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In re Cousins

Court of Appeals of Texas, Twelfth District, Tyler

May 31, 2018



          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.


          Brian Hoyle Justice

         Lynn D. Cousins, Jr., Relator, filed this original proceeding to challenge the denial of his second amended motion for court-ordered payment of legal fees and litigation expenses.[1] We deny the writ.


         Cousins, acting individually as a residual beneficiary and as co-trustee of the Turn Administrative Trust, the Betty L. Turn Family Trust, the J.R. & B.L. Turn Living Trust, and the James R. Turn Marital Trust sued James R. Turn, individually and as co-trustee of the four Trusts for breach of fiduciary duties. The Marital Trust consists of a main account trust and a sub account trust. Cousins is Betty's son and James's step-son. According to the petition, James and Cousins are co-trustees of each Trust with the exception of the Marital Trust's main account. Among his claims for relief, Cousins sought an order requiring James to submit to a mental examination, moved for a show of authority, sought payment of his interim legal fees and litigation expenses from the trusts, compensation as co-trustee, statutory accountings, removal of James as trustee or co-trustee for the Trusts, removal of any successor trustees appointed by James, imposition of a constructive trust, a declaratory judgment, damages for breach and tortious interference with inheritance rights, injunctive relief, and attorney's fees. In an affidavit, Cousins alleged that James failed to inform him that he was a co-trustee of any of the Trusts, refused to give Cousins information regarding the Trusts or access to trust funds, and refused to prepare statutory trust accountings. James filed a counterclaim alleging breach of fiduciary duties and seeking a declaratory judgment and injunctive relief.

         On January 24, 2018, Cousins filed his second amended motion for court ordered payment of his legal fees and litigation expenses from the Trust estates, based on Section 114.063 of the Texas Trust Code. At a hearing on the motion, Cousins' counsel argued that the Texas Trust Code and the trust agreement authorized reimbursement for attorney's fees. Counsel stated, "We're not asking you to award us attorney fees we're asking for access to the trust to pay our ongoing legal expenses." Counsel informed Respondent that incurred fees totaled just over $650, 000 and 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." Respondent denied Cousins' motion on April 10. This original proceeding followed.

         Prerequisites to Mandamus

         Mandamus is an extraordinary remedy. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A writ of mandamus will issue only when the relator has no adequate remedy by appeal and the trial court committed a clear abuse of discretion. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding). The relator has the burden of establishing both of these prerequisites. In re Fitzgerald, 429 S.W.3d 886, 891 (Tex. App.-Tyler 2014, orig. proceeding.). "Mandamus will not issue when the law provides another plain, adequate, and complete remedy." In re Tex. Dep't of Family and Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding).

         Adequate Remedy

         In this proceeding, Cousins contends that an "incorrect ruling on a trustee's access to trust funds to pay ongoing attorney's fees during the administration of, and litigation involving, the trust is a significant ruling that [] requires mandamus review." He maintains that, by pursuing the underlying litigation, he is fulfilling his duty as co-trustee to investigate James's actions and Respondent previously found his lawsuit to be well-founded, having "granted a partial summary judgment for Cousins, concluding that [James] Turn breached his fiduciary duty by [failing] to fund one of the trusts named in the trust instrument."[2]

         Applicable Law

         In certain circumstances, incidental trial court rulings can be corrected by writ of mandamus. In re Entergy Corp, 142 S.W.3d 316, 321 (Tex. 2004). However, mandamus relief from a non-appealable interlocutory order requires the showing of a serious denial of a right for which the remedy by appeal is inadequate. In re East Tex. Med. Ctr., No. 12-17-00183-CV, 2017 WL 4675511, at *2 (Tex. App.-Tyler Oct. 18, 2017, orig. proceeding) (mem. op.). "The operative word, 'adequate', has no comprehensive definition; it is simply a proxy for the careful balance of jurisprudential considerations that determine when appellate courts will use original mandamus proceedings to review the actions of lower courts." In re Prudential Inc. Co. of Am., 148 S.W.3d 124, 136 (Tex. 2004). "An appellate remedy is 'adequate' when any benefits to mandamus review are outweighed by the detriments." Id. If the benefits outweigh the detriments, an appellate court must consider whether the appellate remedy is adequate. Id. This determination is not an abstract or formulaic one; it is practical and prudential. Id. Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. Id.

         "Mandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation." Id. "As a selective procedure, mandamus can correct clear errors in exceptional cases and afford appropriate guidance to the law without the disruption and burden of interlocutory appeal." Id. at 138. We must be mindful that the benefits of mandamus review are easily lost by overuse. Id. An appellate court will exercise jurisdiction not merely because inaction ...

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