann. § 114.063(a)(2) (West 2014). The trustee has a lien against trust property to secure reimbursement. Id. § 114.063(b). In any proceeding under the Texas Trust Code, “the court may make such award of costs and reasonable and necessary attorney’s fees as may seem equitable and just.” Id. § 114.064(a) (West 2014).
Id. According to the plaintiff, Section 114.063 applied to reimbursement during the lawsuit and Section 114.064, but not Section 114.063, applies at the end of the litigation. He argued that absent mandamus review, Section 114.063’s application evaded appellate review and he would be forced to pursue litigation with his personal funds, which was “particularly egregious here when the trial court has already found a breach of fiduciary duty and thus validated some of [his] claims.” Id.
Without ruling on the underlying merits of the argument, the court of appeals disagreed that mandamus relief was appropriate. The court stated:
According to Cousins, “[p]roceeding forward with the litigation without mandamus relief jeopardizes Cousins’s ability to diligently pursue his breach-of-fiduciary-duty lawsuit against [James], as Cousins is obligated by statute to do.” However, the denial of Cousins’ motion does not deprive him of a reasonable opportunity to develop the merits of his case, such that the proceedings would be a waste of judicial resources. An example of one such case arises “when a trial court imposes discovery sanctions which have the effect of precluding a decision on the merits of a party’s claims—such as by striking pleadings, dismissing an action, or rendering default judgment—a party’s remedy by eventual appeal is inadequate, unless the sanctions are imposed simultaneously with the rendition of a final, appealable judgment.” Walker v. Packer, 827 S.W.2d 833, 843 (Tex. 1992).
Id. The court of appeals held that the trial court’s denial of the motion is not the type of ruling that has the effect of precluding a decision on the merits. “Cousins may still pursue his claims against James, including a claim for reimbursement under Section 114.063, and the eventual outcome has not been pre-determined by Respondent’s ruling.” Id. The court also held that mandamus review was not so essential to give needed and helpful direction regarding Section 114.063 that would otherwise prove elusive in an appeal from a final judgment. The court stated:
Section 114.063 was added in 1983 and amended in 1993, and few appellate courts have cited to or substantially analyzed that section. See Act of May 27, 1983, 68th Leg., R.S., ch. 567, art. 2, § 2, 1983 Tex. Gen. Laws 3269, 3376; see also Act of May 28, 1993, 73rd Leg., R.S., ch. 846, § 31, 1993 Tex. Gen. Laws. 3337, 3350. Additionally, the Texas Trust Code expressly authorizes a court to “make such award of costs and reasonable and necessary attorney’s fees as may seem equitable and just.” Tex. Prop. Code Ann. § 114.064(a). We see no reason why a trial court’s authority to award costs and attorney’s fees would not encompass claims to reimbursement under Section 114.063. Thus, although Cousins’ petition may present a question of first impression, we cannot conclude that the petition involves a legal issue that is likely to recur such that mandamus review, as opposed to a direct appeal from a final judgment, is necessary. Should Cousins find the verdict on his reimbursement claim to be unsatisfactory, he may appeal from the final judgment on that claim and nothing prevents him from relying on Section 114.063 in a direct appeal.
The plaintiff also argued that making him utilize personal funds to pursue litigation made the proceeding more costly and inconvenient. The court held that this fact, standing alone, did not warrant mandamus review. “This is particularly true given that, as previously discussed, the denial does not preclude Cousins from presenting a claim for reimbursement at trial and, consequently, Respondent’s failure to grant the motion does not result in an irreversible waste of resources.” Id. The court of appeals denied the petition for writ of mandamus, concluding that an ordinary appeal of the order denying the motion served as a plain, adequate, and complete remedy.