in Re: Lorenzo Aguilar

• Court: Court of Appeals of Texas
• Decided: April 13, 2011
• Docket: 08-10-00265-CV
• Status: Published

Opinion

COURT OF APPEALS EIGHTH DISTRICT OF TEXAS EL PASO, TEXAS

§

§ IN RE: LORENZO AGUILAR, No. 08-10-00265-CV § AN ORIGINAL PROCEEDING Relator. § IN MANDAMUS §

OPINION ON PETITION FOR WRIT OF MANDAMUS

In this original proceeding of first impression, we must determine whether a writ of

mandamus should issue because the trial court denied a motion to compel advancement of litigation

expenses. We will conditionally grant the writ.

FACTUAL SUMMARY

In 1992, Lorenzo Aguilar and Eugenio Mesta formed Perspectiva Group, Inc., a company that

furnishes architectural, construction, and construction management services.1 Aguilar was an officer

and director of Perspectiva. In 2006, Perspectiva allegedly entered into a joint venture agreement

with Native Contractors, Inc., whereby the two companies were to split the profits and losses from

a contract to refurbish the Bay Pines National Cemetery. Native later sued Perspectiva, Aguilar, and

Mesta, claiming that the defendants had breached the joint venture agreement and their fiduciary

duties.

Perspectiva settled with Native and received an assignment of Native’s claims. It then filed

1 The company was originally called Aguilar & Mesta, Inc., but subsequently changed its name to Perspectiva. cross-claims against Aguilar and certain Perspectiva employees, including Aguilar’s son, for

conspiracy and breach of fiduciary duties. Perspectiva alleges that the other employees, with

Aguilar’s knowledge, formed a company for the purpose of moonlighting on the cemetery project.

These same employees “double-dipped” on the project by having their company bill for some of the

services that they were performing as employees as Perspectiva. The employees allegedly shared

part of their company’s revenue from the project with Aguilar.

Perspectiva also filed a separate suit against Aguilar and others. In this suit, Perspectiva

accused Aguilar’s daughter, who was an employee of Perspectiva, of forming a company that

competed with Perspectiva. Aguilar allegedly knew that his daughter’s company received

subcontracts from Perspectiva and that those subcontracts involved conflicts of interest and

moonlighting. The two suits were eventually consolidated into one cause.

Citing Section 12.4 of Perspectiva’s bylaws, Aguilar’s attorney sent Perspectiva’s attorney

a letter requesting that Perspectiva advance Aguilar’s defense costs, including attorney’s fees.

Article 12 of Perspectiva’s bylaws deals with indemnification of officers and directors who are

parties to a legal proceeding. Section 12.1 requires Perspectiva to indemnify these persons against

judgments and reasonable expenses under certain circumstances. Section 12.2 sets forth the standard

of conduct that must be met to be entitled to indemnification. At a minimum, the person must have

acted in good faith and under the reasonable belief that his or her actions were not opposed to

Perspectiva’s best interests. Section 12.4, which concerns advancement of expenses, reads in its

entirety:

SECTION 12.4 Payment of Expenses. Reasonable expenses incurred by a person who was, is, or threatened to be made a named defendant or respondent in a Proceeding shall be paid or reimbursed by the Corporation, in advance of the final disposition of the Proceeding, and without determination of indemnification, after the Corporation receives a written affirmation by the director or officer of his good faith belief that he has met the standard of conduct necessary for indemnification under this Article in a written undertaking by or on behalf of the person to repay the amount paid or reimbursed if it is ultimately determined that he has not met that standard or if it is ultimately determined that indemnification of the director against expenses incurred by him in connection with that proceeding is prohibited by law or Section 12.1 hereof. The written undertaking described above must be an unlimited general obligation of the person but need not be secured. The written undertaking may be accepted without reference to financial ability to make repayment.

Counsel’s letter states that “Aguilar does not believe he has committed any breach of his

fiduciary duty, is in titled [sic] to in indemnification [sic] per Section 12.1 of the bylaws, and in the

event of a determination to the contrary, will undertake to repay those sums advanced to him as an

unlimited general obligation.” When Perspectiva failed to respond to the letter, Aguilar filed a

counterclaim against Perspectiva for indemnification and advancement of defense costs. He also

filed a “motion to compel” Perspectiva to reimburse him for attorney’s fees already incurred and to

advance his future attorney’s fees on a monthly basis.2

Thereafter, Perspectiva’s board of directors voted not to advance Aguilar’s defense costs.

Perspectiva also filed a response to Aguilar’s motion to compel advancement, objecting to the

motion on procedural and substantive grounds.

During a hearing on Aguilar’s motion, the trial judge concluded that Aguilar’s entitlement

to advancement turned on whether he had met the standard necessary for indemnification under

Perspectiva’s bylaws and whether he would have the ability to repay the advanced funds. After

Aguilar refused to present any evidence on these issues, the judge denied the motion to compel.

STANDARD OF REVIEW

2 The full title of Aguilar’s motion was “Lorenzo Aguilar’s M otion to Compel Perspectiva Group, Inc. D/B/A Perspectiva to Comply W ith Its Bylaw Provisions and to Abate This Case Pending Compliance.” Aguilar later filed a substantively identical plea for relief, but with the new name “Lorenzo Aguilar’s Application to Compel Perspectiva Group, Inc. D/B/A Perspectiva to Comply W ith Its Bylaw Provisions and to Abate This Case Pending Compliance.” A writ of mandamus will issue only if the trial court clearly abused its discretion and if the

relator has no adequate remedy by appeal. In re Prudential Ins. Co. of America, 148 S.W.3d 124,

135-36 (Tex. 2004)(orig. proceeding). A court’s erroneous legal conclusion, even on a matter of first

impression, is an abuse of discretion. Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996)(orig.

proceeding). Appeal following a trial is inadequate if the very act of proceeding to trial would defeat

the substantive right at stake. In re McAllen Medical Center, Inc., 275 S.W.3d 458, 465 (Tex.

2008)(orig. proceeding).

ADVANCEMENT OF LITIGATION EXPENSES

Article 2.02-1 of the Texas Business Corporation Act expressly allows Texas corporations

to advance litigation expenses to its directors.3 The statutory language regarding advancement is

nearly identical to Section 12.4 of Perspectiva’s bylaws:

K. Reasonable expenses incurred by a director who was, is, or is threatened to be made a named defendant or respondent in a proceeding may be paid or reimbursed by the corporation, in advance of the final disposition of the proceeding and without the determination specified in Section F of this article [regarding how a determination of indemnification must be made] or the authorization or determination specified in Section G of this article [regarding authorization of indemnification], after the corporation receives a written affirmation by the director of his good faith belief that he has met the standard of conduct necessary for indemnification under this article and a written undertaking by or on behalf of the director to repay the amount paid or reimbursed if it is ultimately determined that he has not met that standard or if it is ultimately determined that indemnification of the director against expenses incurred by him in connection with

3 On January 1, 2010, the Texas Business Corporation Act expired and was replaced by the Texas Business Organizations Code. Anderson Petro-Equipment, Inc. v. State of Texas, 317 S.W .3d 812, 815 n.2 (Tex.App.--Austin 2010, pet. denied). The Business Corporation Act generally governs the acts, contracts, and transactions of a corporation and its officials that occurred before January 1, 2010. See T EX .B U S .O RGS .C O D E A N N . §§ 401.001-402.006. 402.006 (W est Pamphlet 2010). But, pursuant to Section 402.007 of the Business Organizations Code, the Code governs any proposed indemnification by a corporation after January 1, 2010, regardless of when the relevant events occurred. See id. § 402.007. Although advancement and indemnification are closely related concepts and are covered in the same chapter of the Code, Section 402.007 omits any reference to advancement. See id. §§ 8.001-.104 (addressing indemnification and advancement). Therefore, and because all of the events giving rise to this proceeding occurred before 2010, we will cite the Business Corporation Act here. As they relate to the issues in this proceeding, however, there is no substantive difference between the old Act and the new Code. that proceeding is prohibited by . . . this article. . . .

L. The written undertaking required by Section K of this article must be an unlimited general obligation of the director but need not be secured. It may be accepted without reference to financial ability to make repayment.

TEX .BUS.CORP .ACT ANN . art. 2.02-1(K), (L)(West 2003).4

There are no Texas cases concerning advancement under the Business Corporation Act or

the Business Organizations Code. But the courts of Delaware have addressed advancement on

numerous occasions. The Delaware Supreme Court has explained that indemnification encourages

corporate service by protecting an official’s personal financial resources from depletion by the

expenses incurred during litigation that results from the official’s service. Homestore, Inc. v. Tafeen,

888 A.2d 204, 211 (Del.Supr. 2005). “Advancement is an especially important corollary to

indemnification” because it provides corporate officials with immediate interim relief from the

burden of paying for a defense. Id. “Although the right to indemnification and advancement are

correlative, they are separate and distinct legal actions.” Id. at 212. The right to advancement is not

dependent on the right to indemnification. Id. “A now long line of recent cases enforces mandatory

advancement provisions. These cases all stand for the proposition that a . . . bylaw . . . provision

mandating advancement in no way renders the right to advances dependent upon the right to

indemnity.” Stephen A. Radin, “Sinners Who Find Religion”: Advancement of Litigation Expenses

to Corporate Officials Accused of Wrongdoing, 25 REV .LITIG . 251, 268-69 (2006)(internal quotation

marks omitted).

Breach of Fiduciary Duty

In denying Aguilar’s request for advancement, Perspectiva’s board stated that Aguilar has

unclean hands because of his breaches of his fiduciary duties. Perspectiva presented evidence on this

4 These provisions are now codified as Section 8.104(a) and (c) of the Business Organizations Code. issue at the hearing on the motion to compel, and Aguilar refused to submit any opposing evidence.

Under Delaware law, advancement is allowed even when the official seeking advancement

is being sued by the corporation that must advance the litigation expenses. “Delaware case law is

replete with insider trading cases in which executives’ expenses are advanced despite allegations of

defrauding the corporation or its stockholders of millions of dollars.” James River Mgmt. Co., Inc.

v. Kehoe, 674 F.Supp.2d 745, 750 (E.D.Va. 2009). Advancement claims are frequently granted

when, as in this case, the corporation is suing an official for breach of fiduciary duty. See id., citing

Delaware law. The corporation cannot defend against the advancement claim on the ground that it

now believes the fiduciary to have been unfaithful because “it is in those very cases that the right to

advancement attaches most strongly.” Id. (internal quotation marks omitted); see also Kaung v. Cole

Nat’l Corp., 884 A.2d 500, 509 (Del.Supr. 2005)(indicating that the movant’s alleged conduct in the

underlying litigation is irrelevant during an advancement hearing). As the Delaware Court of

Chancery has pointed out:

It is not uncommon for corporate directors, officers, and employees to be sued for breach of the fiduciary duty of loyalty, and to have to defend claims that they took official action for the primary purpose of diverting corporate resources to their own pocketbooks . . . . Therefore, it is highly problematic to make the advancement right of such officials dependent on the motivation ascribed to their conduct by the suing parties. To do so would be to largely vitiate the protections afforded by [statutory] and contractual advancement rights.

Reddy v. Electronic Data Systems Corp., No. CIV.A. 19467, 2002 WL 1358761, at *5 (Del.Ch. June

18, 2002).

Delaware has been described as “the Mother Court of corporate law.” Kamen v. Kemper

Financial Services, Inc., 908 F.2d 1338, 1343 (7th Cir. 1990), rev’d on other grounds, 500 U.S. 90,

111 S.Ct. 1711, 114 L.Ed.2d 152 (1991). Courts throughout the country look to Delaware for

guidance on matters of corporate law. See Radin, supra, at 251; see also Neurobehaviorial Associates, P.A. v. Cypress Creek Hospital, Inc., 995 S.W.2d 326, 332 n.12 (Tex.App.--Houston [1st

Dist.] 1999, no pet.)(turning to Delaware corporate law for guidance regarding “winding-up” because

there were no Texas cases addressing the issue). The law of advancement, in particular, is “a

Delaware specialty.” Int’l Airport Ctrs., LLC v. Citrin, 455 F.3d 749, 750 (7th Cir. 2006)(Posner,

J.). “To the limited extent that there is law [regarding advancement] outside Delaware, it is the same

as the law in Delaware.” Radin, supra, at 271.

Despite Delaware’s expertise in this area, Perspectiva urges us not to follow Delaware law.

It claims that one Texas appellate court refused to follow Delaware on a related issue. See University

Savings Ass’n v. Burnap, 786 S.W.2d 423 (Tex.App.--Houston [14th Dist.] 1990, no writ). In

Burnap, the appellant cited a Delaware case and a New York case in support of its argument that the

appellee was not entitled to indemnification. In response to this argument, the Fourteenth Court of

Appeals simply stated, “The facts in each of these cases easily distinguish them from the instant case

and are not authority for the issue before us.” Id. at 426. Burnap does not indicate that Delaware

corporate law decisions should be disregarded when they are on point.

Perspectiva suggests that Delaware law is inconsistent with Texas law. He relies in part on

Bayliss v. Cernock, 773 S.W.2d 384 (Tex.App.--Houston [14th Dist.] 1989, writ denied). In Bayliss,

the court held that an officer who breached his fiduciary duties was not entitled to be indemnified

for his attorney’s fees. 773 S.W.2d at 388. As noted above, indemnification and advancement are

distinct legal concepts. Bayliss does not address advancement and thus does not stand for the

proposition that the entitlement to advancement hinges on proof that the director did not violate his

fiduciary duties.

Perspectiva also cites a 1979 decision in which the Sixth Court of Appeals held that corporate

officers could not use corporate funds to advance defense costs to officers who were charged with wrongdoing. See Texas Society v. Fort Bend Chapter, 590 S.W.2d 156, 158-59, 164 (Tex.Civ.App.--

Texarkana 1979, writ ref’d n.r.e.). The court stated that corporate officers “are not entitled to

indemnification pendente lite because there is no statutory provision authorizing the advancement

of expenses in connection with litigation against [them]. It is only at the conclusion of the litigation

and after which the officers . . . have been absolved from negligence or misconduct in performance

of duty that the corporation is authorized to indemnify them.” Id. at 164. This case was decided

before Article 2.02-1 of the Business Corporation Act was enacted. The Bar Committee comment

to Article 2.02-1 states that the statute was intended to “remedy a number of deficiencies and

ambiguities in the old law” and that the statute specified the circumstances in which advancement

would be allowed “thereby displacing the dictum to the contrary contained in Texas Society v. Fort

Bend Chapter, 590 S.W.2d 156 (Tex.Civ.App.--Texarkana 1979, writ ref’d n.r.e.).” TEX .BUS.

CORP .ACT ANN . art. 2.02-1, 1983 Bar Committee cmt. In other words, the Sixth Court’s holding

was superseded by Article 2.02-1(K). Perspectiva has not demonstrated that Delaware law regarding

advancement is inconsistent with Texas law.

Even if we follow Delaware law, Perspectiva contends that unclean hands is a recognized

defense to an advancement claim pursuant to the Homestore case. There, the corporation alleged

that a corporate officer sheltered his assets before seeking advancement, thus making it difficult or

impossible for the corporation to obtain reimbursement if the officer was eventually determined not

to be entitled to indemnification. Tafeen v. Homestore, Inc., No. CIVA. 023-N, 2004 WL 556733,

at *6 (Del.Ch. March 22, 2004). The Delaware Court of Chancery held that this allegation made out

an unclean hands defense. Id. 2004 WL 556733, at *6-*7. The court noted that the corporation’s

“unclean hands argument is unique in that it is based not in [the officer’s] conduct related to the

underlying claims, as previous unclean hands arguments have been based, but in his conduct in making the advancement claim itself.” 2004 WL 556733, at *6.

Although Perspectiva claims that Aguilar took actions for his own personal benefit at the

expense of the corporation, it does not claim, as the corporation did in Homestore, that he

deliberately sheltered his assets in anticipation of this litigation to prevent Perspectiva from obtaining

reimbursement of any advanced funds. The evidence submitted by Perspectiva relates to Aguilar’s

conduct in the underlying suit between the two parties. The Delaware Court of Chancery has

specifically rejected Aguilar’s unclean hands theory because it “would turn every advancement case

into a trial on the merits of the underlying claims of official misconduct.” Reddy, 2002 WL 1358761

at *9. Thus, whether referred to as “breach of fiduciary duty” or “unclean hands,” Aguilar’s conduct

in the underlying suit is irrelevant. See Kaung, 884 A.2d at 509.

Best Interests of the Corporation

Perspectiva’s board also cited the corporation’s best interests as a basis for denying

advancement. Perspectiva relies on the decision of a Pennsylvania federal district judge to establish

that this was a valid basis. See Fidelity Federal Savings and Loan Association v. Felicetti, 830

F.Supp. 262 (E.D.Pa. 1993). In Felicetti, a corporation sued its former president and vice president

for breach of fiduciary duties, fraud, and civil conspiracy. Id. at 263. The defendants requested

advancement of their defense costs pursuant to a mandatory advancement provision in the

corporation’s bylaws. Id. at 264. The corporation declined the request after concluding that it would

not be in the corporation’s best interests. Id. The judge concluded that the mandatory advancement

provision conflicted with the fiduciary duty to act only in the best interest of the corporation. Id. at

268-69. In resolving this conflict, the court determined that the directors’ fiduciary duties to act in

the corporation’s best interests would control, rendering the mandatory advancement provision

unenforceable. Id. at 269-70. As with Pennsylvania corporations, directors of Texas corporations have a fiduciary

relationship with the corporation. Pinnacle Data Services, Inc. v. Gillen, 104 S.W.3d 188, 198

(Tex.App.--Texarkana 2003, no pet.). And as in Felicetti, Perspectiva’s directors determined that

it would not be in the corporation’s best interests to advance Aguilar’s defense costs. Perspectiva

therefore argues that the advancement bylaw must yield to the board’s determination of the

corporation’s best interests.

The Third Circuit Court of Appeals has rejected Felicetti because “[r]arely, if ever, could it

be a breach of fiduciary duty on the part of corporate directors to comply with the requirements of

the corporation’s by-laws, as expressly authorized by statute.” See Ritter v. CityFed Financial Corp.,

47 F.3d 85, 87 (3rd Cir. 1995). A Pennsylvania intermediate appellate court also declined to follow

Felicetti. See Neal v. Neumann Medical Center, 667 A.2d 479, 481-82 (Pa.Cmwlth 1995), appeal

denied, 694 A.2d 624 (Pa. 1996). The court concluded that a mandatory advancement bylaw did not

conflict with the fiduciary duties imposed by Pennsylvania law. “Rather, it would appear that [the

corporation’s] directors can only act in the corporation’s best interests by implementing the

mandatory advancement provision, since the bylaws which contain it were presumably adopted for

[the corporation’s] benefit.” Id. at 482.

As a result of Ritter and Neal, Felicetti is not good law in its own district. Although that

would not prevent us from following it if we found its reasoning persuasive, we find Ritter and Neal

more convincing. Corporate directors should not be allowed to cite an ad hoc determination

regarding corporate “best interests” to pick and choose which bylaws they will enforce. We

therefore hold that advancement cannot be denied on the ground that Perspectiva now believes it is

not in the corporation’s best interests.

Ability to Repay The next two issues focus on the language of the bylaws. In construing the bylaws, we apply

the rules that govern the interpretation of contracts. See Hill v. Boully, No. 11-08-00289-CV, 2010

WL 2477868, at *1 (Tex.App.--Eastland June 17, 2010, no pet.)(mem. op.); Fortenberry v.

Cavanaugh, No. 03-07-00310-CV, 2008 WL 4997568, at *8 (Tex.App.--Austin Nov. 26, 2008, pet.

denied)(mem. op.); Burnap, 786 S.W.2d at 425. We attempt to harmonize and give effect to every

provision and we presume that the parties intended to impose reasonable terms. Somers v. Aranda,

322 S.W.3d 342, 345 (Tex.App.--El Paso 2010, no pet. h.); Nevarez v. Ehrlich, 296 S.W.3d 738, 742

(Tex.App.--El Paso 2009, no pet.). Accordingly, an interpretation that gives a reasonable meaning

to all parts is preferred over one that leaves a portion useless, insignificant, or “achieves a weird and

whimsical result.” Rowan Companies, Inc. v. Wilmington Trust Co., 305 S.W.3d 698, 708

(Tex.App.--Houston [14th Dist.] 2009, pet. filed)(internal quotation marks omitted). Indemnity

provisions, in particular, should be given a “common sense reading.” Lehmann v. Har-Con Corp.,

76 S.W.3d 555, 561-62 (Tex.App.--Houston [14th Dist.] 2002, no pet.).

If a bylaw is written so that it can be given a definite interpretation, it is not ambiguous and

the court will construe it as a matter of law. See Nevarez, 296 S.W.3d at 742. Not every difference

in interpretation amounts to an ambiguity; mere disagreement over the meaning of a provision does

not make the terms ambiguous. Id. Similarly, a lack of clarity in the language chosen by the parties

is insufficient to render a provision ambiguous. Id. And a bylaw is not ambiguous if its meaning

can be discerned by applying the rules of construction. See Quick v. Plastic Solutions of Texas, Inc.,

270 S.W.3d 173, 183 (Tex.App.--El Paso 2008, no pet.).

The first sentence of Section 12.4 of the bylaws states:

Reasonable expenses incurred by a person who . . . is . . . a named defendant . . . shall be paid or reimbursed by the Corporation, in advance . . . after the Corporation receives a written affirmation by the director . . . of his good faith belief that he has met the standard of conduct necessary for indemnification under this Article in a written undertaking by or on behalf of the person to repay the amount paid or reimbursed if it is ultimately determined that he has not met that standard . . . . [Emphasis added].

Focusing on the word “shall,” Aguilar asserts that Perspectiva was required to advance his

defense costs once he provided his written undertaking to repay the funds. However, the last

sentence of Section 12.4 states, “The written undertaking may be accepted without reference to

financial ability to make repayment.” [Emphasis added]. Perspectiva contends that the word “may”

in this sentence denotes a discretionary act, rather than a mandatory one. Therefore, Perspectiva

argues, the board of directors had the discretion to refuse advancement if it determined that Aguilar

would not be able to repay the advanced funds if he ultimately loses in the underlying litigation.

Perspectiva’s board made just such a determination when it denied the request for advancement.

Although the word “shall” is generally construed to be mandatory, it may be construed as

directory. In the matter of J.L.W., 919 S.W.2d 841, 842 (Tex.App.--El Paso 1996, no

writ)(construing a statute). Similarly, the word “may” is generally construed as permissive, but can

be interpreted as mandatory depending on the context in which it is used. See Ramsay v. Texas

Trading Co., Inc., 254 S.W.3d 620, 631 (Tex.App.--Texarkana 2008, pet. denied); Buttles v.

Navarro, 766 S.W.2d 893, 894 (Tex.App.--San Antonio 1989, no writ)(construing a statute); see

also Bocquet v. Herring, 972 S.W.2d 19, 20 (Tex. 1998)(stating that a statute providing that a party

“may recover” attorney’s fees is mandatory).

Viewing Section 12.4 as a whole, we conclude that Aguilar’s interpretation is correct. The

structure of the first sentence (providing that the director “shall be paid . . . after the Corporation

receives a . . . written undertaking”) indicates that Perspectiva has a mandatory duty to advance

defense costs after it receives the written undertaking. Although the last sentence provides that the undertaking “may be accepted,” it does not condition Perspectiva’s duty to pay on whether

Perspectiva accepts the undertaking.

Moreover, Aguilar’s interpretation is logical, taking the purpose of advancement into

consideration. The last sentence of Section 12.4 contains a verbatim quote from Article 2.02-1 of

the Business Corporation Act. See TEX .BUS.CORP .ACT ANN . art. 2.02-1(L)(“It may be accepted

without reference to financial ability to make repayment.”). The Bar Committee comment to this

Article states that it was based on the 1980 revision to Section five of the Model Business

Corporation Act and refers to the official commentary for that revision. TEX .BUS.CORP .ACT ANN .

art. 2.02-1, 1983 Bar Committee cmt. This official commentary provides, “The revision makes it

clear that the undertaking need not be secured and that financial ability to repay is not a prerequisite,

on the ground that it is not fair to favor wealthy directors who may be in less need of financial

assistance in mounting their defense over directors whose financial resources are modest.”

Committee on Corporate Laws, Changes in the Model Business Corporation Act Affecting

Indemnification of Corporate Personnel, 36 BUS. LAW . 99, 115 (1980).

Entitlement to Attorney’s Fees

Perspectiva’s board also concluded that the advancement provision does not cover attorney’s

fees. Section 12.4 requires the advancement of “reasonable expenses” without defining that term.

Perspectiva contends that when Section 12.4 is read in conjunction with Section 12.1, it is clear that

“reasonable expenses” does not include attorney’s fees.

The first sentence of Section 12.1 requires Perspectiva to indemnify a corporate officer who

is a defendant in a legal proceeding “against all judgments, penalties (including excise and similar

taxes), fines, settlements and reasonable expenses actually incurred by the person, including

attorney’s fees actually and reasonably incurred by him in connection therewith.” But the second sentence provides that in certain circumstances, such as if the officer is found liable to the

corporation, indemnification “is limited to reasonable expenses actually incurred . . . .” Perspectiva

argues that this language treats “reasonable expenses” and “attorney’s fees” as two separate and

distinct categories of reimbursements, so that “reasonable expenses” does not include attorney’s fees.

Moreover, because Section 12.4 omits the phrase “including attorney’s fees actually and reasonably

incurred by him in connection therewith,” Perspectiva contends that attorney’s fees are not subject

to advancement. A more natural reading of the language is that the first sentence of Section 12.1

defines the term “reasonable expenses” to include attorney’s fees and that definition applies to future

references to “reasonable expenses” in the second sentence of Section 12.1 and in Section 12.4.

Perspectiva’s interpretation renders Section 12.4 insignificant and practically useless. See

Rowan Companies, Inc., 305 S.W.3d at 708 (holding that contracts should not be construed so as to

leave a portion useless or insignificant or to achieve a weird and whimsical result). The purpose of

advancement is to relieve corporate officials from the “burden of paying the significant on-going

expenses” involved in litigation. Homestore, 888 A.2d at 211. As Aguilar aptly notes, “The burden

of litigation comes from attorney’s fees, not copying costs.” Accordingly, we hold that Perspectiva

was required to advance Aguilar’s reasonable expenses, including attorney’s fees, once he tendered

his written undertaking to repay the advanced funds.

Procedural Vehicle for Seeking Advancement

Perspectiva urged the trial judge to deny Aguilar’s “motion to compel” advancement because

such a motion is not recognized by any Texas legal authority. The judge rejected this procedural

objection and proceeded to the merits of Aguilar’s motion.

Perspectiva cites one case in support of its argument that the motion to compel was not the

correct procedural vehicle for seeking advancement. See Bayoud v. Bayoud, 797 S.W.2d 304 (Tex.App.--Dallas 1990, writ denied). In Bayoud, the appellants argued that the trial court erred in

refusing to grant a “motion for indemnification.” Id. at 317. In upholding the trial court’s decision,

the appellate court stated that the motion “was a wholly ineffective and inappropriate method for

seeking the relief asked for.” Id. The court stated that the proper vehicle for determining indemnity

would have been a cross-claim or a separate suit. The court further held that the motion was

premature because the right to indemnity would not arise until the judgment was rendered or paid.

Id. Bayoud is distinguishable because Aguilar’s motion sought to compel advancement, rather than

indemnification, and because the trial court found no defect in the procedural vehicle chosen by

Aguilar. And unlike in Bayoud, Aguilar did not present a stand-alone motion, but submitted his

motion to compel after first filing a counterclaim for advancement.

Perspectiva also contends here, as it did in the trial court, that there were recognized

procedural vehicles available to Aguilar, such as a motion for a temporary injunction or a motion for

summary judgment. Perspectiva does not explain why a temporary injunction proceeding would

have been a proper way for Aguilar to obtain advancement, nor does it address why Aguilar should

have been required to meet the onerous requirements for a temporary injunction. See Butnaru v.

Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002)(stating that a temporary injunction is an

extraordinary remedy that is designed to preserve the status quo and that requires, among other

things, proof of irreparable injury); RP&R, Inc. v. Territo, 32 S.W.3d 396, 401 (Tex.App.--Houston

[14th Dist.] 2000, no pet.)(holding that a temporary injunction that changes the status quo should be

granted only in the case of extreme hardship).

However, a summary judgment motion would have been an appropriate procedural vehicle.

Aguilar could have filed a motion for summary judgment on his counterclaim for advancement,

attaching copies of the applicable bylaws and his written undertaking. He does not explain why he chose not to file a motion for summary judgment, nor does he cite any case from any jurisdiction

approving the use of a motion to compel for this purpose. Aguilar’s choice of this procedural vehicle

is strange, given that he emphasizes the need for advancement provisions to be enforced in a

summary fashion. Summary judgment proceedings are, as the name suggests, “summary.”

Furthermore, many of the decisions cited by Aguilar were made at summary judgment. See, e.g.,

Homestore, 888 A.2d at 208; Morgan v. Grace, No. Civ.A. 20430, 2003 WL 22461916, at *1

(Del.Ch. Oct. 29, 2003)(“Summary judgment is an effective vehicle for deciding the advancement

of legal fees . . . .”); see also DEL.CODE ANN . tit. 8, § 145(k)(“The Court of Chancery may

summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees)).”

In the motion to compel advancement, Aguilar argued that he was entitled to an order

requiring immediate advancement of litigation costs. He attached his own affidavit, along with

copies of Perspectiva’s bylaws, counsel’s letter requesting advancement, and invoices for attorney’s

fees. Despite the name applied to it, this motion was in effect a summary judgment motion. See

TEX .R.CIV .P. 166a(a), (c). Perspectiva acknowledges as much, stating in its brief that Aguilar

“sought a ‘matter of law’ ruling based on documentary evidence and affidavits” and that the motion

therefore “approximates a motion for summary judgment.” Perspectiva does not argue that it was

prejudiced in any way by the name of the motion.

The proper objective of procedural rules “is to obtain a just, fair, equitable and impartial

adjudication of the rights of litigants under established principles of substantive law.” [Emphasis

added]. See Tex.R.Civ.P. 1. Accordingly, the nature of a motion is determined by its substance, not

its caption. In re Brookshire Grocery Company, 250 S.W.3d 66, 72 (Tex. 2008)(orig. proceeding);

cf. State Bar of Texas v. Heard, 603 S.W.2d 829, 833 (Tex. 1980)(orig. proceeding)(looking to the

substance of a “motion for summary judgment” to conclude that it was not in fact such a motion). Although the trial judge could have required Aguilar to bring his request as a summary judgment

motion, she chose instead to proceed to the merits of the motion. If we denied mandamus relief on

the basis of Aguilar’s procedural misstep, we presume that he would re-file his request for relief in

the trial court as a summary judgment motion, the trial judge would reach the same result as before,

and Aguilar would seek mandamus review of the denial of the summary judgment motion. Thus,

it would serve no useful purpose--and would elevate form over substance--to deny mandamus relief

on the ground that Aguilar gave the wrong name to his motion.

EQUITABLE CONSIDERATIONS

Perspectiva argues that mandamus relief should be denied on equitable grounds because

Aguilar hindered the proceedings in the trial court and mischaracterized those proceedings in his

mandamus petition. “[M]andamus relief is largely controlled by equitable principles.” In re Laibe

Corp., 307 S.W.3d 314, 318 (Tex. 2010)(orig. proceeding)(internal quotation marks omitted).

A hearing on Aguilar’s motion to compel advancement was held on June 7, 2010. The trial

court concluded that Aguilar’s entitlement to advancement turned on whether he had met the

standard necessary for indemnification under Perspectiva’s bylaws and whether he would have the

ability to repay the advanced funds. The court offered to continue the hearing so Aguilar could be

present and offer testimony. Aguilar’s counsel rejected the court’s offer of a continuance because

he believed that the issues identified by the court are not relevant to Aguilar’s claim for

advancement. The court stated that counsel was “putting the Court in a quandary because you want

me to rule and I am asking -- I don’t have enough. I don’t have enough, so I guess I am not going

to rule because I don’t have enough evidence. So you can either bring more evidence or just

abandon it, I guess.” Aguilar’s counsel thanked the court and they moved on to a discovery motion.

At the end of the hearing, the judge repeated that she wanted to continue the hearing on the issue of advancement and then concluded with the statement, “Okay. So we take it from there.”

A few days after the hearing, Aguilar’s counsel circulated an order denying the motion to

compel advancement. Perspectiva’s attorney responded by letter, stating his understanding that the

court had not ruled on the motion and was awaiting evidence from Aguilar. On June 14, Aguilar

filed a motion for entry of the order, and a hearing was set for August 10. At the hearing, the judge

agreed to sign the order, but did not have a copy of it that was suitable for signing. Aguilar’s counsel

asked the court if he could circulate a copy of the order only to Perspectiva’s attorney and not to

other attorneys in the case who are not involved in this dispute. The court said that would be “[n]o

problem.” The next day, Aguilar’s counsel submitted to the court an order that had been approved

by Perspectiva’s attorney. On August 25, Aguilar’s counsel sent a letter to the court, inquiring about

the status of the order.

On August 30, 2010, Aguilar filed a mandamus petition in this court, asserting that the trial

court abused its discretion by denying the motion to compel advancement and by refusing to enter

an order. At a hearing the next day, the judge stated that her court coordinator had advised Aguilar’s

attorney’s staff that his order could not be signed because it had not been approved by every attorney

who was at the previous hearing. All the attorneys approved the order during the August 31 hearing

and the judge immediately signed it. On September 1, Aguilar filed an amended mandamus petition,

omitting his complaint about the lack of a written order. However, the amended petition asserts that

the judge’s error in denying advancement “is compounded by [her] failure to enter an order

memorializing her decision for almost three months.”

Perspectiva contends that Aguilar hindered the trial court proceedings by refusing to present

evidence on the issues identified by the trial judge and by failing to submit an appropriate order. He

then mischaracterized the proceedings in his mandamus petition by blaming the trial judge for the delay. For the reasons explained above, Aguilar’s entitlement to indemnification and his ability to

repay the advanced funds are irrelevant to his claim for advancement. Therefore, Aguilar did not

hinder the trial court proceedings by refusing to submit evidence on these issues. Our review of the

transcript, set forth above, reveals that the status of Aguilar’s motion was uncertain at the conclusion

of the June 7, 2010 hearing. Because of this uncertainty, Aguilar did not act inappropriately in

attempting to get a definitive ruling by circulating an order denying the motion, just as Perspectiva

did not act inappropriately in refusing to approve the order on the ground that the judge had not

actually made a ruling. Aguilar did not delay in filing a motion for entry of the order, which was set

for a hearing on August 10. Considering that there was a dispute between counsel, it was a bit of

a stretch for Aguilar to blame the judge for the entire period between June 7 and August 10.

However, the remaining delay was evidently due to miscommunication between the judge and her

court coordinator. The judge stated at the August 10 hearing that she would sign an order that had

only Perspectiva’s approval, and Aguilar submitted such an order the next day. When the judge still

did not sign the order, he made an inquiry on August 25, before seeking mandamus relief on this

ground on August 30. At the hearing on August 31, the judge chastised Aguilar’s counsel for failing

to obtain the approval of all of the attorneys on the case, apparently forgetting she had told counsel

that these approvals were unnecessary. While accusing Aguilar of mischaracterizing the record and

of failing to submit an appropriate order, Perspectiva fails to acknowledge that the judge expressly

granted Aguilar permission to submit an order without the approval of every attorney on the case.

In summary, both sides have unsurprisingly presented the procedural history in a way that

most favors their positions. But neither side has acted in a manner that would justify us in making

a decision to grant or deny relief on the ground that the record was mischaracterized.

INADEQUACY OF APPELLATE REVIEW Perspectiva maintains that adequate appellate remedies exist. It points out that an immediate

appeal would be available if Aguilar had sought a temporary injunction. See TEX .CIV .PRAC.&REM .

CODE ANN . § 51.014(a)(4)(West 2008). Similarly, Aguilar would have a final judgment to appeal

if he had pursued advancement in a separate lawsuit, rather than as a counterclaim. As explained

above, there is no basis for requiring Aguilar to meet the requirements for a temporary injunction.

Furthermore, it was proper for Aguilar to raise advancement as a counterclaim. See TEX .R.CIV .P.

97(a), (b). Although there may have been other ways for Aguilar to pursue his claim in the trial

court, Perspectiva does not cite any authority for the proposition that the adequacy of appellate

remedies should be based on a hypothetical procedural posture.

Perspectiva argues that even when the actual procedural posture is considered, appeal is an

adequate remedy: If Aguilar prevails at trial, the trial court could then order that he be paid for his

litigation expenses; if he loses at trial, he could raise the advancement issue on appeal. This

argument is unconvincing. By its very nature, advancement of expenses can occur only during the

course of the trial court proceedings. See Morgan, 2003 WL 22461916, at *1 (“The value of the

right to advancement is that it is granted or denied while the underlying action is pending.”). It is

indemnification of expenses that occurs at the conclusion of the case. Thus, Aguilar’s advancement

claim will be effectively moot at the conclusion of the case. See Reddy, 2002 WL 1358761 at *9

(stating that trying a claim for advancement “simultaneous with the trial of the same lawsuits for

which the corporate official is seeking provisional payment of his litigation expenses . . . results in

an unacceptable cost: the effective elimination of the separate right of advancement”); cf. In re

McAllen Medical Center, 275 S.W.3d at 465 (“The most frequent use . . . of mandamus relief

involves cases in which the very act of proceeding to trial--regardless of the outcome--would defeat

the substantive right involved.”). Discussing the adequacy of appellate review, the Texas Supreme Court has stated:

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.

Prudential, 148 S.W.3d at 136. In Prudential, the trial court refused to enforce a contractual waiver

of the right to trial by jury. Id. at 127. The court held that mandamus relief was “not only

appropriate but necessary.” Id. at 138. It was an issue of first impression that eluded answer by

appeal. Id. Furthermore, the denial of this contractual right could not be effectively remedied on

appeal. If the relator obtained a favorable jury verdict, it could not appeal, and its contractual right

would be lost forever. Id. If the trial resulted in an unfavorable verdict, the relator could not obtain

reversal for the erroneous denial of its contractual right unless it could show that the error probably

caused the rendition of an improper judgment. Id., citing TEX .R.APP .P. 44.1(a)(1). If the relator

could meet this standard, it still would have lost part of its contractual right by being subjected to

the procedure it agreed to waive. Id.

What the Supreme Court said in Prudential is applicable here. We are presented with an

issue of first impression for this State. If Aguilar obtains a favorable jury verdict, he cannot appeal,

and his right to advancement will be lost forever. If the verdict is unfavorable to him, it would be

difficult for Aguilar to establish how the denial of advancement prejudiced his case and thereby

constitutes reversible error. Even if he met this standard, the full value of the right to advancement

would already be lost. Accordingly, we conclude that Aguilar does not have an adequate remedy by

appeal. CONCLUSION

The petition for a writ of mandamus is conditionally granted. The writ will issue only if the

trial court refuses to vacate its order denying Aguilar’s motion to compel advancement and to enter

an order granting the motion.

April 13, 2011 ANN CRAWFORD McCLURE, Justice

Before Chew, C.J., McClure, J., and Barajas, C.J. (Ret.) Barajas, C.J. (Ret.), sitting by assignment