In re Lesikar

285 S.W.3d 577

In re Woody K. LESIKAR, as Trustee of the Woodrow V. Lesikar Family Trust, Trustee of the Woody K. Lesikar Special Trust, and Independent Executor of the Estate of Woodrow V. Lesikar, Relator.

No. 14-09-00016-CV.

Court of Appeals of Texas, Houston (14th Dist.).

May 7, 2009.

J. Stephen Barrick, Houston, and Joe Alfred Izen, Bellaire, for Appellants.

Brett Wagner, Bobbie G. Bayless, David W. Holman, Houston, and Vaughn O. Stewart, Lake Jackson, for Appellees.

Panel consists of Justices YATES, GUZMAN, and SULLIVAN.

OPINION

EVA M. GUZMAN, Justice.

In this original proceeding, relator Woody K. Lesikar, as trustee of the Woodrow V. Lesikar Family Trust, trustee of the Woody K. Lesikar Special Trust, and independent executor of the Estate of Woodrow V. Lesikar, seeks a writ of mandamus ordering the Honorable Robert May, presiding judge of the 149th District Court of Brazoria County, to vacate his January 5, 2009 order that (1) granted the motion filed by real party in interest, Carolyn Ann Lesikar Moon, individually and as named trustee of the Carolyn Ann Lesikar Moon Special Trust, to strike the case from the jury docket; (2) denied Woody's motion for continuance of the trial; and (3) denied, in part, Woody's motion to compel discovery. We conditionally grant the petition in part, and deny it in part.

I. BACKGROUND

Because this case has made more than one journey through the appellate courts, a brief summary of the facts and the case's history is helpful in understanding not only the procedural posture in which it now comes before us, but also in distinguishing matters that have been finally resolved from those that remain at issue.

Carolyn Moon and Woody Lesikar are siblings. Their father, Woodrow V. Lesikar, established the Woodrow V. Lesikar Family Trust (the "Family Trust"), and provided that upon his death, separate special trusts would be created for his widow, his grandchildren, Carolyn, and Woody. See Moon v. Lesikar, 230 S.W.3d 800, 802 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). Specific assets or amounts were to be transferred from the Family Trust to various trusts and charities, and the remainder was to be divided equally between Woody and Carolyn and distributed to their respective special trusts. Id. After her father's death, Carolyn sued Woody for construction of trust, declaratory judgment, an accounting, appointment of a receiver, injunctive relief, negligence, breach of fiduciary duty, conversion, and civil conspiracy. Id.

A. First Trial

Woody obtained partial summary judgment on some of Carolyn's claims; those claims were severed from the remaining issues and the judgment was affirmed by this court. Id. at 806. With regard to the remaining claims, the trial court appointed a special master to examine the Family Trust's records, create a plan to distribute the Family Trust's assets, and report to the court. Lesikar v. Moon, 237 S.W.3d 361, 365 (Tex.App.-Houston [14th Dist.] 2007, pet. denied). The trial court adopted most of the special master's report, and Carolyn nonsuited some of her claims. Id. at 365-66. The remaining issues, including the issue of Carolyn's attorneys' fees, were tried to the bench. Id. at 365. On September 13, 2005, the trial court issued a final judgment, and as relevant to this proceeding, awarded Carolyn $400,000 in attorneys' fees. Id. Carolyn did not seek or receive a contingent award of additional attorneys' fees that might be incurred on appeal.

Woody appealed, and asserted that the evidence was legally insufficient to support the trial court's finding that, under the Declaratory Judgments Act and the Texas Property Code, $400,000 was a reasonable and necessary award for Carolyn's attorneys' fees. Id. at 375; TEX. CIV. PRAC. & REM.CODE ANN. § 37.009 (Vernon 2008) (addressing attorneys' fees under the Declaratory Judgments Act); TEX. PROP.CODE ANN. § 114.064 (Vernon 2007) (governing attorneys' fees and costs for proceedings under the Texas Trust Code). We reversed and remanded for a new trial on the issue of attorneys' fees, and the Texas Supreme Court denied Carolyn's petition for review and for rehearing.

B. Proceedings on Remand

The case initially was tried without a jury, but on remand, Woody requested and paid the required fee for a jury trial. Both parties propounded discovery, and a jury trial was set for January 5, 2009. Woody then moved for a continuance to allow more time for discovery. At a hearing on the motion, the trial court stated that it would deny the motion for continuance if Carolyn provided a recreated itemization of her attorneys' fees. Carolyn's attorneys agreed to deliver the reports to opposing counsel on December 22, 2008. Shortly before 5:00 p.m. on December 22, 2008, Carolyn's attorney faxed discovery responses to opposing counsel. The responses did not contain a recreated itemization of Carolyn's attorneys' fees, although they did include some redacted partial time records from two law firms.

On December 30, 2008, Carolyn moved to strike the case from the jury docket. The argument and authorities included as support for her motion consist entirely of the following:

8. This case was remanded to this Court solely for a determination on the issue of segregation of attorney's fees. Lesikar v. Moon, 237 S.W.3d 361, 378 (Tex.App.-Houston [14th Dist.] 2007, pet. denied).

9. Segregation of attorney's fees is purely a legal issue and not proper for determination by a jury. Air Routing Int'l. Corp., et. al v. Britannia Airways, Ltd., 150 S.W.3d 682, 688 (Tex.App.-Houston [14th Dist.] 2004, no pet. h.) [sic]; Stewart Title Guaranty Co. v. Sterling, 822 S.W.2d 1, 12 (Tex.1991) [sic].

Carolyn set her motion for a hearing to be held contemporaneously with the start of trial.

On January 5, 2009, the trial court granted Carolyn's motion to strike the jury demand and denied Woody's motion for continuance. The court also partially granted Woody's motion to compel, inasmuch as it required Carolyn to deliver unredacted copies of the previously-produced time records to Woody's attorney. Trial was then recessed until January 8, 2009.

On January 7, 2009, Woody filed a petition for writ of mandamus and a motion for emergency relief staying the trial. We granted the motion, and now address the issues raised in Woody's petition for writ of mandamus.

II. ISSUES PRESENTED

Woody requests mandamus relief requiring the trial court to place Carolyn's claim for attorneys' fees on the jury trial docket and compel Carolyn to provide additional responses to discovery.¹ Both Woody and Carolyn also ask that if we conclude Woody is entitled to a jury trial on the issue of attorneys' fees, we provide the parties and the trial court with instructions on the scope of the issues to be addressed by the jury.

III. STANDARD OF REVIEW

To be entitled to the extraordinary relief of a writ of mandamus, a relator must show that the trial court clearly abused its discretion and left him no adequate remedy by appeal. In re Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig.proceeding). A trial court abuses its discretion if it reaches a decision that is so arbitrary and unreasonable as to constitute a clear and prejudicial error of law, or if it clearly fails to correctly analyze or apply the law. In re Cerberus Capital Mgmt., L.P., 164 S.W.3d 379, 382 (Tex.2005) (orig.proceeding) (per curiam); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.1992) (orig.proceeding). To determine if a party has an adequate remedy by appeal, we ask whether "any benefits to mandamus review are outweighed by the detriments." In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004) (orig.proceeding). An appeal is an inadequate remedy when a party stands to lose a substantial right. Walker, 827 S.W.2d at 842.

IV. ANALYSIS

A. Jury Trial

Carolyn moved to strike the case from the jury-trial docket on the grounds that (1) this court remanded the case solely "to allow the [trial] court to determine segregation," and (2) segregation is a matter of law for the trial court to resolve. The first contention is mistaken; the second is misleading. Because both parties have requested clarification of the scope of remand, which cannot be accomplished without further explaining the law concerning segregation of attorneys' fees, we begin our analysis there.

1. The Fee-Segregation Rule

Under the American Rule, trial courts have no inherent authority to require a losing party to pay the prevailing party's attorneys' fees. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 602 121 S.Ct. 1835, 149 L.Ed.2d 855 (2001); Tony Gullo Motors I, L.P. v. Chapa, 212 S.W.3d 299, 310-11 (Tex.2006); CA Partners v. Spears, 274 S.W.3d 51, 81 n. 20 (Tex.App.-Houston [14th Dist.] 2008, pet. denied). As a matter of settled law, attorneys' fees are not available to the prevailing party in the absence of an authorizing contract or statute. Tony Gullo Motors, 212 S.W.3d at 311 & n. 65 (citing Travelers Indem. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 594 (Tex.1996)); Wm. Cameron & Co. v. Am. Surety Co. of N.Y., 55 S.W.2d 1032, 1035 (Tex.Comm'n App.1932, holding approved). Questions as to whether a particular contract or statute authorizes recovery of attorneys' fees present issues of contract or statutory construction, and these generally are questions of law for the court to decide. See Entergy Gulf States, Inc. v. Summers, 52 Tex. Sup. Ct. J. 511, 2009 WL 884906, at *2 (Tex. Apr. 3, 2009) (noting that statutory construction is a question of law) (citing F.F.P. Operating Partners., L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex.2007)); Coker v. Coker, 650 S.W.2d 391, 394-95 (Tex. 1983) (explaining that courts construe unambiguous contracts and determine the existence of ambiguity as matters of law); New Amsterdam Cas. Co. v. Tex. Indus., Inc., 414 S.W.2d 914, 914-15 (Tex.1967) (construing contract and statute as a matter of law to determine whether recovery of...