Reversed and Remanded and Memorandum Opinion filed November 4, 2014.




                                      In The

                    Fourteenth Court of Appeals

                              NO. 14-13-00659-CV

              IN THE GUARDIANSHIP OF BRANDY N. HOLLIS,
                      AN INCAPACITATED PERSON

                On Appeal from the County Court at Law No. 2
                        Montgomery County, Texas
                     Trial Court Cause No. 07-24438-P

                 MEMORANDUM                      OPINION

      Brandy Hollis is the beneficiary of a special needs trust funded by the
proceeds of a settlement from an automobile accident. Appellant Compass Bank,
the trustee, authorized an expenditure of over $67,000 for construction of a pool at
Brandy’s home for recreational and therapeutic purposes. In two show cause
hearings, the trial court questioned the use of trust funds to improve property
owned by Brandy’s parents. The trial court ultimately removed Compass Bank for
gross mismanagement and denied its application for compensation. Compass Bank
appeals from this order and challenges its removal in a single issue. We reverse
and remand.
                       FACTUAL AND PROCEDURAL BACKGROUND

       In July 2007, Brandy Hollis was rendered incapacitated as a result of serious
injuries sustained in an automobile accident. Brandy’s mother, June Hollis, was
appointed guardian of Brandy’s person and estate. In 2009, June Hollis applied to
the trial court to create a special needs trust for Brandy’s benefit, to be funded with
the settlement of a personal injury claim arising out of the accident. 1 The trial court
approved the trust, titled the “Brandy Hollis 867 Special Needs Trust,” and
appointed Compass Bank to serve as trustee.

       In March 2012, Compass Bank filed its Third Annual Account of the trust
for the trial court’s approval. The summary of receipts and disbursements for the
2011 calendar year included a disbursement of $67,526.00 for construction of a
swimming pool. The filing also reflected that, as of December 31, 2011, the trust
account had assets on deposit totaling $1,925,937.85.

       The trial court, on its own motion, held a show cause hearing in which the
court expressed concern that the pool was built on Brandy’s parents’ property with
Brandy’s trust money. Virginia Simons, a vice-president of Compass Bank and the
administrator of the trust, explained that Brandy’s physical condition was
improving, Brandy’s parents had requested the pool for her to use for therapy and
socialization, and a bank committee had approved the request. The trial court,
however, believed that the use of trust funds to make a capital improvement to
property that Brandy did not own was inappropriate. The trial court instructed
Compass Bank to propose a legal solution that would provide Brandy “some type
of equitable interest on the capital improvement she paid for” without disqualifying

       1
          Pi-Yi Mayo, an attorney and one of Compass Bank’s experts, testified that the purpose
of the special needs trust was to maintain Brandy’s eligibility for certain federal benefits in order
to assist in paying for her medical care. He explained that, for the beneficiary to remain eligible
for federal benefits, a special needs trust is not allowed to make expenditures for food or shelter.

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her from receiving federal benefits.

       In response to the trial court’s directive, Compass Bank prepared and filed a
Deed of Trust obligating Brandy’s parents to pay Brandy $67,526.00 on the earlier
of (1) the sale or refinancing of their property, or (2) any other transfer of all or any
portion of their property without Brandy’s prior written consent. The trial court
subsequently approved the Third Annual Account.

       In January 2013, Compass Bank filed a Fourth Annual Account reflecting
trust assets totaling $2,108,196.49 as of December 31, 2012. Disbursements listed
include attorney’s fees of $23,125.18 to Compass Bank’s counsel, Crain Caton &
James. The trial court issued another show cause order, ordering Compass Bank to
“appear and show cause why it should not be removed for misapplication of trust
property, failure to obey court orders, gross mismanagement or gross misconduct
in the performance of the duties of Trustee.”

       At the start of the show cause hearing, the trial judge explained that she was
concerned about Compass Bank’s request for over $23,000 in attorney’s fees. She
characterized the fees as “the bank’s attorney fees for inappropriately spending
[Brandy’s] money to put a pool on someone else’s property that then they turned
around and charged her for their wrongful acts.”2 To address the trial judge’s
concerns, Compass Bank presented several witnesses, including Pi-Yi Mayo, a
board-certified attorney who drafted the trust, Simons, and Compass Bank’s
counsel.

       Mayo testified that a pool for a disabled person is a standard expense
incurred by a trust when there is enough money to provide for one. Mayo had
       2
          The trial court also expressed concern about other disbursements of trust funds made by
the trustee, including expenditures for pool-related expenses, a Hawaiian vacation, payments to
caregivers, and certain credit-card debts. Because the order Compass Bank appeals from does not
mention these other expenditures, however, we do not address them further.

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never seen a deed or deed of trust issued in a case in which a pool was built on the
parents’ property, and he did not think a deed of trust was necessary. He also
testified that he saw nothing in Compass Bank’s accounting that would indicate
that the bank violated the terms of the trust.

      Simons testified that the trust was increasing at an average rate of ten
percent per year since inception and that the trust’s performance more than paid for
the pool. She also testified that, before using trust funds to purchase the pool, she
consulted with Mayo and another attorney, and that Compass Bank, rather than the
trust, paid for the second opinion. She stated that the bank also “took into
consideration the need for the pool, the doctor’s recommendation, Brandy’s
health[,] and the care that she needed.” Simon also explained that she obtained
approval for the expenditure from a committee of the bank’s senior trust officers.

      Compass Bank’s counsel acknowledged that “a lot” of the attorney’s fees
related to trying to satisfy the trial court’s concerns regarding the use of trust funds
for the pool. In counsel’s opinion, under the trust and the applicable code
provisions, Compass Bank had the right to hire counsel and pay their fees from the
trust to defend a show cause order if it resulted in a solution that was beneficial to
the ward. She also opined that, based on her reading of the trust document and her
years of experience with special needs trusts, the expenditure for a pool would not
be disapproved by a court, and that Compass Bank was not guilty of gross
mismanagement. The trial court did not make any ruling at the conclusion of the
hearing.

      On June 11, 2013, the trial court signed an “Order Removing Trustee” in
which the court found that Compass Bank had committed gross mismanagement in
the performance of its duties as trustee. The order recited that “upon filing of the
Trustee’s prior accounting[,] this court was forced to show cause the Trustee,

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because the Trustee allowed for approximately sixty thousand dollars of Brandy N
Hollis’ funds to be used as a capital investment in real estate in which the Trustee
had taken no steps to secure Brandy N Hollis an interest.” After stating that the
trustee “was successful” in resolving this matter, the court’s order explained the
reason for the second show cause order as follows:

             The accounting which is presently before the Court and is the
      subject of the present show cause hearing, contains approximately
      twenty thousand dollars in attorney fees related to attending a couple
      of brief show cause hearings related to the initial capital investment
      [of trust funds for the pool on Brandy’s parents’ property]. The
      Trustee represents that since it wasn’t removed at the prior hearing it
      is entitled to have used Brandy N Hollis’ funds for payments of its
      attorneys’ fees in the prior proceedings. This Court disagrees. The
      show cause hearings would not have been necessary had it not been
      for the Trustee[’]s omission. The Court cannot in good conscience
      now approve Brandy N Hollis’ payment of the Trustee’s attorney fees
      which would not have been necessary had the Trustee acted
      adequately to begin with. Brandy N Hollis should not have to pay for
      the Trustee’s mistake.
As a consequence, the trial court denied Compass Bank’s application for
compensation for 2012, disapproved the Fourth Annual Account, removed
Compass Bank as trustee, appointed a substitute trustee, and ordered Compass
Bank to deliver all of the remaining trust assets to the substitute trustee.

      Compass Bank moved to suspend enforcement of the judgment or,
alternatively, to set the amount of a supersedeas bond pursuant to Texas Rule of
Appellate Procedure 24.2(a)(3). A supersedeas bond in the amount of $2.5 million
dollars was subsequently approved by the county clerk. Compass Bank also timely
filed requests for findings of fact and conclusions of law, as well as past due
notices, but no findings and conclusions were filed. This appeal followed.



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                        ANALYSIS OF COMPASS BANK’S ISSUE

      In one issue, Compass Bank argues that the trial court abused its discretion
by removing it as trustee of Brandy’s special needs trust. According to Compass
Bank, it properly administered the trust and its expenditures were made after
seeking expert advice, advice of counsel, doctor’s recommendations, and approval
from committee meetings. Therefore, Compass Bank maintains that its actions
could never approach gross mismanagement, or even basic negligence.

      We review the trial court’s removal of Compass Bank as trustee for abuse of
discretion. See Conte v. Ditta, 312 S.W.3d 951, 956 (Tex. App.—Houston [1st
Dist.] 2010, no pet.). A trial court abuses its discretion if it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law or if
it clearly fails to correctly analyze or apply the law. Walker v. Packer, 827 S.W.2d
833, 840 (Tex. 1992).

      The special needs trust at issue provides that the trial court may remove a
trustee on its own motion, or on the complaint of any interested person, on several
grounds. One of these provides for removal when “[t]he Trustee is proved to have
been guilty of gross misconduct or mismanagement in the performance of the
duties of Trustee.” In the context of a trial court’s removal of an independent
executor under the Probate Code, the Supreme Court of Texas has explained that
“gross” misconduct or mismanagement requires more than “ordinary misconduct
and ordinary mismanagement” for removal and “implies serious and willful
wrongdoing.” Kappus v. Kappus, 284 S.W.3d 831, 836–37 (Tex. 2009) (noting
that “gross” is defined as “glaringly obvious” and “flagrant”). Similarly, other
courts have held that gross mismanagement or gross misconduct justifying removal
includes at a minimum: (1) any willful omission to perform a legal duty; (2) any
intentional commission of a wrongful act; and (3) any breach of a fiduciary duty

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that results in actual harm to a beneficiary’s interest. See, e.g., In re Guardianship
of Finley, 220 S.W.3d 608, 619 (Tex. App.—Texarkana 2007, no pet.); In re Estate
of Casida, 13 S.W.3d 519, 524 (Tex. App.—Beaumont 2000, no pet.); Geeslin v.
McElhenney, 788 S.W.2d 683, 685 (Tex. App.—Austin 1990, no writ).

      The trial court’s order reflects that it removed Compass Bank as trustee for
gross mismanagement because Compass Bank requested payment of its attorney’s
fees incurred as a result of “attending a couple of brief show cause hearings.” The
removal order further reflects that the hearings were related to Compass Bank’s
use of trust funds to pay for the swimming pool on Brandy’s parents’ property
without securing an interest in the pool for Brandy, and the trial court’s directive to
Compass Bank to “fix[] the problem it created.” The trial court found that the show
cause hearings “would not have been necessary had it not been for [Compass
Bank’s] omissions.” Consequently, the trial court found that Compass Bank’s
attorney’s fees “would not have been necessary had [Compass Bank] acted
adequately to begin with,” and concluded that Brandy “should not have to pay for
[Compass Bank’s] mistake.”

      The trial court ultimately found that Compass Bank committed gross
mismanagement in the performance of its duties as Trustee. This finding, however,
is not supported by the record.

      First, the trial court refused to approve Compass Bank’s initial use of trust
funds to purchase the pool for Brandy’s use at her parents’ home, and it required
counsel to protect this investment in property Brandy did not own, which counsel
did by preparing a deed of trust. We have no reason to fault the trial court’s
requirement, to which Compass Bank has not assigned error on appeal. Rather, the
question before us is whether Compass Bank’s actions regarding the pool rose to
the level of gross mismanagement. We hold the evidence does not support such a

                                          7
finding. Attorney Mayo, the drafter of the trust, testified that such a pool was an
appropriate expenditure if the money was available, and he saw no need for an
accompanying deed of trust. Documentary evidence also indicated that the pool
would be treated as a tax deductible item on Brandy’s individual tax return because
it was “medically necessary and suggested by her doctors and physical therapists to
assist in increasing her mobility.” Simons, the trust administrator, testified that the
trust increased in value each year and that the increases had more than covered the
cost of the pool. She also testified that, before authorizing the expenditure of trust
funds for the pool, she consulted attorneys and experts and obtained approval for
the purchase from a committee of senior bank officers. Moreover, Compass Bank
addressed the trial court’s concern with the purchase by preparing and filing the
deed of trust, and the trial court’s removal order indicates that Compass Bank “was
successful in in this regard.”

      Second, Compass Bank cannot be said to have engaged in gross
mismanagement by seeking reimbursement for its counsel’s attorney’s fees. The
special needs trust expressly provides that “[a]n individual or entity serving as
Trustee shall be reimbursed from the estate for the reasonable costs and expenses
incurred in connection with the administration of the estate . . . on application to
and approval of the Court.” Likewise, the Texas Trust Code provides that a trustee
may reimburse himself from trust principal or income, or partly from both, for
advances made for the convenience, benefit, or protection of the trust or its
property and expenses incurred while administering or protecting the trust. See
Tex. Prop. Code § 114.063(a)(1)–(2). Compass Bank incurred expenses in the form
of attorney’s fees in administering and protecting the trust, and therefore it was
entitled to request reimbursement of those fees. 3 See Grey v. First Nat’l Bank, 393

      3
          Compass Bank has not raised an issue on appeal challenging the trial court’s denial of
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F.2d 371, 387 (5th Cir. 1968) (stating that, under Texas law, a trustee may charge
his trust for attorney’s fees which the trustee, acting reasonably and in good faith,
incurs in defending a charge of breach of trust).

       Even assuming that Compass Bank’s purchase of the pool with trust funds or
its request for reimbursement for its attorney’s fees incurred in defending the
purchase of the pool constituted ordinary negligence or mismanagement, nothing
in the record supports the trial court’s conclusion that Compass Bank’s actions rose
to the level of “serious and willful wrongdoing” supporting a finding of gross
mismanagement. See Kappus, 284 S.W.3d at 836–37. Nor do the bank’s actions
constitute the willful omission to perform a legal duty, the intentional commission
of a wrongful act, or a breach of a fiduciary duty that results in actual harm to a
beneficiary’s interest. See Estate of Casida, 13 S.W.3d at 524–25; Guardianship of
Finley, 220 S.W.3d at 619–20. Accordingly, we hold that the trial court abused its
discretion by removing Compass Bank as trustee and sustain Compass Bank’s sole
issue on appeal.

                                        CONCLUSION

       We hold that the trial court abused its discretion by removing Compass Bank
as trustee of the Brandy Hollis 867 Special Needs Trust on the grounds that
Compass Bank committed gross mismanagement in the performance of its duties.
We therefore reverse the portions of the trial court’s judgment removing Compass
Bank as trustee, appointing a successor trustee, and requiring Compass Bank to
deliver the trust assets to the successor trustee, and we remand the case to the trial
court for further proceedings consistent with this opinion. We further release the

reimbursement for its attorneys’ fees, and we therefore express no opinion regarding whether the
trial court abused its discretion by denying reimbursement as part of its review of Compass
Bank’s annual accounting. Instead, we hold only that seeking reimbursement did not rise to the
level of gross mismanagement and thus did not support Compass Bank’s removal as trustee.

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surety, U.S. Specialty Insurance Company, from liability on the supersedeas bond.




                               /s/          Ken Wise
                                            Justice



Panel consists of Justices Boyce, Busby, and Wise.




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