in Re Wiley McIntire, Paul McIntire, Kathy Topper, Jan Woods (f/K/A Jan Luster), Jackie Leanne Clementz (f/K/A Jackie Leanne Wade), and Gary Burdette Wade, Relators

• Court: Court of Appeals of Texas
• Decided: January 5, 2023
• Docket: 07-22-00249-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-22-00249-CV

IN RE WILEY MCINTIRE, PAUL MCINTIRE, KATHY TOPPER, JAN WOODS (F/K/A JAN LUSTER), JACKIE LEANNE CLEMENTZ (F/K/A JACKIE LEANNE WADE), AND GARY BURDETTE WADE, RELATORS

ORIGINAL PROCEEDING

January 5, 2023

MEMORANDUM OPINION Before QUINN, C.J., and PARKER and MESSER, 1 JJ.

Wiley McIntire, Paul McIntire, Kathy Topper, Jan Woods (f/k/a Jan Luster), Jackie

Leanne Clementz (f/k/a Jackie Leanne Wade), and Gary Burdette Wade (the McIntires)

challenge two rulings through their petition for writ of mandamus. The rulings were issued

by the Honorable Steven R. Emmert, 31st Judicial District Court (trial court). They ask us

to direct the trial court to vacate its 1) August 9, 2022 Order “Denying Beneficiaries’

Emergency Motion to Compel Deposit of Remaining Trust Assets into Court’s Registry”

1 Honorable Stuart Messer, 100th Judicial District Court, sitting by assignment. and 2) January 27, 2022 Order on “Motions for Partial Summary Judgment.” We deny

the petition.

Standard of Review

The burden lies with the one petitioning to prove his entitlement to a writ of

mandamus. In re Scott Xxxx, No. 07-22-00160-CV, 2022 Tex. App. LEXIS 3823, at *2

(Tex. App.—Amarillo June 7, 2022, orig. proceeding) (mem. op.). Furthermore, such

relief is available only to correct a clear abuse of discretion when there is no adequate

remedy at law by appeal. In re Garza, No. 07-22-00262-CV, 2022 Tex. App. LEXIS 8059,

at *2 (Tex. App.—Amarillo Oct. 31, 2022, orig. proceeding) (mem. op.). That said, we

turn to the proceeding at hand and begin with the partial summary judgment.

Partial Summary Judgment

Generally, a writ of mandamus is unavailable as a means to review a partial

summary judgment. In re United Servs. Auto. Ass’n, 307 S.W.3d 299, 314 (Tex. 2010)

(orig. proceeding); In re Alvarez, No. 01-19-00499-CV, 2019 Tex. App. LEXIS 6482, at *2

(Tex. App.—Houston [1st Dist.] July 30, 2019, orig. proceeding) (mem. op.); In re Brown,

No. 05-19-00877-CV, 2019 Tex. App. LEXIS 642, at *2–3 (Tex. App.—Dallas July 25,

2019, orig. proceeding) (mem. op.); In re Robison, 335 S.W.3d 776, 783 (Tex. App.—

Amarillo 2011, orig. proceeding). Yet, generally does not mean always. In re Robison,

335 S.W.3d at 783; accord In re United Servs. Auto. Ass’n, 307 S.W.3d at 314 (directing

the trial court to grant a summary judgment wherein which the movant alleged the want

of subject-matter jurisdiction). As the Supreme Court revealed, utilizing mandamus to

review a decision rendered upon a summary judgment motion may be appropriate when

it ends the litigation. See In re United Servs. Auto. Ass’n, 307 S.W.3d at 314 (quoting In

2 re McAllen Med. Ctr., 275 S.W.3d 458, 465 (Tex. 2008) (orig. proceeding), and stating

the rule against reviewing summary judgment through a mandamus “is based in part on

the fact that ‘trying a case in which summary judgment would have been appropriate does

not mean the case will have to be tried twice’—a justification not applicable here”); In re

McAllen Med. Ctr., Inc., 275 S.W.3d at 465–66 (stating that “insisting on a wasted trial

simply so that it can be reversed and tried all over again creates the appearance . . . that

[courts] don’t know what they are doing” and “[s]itting on our hands while unnecessary

costs mount up contributes to public complaints that the civil justice system is expensive

and outmoded”). We too have recognized this when observing that “[i]n those cases

where the benefits of mandamus relief outweigh the detriments, an appellate court should

not allow the hyper-technical application of procedural devices and constructs to thwart

the rule of law and the ends of justice.” In re Robison, 335 S.W.3d at 783 (where refusing

to review the summary judgment ruling allowed “an almost four-year-old personal injury

cause of action” to be “put on hold while the parties litigate an unenforceable settlement

agreement” and “all parties, including both the trial court and this Court, will be forced to

endure the delay, cost, and expense of both the litigation and inevitable appeal of nothing

more than an unenforceable oral settlement of the abated personal injury cause of

action”). Those are not the circumstances here, however.

The summary judgment at bar was and is partial. It dealt with the limitations period

applicable to some claims, namely compliance with the duty to annually account. Many

other purported instances of misfeasance urged by the McIntires would still require

adjudication. So, assuming arguendo the summary judgment was wrong, effectively

reversing it (or directing the trial court to do so) would not end the litigation.

3 Moreover, if review of the partial judgment were pivotal to the efficacious

disposition of the suit, question arises as to why the McIntires waited slightly over seven

months to seek it through mandamus. While a writ of mandamus may not be an equitable

remedy, equitable principles influence its issuance. In re Abney, 486 S.W.3d 135, 138

(Tex. App.—Amarillo 2016, orig. proceeding). One such principle requires the petitioner

to act diligently. Id. Unjustified delays in seeking mandamus relief may result in its loss.

Id. The McIntires do not offer a justification for waiting the seven months to petition us

for intervention. As we noted in Abney, unjustified delays of four and six months have

warranted denial of relief. Id. at 139. The seven-month unexplained delay falls within the

same category. And, we find it difficult to say no one suffered harm from it. Apparently,

the cause was set for trial in October 2022. Petitioning for a writ of mandamus interfered

with that setting. Had trial then occurred, the vindication of all rights and interests involved

may well have occurred. Now, all must suffer the passage of more time before final

adjudication of this over two-year-old suit.

In sum, we deny that portion of the petition for writ of mandamus wherein the

McIntires seek review of the partial summary judgment.

Order Regarding Disgorgement of Fees and Sequestration of Trust Assets

The remaining aspect of the trial court’s order under attack involves its refusal to

enter an interlocutory order. The McIntires sued Gary Jahnel, individually and as trustee

of the Horace Lee (Jack) Daughtry Family Trust, alleging about twenty instances of

purported misfeasance as trustee. As part of that litigation, the McIntires moved for an

order seeking two forms of interim relief. First, they asked the trial court to direct Jahnel

to disgorge or reimburse the trust for attorney’s fees paid from trust assets to the attorneys

4 defending him against their claims. Second, they sought an order directing him to deposit

the trust corpus into the registry of the trial court pending trial. The trial court refused to

do either. That decision supposedly constituted a clear abuse of discretion for which they

lacked an adequate legal remedy, thereby warranting our intervention through a writ of

mandamus. We disagree.

First, and as previously said, mandamus issues upon the petitioner establishing

two elements. One is the presence of clearly abused discretion on the part of the trial

court. The second is the absence of an adequate legal remedy by appeal. Regarding

the latter, the McIntires urge that appeal is an inadequate legal remedy because “[i]f

Jahnel is unable to respond to a judgment for damages, an appeal will provide

Beneficiaries with no adequate remedy.” 2 This argument implicitly injects aspects of a

different type of relief into the mix. The relief of which we speak is a temporary injunction.

And, one of the conditions to securing it entails proving that the movant faces the risk of

irreparable injury. See Abbott v. Anti-Defamation League, 610 S.W.3d 911, 916 (Tex.

2020) (per curiam) (quoting Butnaru v. Ford Motor Co., 84 S.W.3d 198, 204 (Tex. 2002),

and noting that the elements for securing a temporary injunction include a probable,

imminent, and irreparable injury in the interim); see also Butnaru, 84 S.W.3d at 204

(stating that injury is irreparable when the injured party cannot be adequately

compensated in damages or the damages cannot be measured). Simply put, the

McIntires urge that appeal is an inadequate remedy because they risk irreparable injury.

The latter comes in the form of Jahnel purportedly having insufficient assets to reimburse

2 Indeed, many of the reasons for saying they lack an adequate legal remedy have foundation in Jahnel’s purported inability to pay damages or reimburse the trust for monies expended to pay legal fees.

5 the trust for attorney’s fees it paid in defending him. Having insufficient assets means the

monies expended from the trust will be beyond reparation by him.

Assuming the temporary injunction lens to be an appropriate means of analyzing

a mandamus question, the McIntires’ argument would seem influential only if Jahnel could

not respond to an award of damages. Logically, if he could so respond, then there would

be no need to act in the interim. In other words, assets would be available to pay what

they fear would be lost. Yet, the McIntires directed us to no evidence indicating Jahnel

lacked the ability to reimburse the attorney’s fees paid or to be paid as the trial

progressed. Nor did we find any. 3 Indeed, at the hearing below, they represented to the

trial court that they do not know if he could or could not so respond. That means the

financial risk they claim to face is mere speculation, and, speculation does not prove

impending injury. Town of Flower Mound v. EagleRidge Operating, LLC, No. 02-18-

00392-CV, 2019 Tex. App. LEXIS 7561, at *15 (Tex. App.—Fort Worth Aug. 22, 2019, no

pet.) (mem. op.) (stating that because the record “is devoid of evidence demonstrating

loss of goodwill or other intangible losses potentially associated with a disruption of

business,” the argument about irreparable injury “is nothing but speculation”).

Concerning the element of clearly abused discretion, we must remember what that

means. Our Supreme Court described it as a decision so arbitrary and unreasonable that

it amounts to a clear and prejudicial error of law. In re K & L Auto Crushers, LLC, 627

S.W.3d 239, 247 (Tex. 2021) (orig. proceeding) (quoting In re State Farm Lloyds, 520

S.W.3d 595, 604 (Tex. 2017) (orig. proceeding)). And, for the decision to fall within that

3Nor did they argue that the legal remedy of appeal would remain insufficient even if Jahnel could respond to an award of damages.

6 realm, the petitioning party must show that the trial court had but one way to rule under

the circumstances present. Id.

Here, the particular decision under attack has several facets. The most obvious is

that concerning the effect of a trustee’s breach of fiduciary duty upon the right to

reimbursement of litigation expenses from trust assets. A second involves the

interlocutory nature of the suit in question. A third reflects the numerous instances of

purported breach alleged by the trust beneficiaries. Another implicates the absence of

any formal adjudication or finding of misfeasance regarding any of the multiple allegations

of misconduct. A fifth concerns the obligations of a trial court to sequester trust assets,

to direct the return of attorney’s fees already paid from the trust, and to refuse further

payment as the parties prepare for a formal and final adjudication of claims. It is against

the backdrop of these many facets that we decide whether the McIntires carried their

burden of proving a clear abuse of discretion, i.e., that the trial court had no choice but to

order disgorgement and sequestration.

Their effort to carry that burden consisted of citing authority recognizing a trial

court’s ability to act. See, e.g., TEX. PROP. CODE ANN. § 114.008(a); 760 ILCS 3/1001;

Castilleja v. Camero, 414 S.W.2d 431 (Tex. 1967). Yet, the two statutes they mentioned

speak of what the trial court “may” do to “remedy a breach of trust.” TEX. PROP. CODE

ANN. § 114.008(a); 760 ILCS 3/1001(b). Neither specify what a court must do. Nor do

they mandate a court to sequester the trust estate, order the reimbursement of previously

paid fees, and effectively place the trustee in the position of funding his own defense

against claims which may ultimately prove baseless. In short, the implementation of any

remedies mentioned in the two statutes is discretionary, and none required the court to

7 grant the relief sought by the McIntires. See Duncan v. O’Shea, No. 07-11-0088-CV,

2012 Tex. App. LEXIS 6494, at *18 n.12 (Tex. App.—Amarillo Aug. 7, 2012, pet. denied)

(mem. op.) (observing that the word “may” is discretionary).

The same is true of Castilleja. The Supreme Court did say that a trial court “can

order payment of the disputed funds into its registry until its ownership is determined.”

Castilleja, 414 S.W.2d at 433. It did not say that the trial court must do so. Moreover, in

Castilleja, liability had been adjudicated, unlike here. Through a final judgment, the trial

court had awarded Camero $17,000. The dispute apparently then became twofold. One

aspect involved ownership of $17,000 found in a Mexico bank. The other concerned the

availability of that sum to satisfy the claim of the judgment creditor. Castilleja had nothing

to do with a trust, breach of fiduciary duties, or barring the trustee from utilizing trust

assets to pay litigation expenses incurred in defending against allegations of misfeasance

(as the trustee) which may or may not be legitimate. These circumstances make the

opinion rather inapposite to the case at hand.

Other authority cited as purportedly mandating the relief sought were T & R

Assocs., Inc. v. Amarillo, 601 S.W.2d 178, 180 (Tex. Civ. App.—Amarillo 1980, no writ),

and Rattikin Title Co. v. Grievance Comm. of State Bar, 272 S.W.2d 948, 955 (Tex. Civ.

App.—Fort Worth 1954, no writ). But, like Castilleja, neither involved a trust,

unadjudicated allegations of breached fiduciary duty by a trustee, or effort to disgorge

and sequester trust property pending final disposition of the allegations. Rather, Rattikin

concerned a temporary injunction to bar a title company “from preparing legal instruments

as a part of any transaction to which it was not itself a party or the agent of a party.”

Rattikin Title Co., 272 S.W.2d at 949. In turn, the T & R court was asked to review a

8 temporary injunction “restraining T & R Associates, Inc., from operating a lounge in

violation of zoning and building code ordinances.” T & R Assocs., Inc., 601 S.W.2d at

179. Admittedly, T & R utters the proposition about a trial court having the duty to restrain

a violation of the law. Id. at 180. But, it certainly does not say through that general

proposition that there was only one way to restrain the violation. We did not say in T & R

that the trial court must sequester trust assets and order the disgorgement of previously

paid fees while awaiting the ultimate adjudication of claims about misfeasance.

And, returning to the pendente lite nature of the case and McIntires’ request, we

cannot ignore the trial court’s concern for it. Petitioner’s counsel devoted a good part of

his argument discussing the general rule about a trustee losing trust assets as a source

of payment for litigation expenses in certain situations. As he did, the trial court asked:

“But doesn’t that hinge on the fact that there hasn’t been determination made that he has

breached it . . . [?]” Counsel attempted to assuage the trial court of its concern. He did

so by referring it to purportedly new and undisputed evidence proving that Jahnel at least

thrice breached his fiduciary duties. Setting aside opposing counsel’s disagreement with

the representation, two facts remained true. First, petitioner’s counsel did not direct the

trial court to authority implementing the alleged general rule pendente lite. Second, there

had and has been no formal adjudication that any breach occurred. So, given the rule

that “a trustee may charge the trust for attorney’s fees the trustee, acting reasonably and

in good faith, incurs defending charges of breach of trust,” Moody Found. v. Estate of

Moody, No. 03-99-00034-CV, 1999 Tex. App. LEXIS 8597, at *15–16 (Tex. App.—Austin

Nov. 18, 1999, pet. denied) (mem. op.), a finding of breach would seem a prerequisite to

barring a trustee from turning to the trust for payment.

9 In short, the legal authority offered does not establish that the trial court had but

one choice, which was to grant the specific relief sought by the McIntires. This is not to

say the court is unable to fashion other relief which protects all involved as this aging suit

winds its way to final disposition. 4 It is to say that the McIntires failed to prove their

entitlement to a writ of mandamus when the trial court denied their motion below.

We deny the request for a writ of mandamus. Our September 9, 2022 order

granting ‘preliminary temporary relief in this original proceeding’ is vacated.

Brian Quinn Chief Justice

4 It appears that a final hearing was set for October 2022. Before then, though, the McIntires filed the current petition for mandamus relief. Whether it or some other reason prevented the trial from occurring is unclear.