In re Cousins, 551 S.W.3d 913 (Tex. App.—Tyler 2018, orig. proceeding [mand. pending]).


Legal Fees


Beneficiary (also a co-trustee) sued Trustee for breach of fiduciary duties. Beneficiary requested that the court order payment of his legal fees and litigation expenses from the trusts under Property Code § 114.063. The court denied the request. Beneficiary then brought a mandamus action against the judge.


The appellate court denied mandamus relief. The court explained that mandamus is an “extraordinary remedy” and is not warranted in this case. Mandamus is neither “essential to preserve important substantive and procedural rights from impairment or loss” nor it is needed to give direction on how Property Code § 114.063 operates that would “otherwise prove elusive in an appeal from a final judgment.” Accordingly, the court concluded that “an ordinary appeal of the order denying [Beneficiary’s] motion for court ordered litigation expenses from the Trust estates serves as a plain, adequate, and complete remedy.”


Moral:  Without clear facts showing the mandamus relief is vital, the court is unlikely to grant the writ.