Opinion issued July 26, 2012.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00430-CV
                           ———————————
                         MARK R. RILEY, Appellant
                                       V.
    DANIEL ALPERT, ROMAN ALPERT, AND LINDA STANLEY, AS
  SUCCESSOR TRUSTEE OF THE ROMAN MERKER ALPERT TRUST
        AND THE DANIEL JAMES ALPERT TRUST, Appellees



                     On Appeal from Probate Court No. 2
                            Harris County, Texas
                       Trial Court Case No. 305232401


                       MEMORANDUM OPINION

      In this appeal after an earlier remand to the trial court, Mark Riley seeks

reversal of the trial court’s summary judgment (1) recognizing Linda Stanley as a

successor trustee over the Roman Merker Alpert Trust (RAT) and the Daniel
James Alpert Trust (DAT) and (2) ordering that Riley pay restitution to the trusts

for the amounts expended on attorney’s fees in prosecuting claims against Robert

Alpert, the settlor and father of Daniel and Roman Alpert. 1 We hold that the

summary judgment record does not support the trial court’s judgment against

Riley, and that the trial court erred in failing to resolve the fact issue as to the

validity of Riley’s appointment as successor trustee for the periods during which

the fees were incurred. We therefore reverse the judgment and remand the case for

further proceedings.

                                    Background

      This case arises out of disputes over the alleged depletion of trust funds. In

1998, Riley, acting as trustee of the RAT, the DAT, and the 1996 Children’s Trust

(the 1996 trust), sued Robert Alpert, the trusts’ settlor and the trust beneficiaries’

father, alleging that he had sold stocks to trigger a tax loss, and then caused the

RAT and DAT to buy those stocks, resulting in the overpayment of taxes by the

trusts. Riley alleged that Alpert breached fiduciary duties he owed to the trust

beneficiaries. The beneficiaries intervened and countersued Riley for breach of

fiduciary duty and for a declaration that Riley was not the trustee of the RAT or

DAT, or alternatively, for an order removing Riley as. For nearly fifteen years, the

parties have called on both state and federal courts to labor toward the resolution of


1
      Both sons are now of legal age and appear as appellees here.
                                           2
their multitudinous disputes. See, e.g., Alpert v. Riley, 274 S.W.3d 277 (Tex.

App.—Houston [1st Dist.] 2008, pet. denied); In re Alpert, 276 S.W.3d 592 (Tex.

App.—Houston [1st Dist.] 2008, orig. proceeding [mand. denied]); Alpert v. Riley,

No. H-04-CV-3774, 2011 WL 3325884 (S.D. Tex. Aug. 2, 2011); Alpert v. Riley,

No. H-04-3774, 2011 WL 801978 (S.D. Tex. Feb. 10, 2011); see also Alpert v.

Gerstner, 232 S.W.3d 117 (Tex. App.—Houston [1st Dist.] 2006, pet. denied);

Alpert v. Crain, Caton & James, P.C., 178 S.W.3d 398 (Tex. App.—Houston [1st

Dist.] 2005, pet. denied). This chapter deals with the proceedings on the issues

remanded to the probate court pursuant to our 2008 opinion and judgment. 2

      The proceedings on remand addressed the scope of our 2008 opinion, which

reversed the trial court’s orders authorizing payment of legal fees and expenses to

the trustee’s counsel for work performed in prosecuting claims against Robert

Alpert on behalf of the trusts and for defending the suit brought against Riley.

With respect to the 1996 trust, on remand, the Alperts sought restitution from Riley

for amounts paid from the 1996 trust to him as trustee compensation while Riley


2
      In the federal case, settlor Robert Alpert and his sons sued Riley and his former
      legal assistant based on allegedly wrongful actions taken in connection with the
      three trusts and Riley’s involvement in providing confidential information to the
      Internal Revenue Service. Alpert v. Riley, No. H-04-CV-3774, 2011 WL 3325884
      (S.D. Tex. Aug. 2, 2011). In the jury trial on that suit, the district court
      incorporated relevant holdings from our 2008 opinion and judgment into the jury
      charge. 2011 WL 3325884, at *8. The federal case adjudicated only claims
      involving Riley’s actions as purported trustee taken after the probate court entered
      its 2006 judgment. Id. at *9.
                                           3
claimed to be trustee. Riley did not respond to the Alperts’ motion for summary

judgment with respect to the 1996 trust. In the fall of 2010, the trial court signed a

judgment declaring that fees awarded during underlying proceeding were not

necessary for the preservation, safekeeping, or management of the 1996 trust and

ordered Riley to return the funds to the trust. The trial court signed a judgment

severing its rulings relating to the 1996 trust from the remaining claims, all of

which related to the RAT and DAT. Riley moved for a new trial, but he did not

file a notice of appeal from that judgment. Thus, that judgment is not before us.

      The Alperts next moved for summary judgment and asked the trial court to

order Riley to pay to the RAT and DAT all of the amounts disbursed from the

RAT and DAT in payment of attorney’s fees during the course of the litigation.

Riley did not timely respond to the motions, but he appeared at the hearing. The

trial court granted the Alperts’ motions and ordered that the legal fees and

expenses that the probate court had ordered disbursed pursuant to its June 21,

2004, September 30, 2004, October 20, 2004, December 21, 2004, January 31,

2005, April 4, 2005, April 20, 2005, and March 28 2006 orders “were not

necessary for the preservation, safekeeping, or management of the trusts; were

neither just nor equitable; and should be restored to the Roman Alpert Trust and

the Daniel Alpert Trust.”       The trial court entered judgment against Riley




                                          4
individually in the amount of these disbursed funds. Finally, it ordered Riley to

pay the beneficiaries’ legal fees incurred during the course of this litigation.

                                      Discussion

I.    Summary judgment standard of review

      We review a trial court’s summary judgment de novo. Valence Operating

Co. v. Dorsett, 164 S.W.3d 656, 661 (Tex. 2005); Provident Life & Accid. Ins. Co.

v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). Under the traditional standard for

summary judgment, the movant has the burden to show that no genuine issue of

material fact exists and that the trial court should grant judgment as a matter of

law. TEX. R. CIV. P. 166a(c); KPMG Peat Marwick v. Harrison Cnty. Hous. Fin.

Corp., 988 S.W.2d 746, 748 (Tex. 1999). When reviewing a summary judgment

motion, we take as true all evidence favorable to the nonmovant and indulge every

reasonable inference and resolve any doubts in the nonmovant’s favor. Dorsett,

164 S.W.3d at 661; Knott, 128 S.W.3d at 215; Sci. Spectrum, Inc. v. Martinez, 941

S.W.2d 910, 911 (Tex. 1997).

      Traditional summary judgment is proper only if the movant establishes that

there is no genuine issue of material fact and that the movant is entitled to

judgment as a matter of law. TEX. R. CIV. P. 166a(c). A defendant moving for

traditional summary judgment must conclusively negate at least one essential

element of each of the plaintiff’s causes of action or conclusively establish each


                                           5
element of an affirmative defense.      Sci. Spectrum, Inc., 941 S.W.2d at 911.

“Summary judgments must stand on their own merits, and the non-movant’s

failure to answer or respond cannot supply by default the summary judgment proof

necessary to establish the movant’s right.” City of Houston v. Clear Creek Basin

Auth., 589 S.W.2d 671, 678 (Tex. 1979).

      Because the party moving for traditional summary judgment carries the

burden to establish that no material fact issue exists and that it is entitled to

judgment as a matter of law, “[t]he nonmovant has no burden to respond to a

summary judgment motion unless the movant conclusively establishes its cause of

action or defense.” M.D. Anderson Hosp. & Tumor Inst. v. Willrich, 28 S.W.3d

22, 23 (Tex. 2000), quoted in Grace v. Titanium Electrode Prods., Inc., 227

S.W.3d 293, 297 (Tex. App.—Houston [1st Dist.] 2007, no pet.). But, “a party

who fails to expressly present to the trial court any written response in opposition

to a motion for summary judgment waives the right to raise any arguments or

issues post-judgment.” Unifund CCR Partners v. Weaver, 262 S.W.3d 796, 797

(Tex. 2008). Because a motion for summary judgment must stand on its own

merit, the nonmovant—even without filing a response in the trial court—still may

argue on appeal that the movant’s summary judgment proof is insufficient as a

matter of law. Grace, 227 S.W.3d at 297; see Willrich, 28 S.W.3d at 23; Rizkallah




                                          6
v. Conner, 952 S.W.2d 580, 582–83 (Tex. App.—Houston [1st Dist.] 1997, no

writ).

II.      Stanley’s appearance as successor trustee

         As a preliminary matter, Riley challenges the legitimacy of Stanley’s

appointment as the current and successor trustee of the RAT and DAT, claiming

that her appointment does not comply with our rulings in the first appeal.

Specifically, Riley claims that Stanley’s appointment violates the law of the case

and, as a result, she lacks standing and capacity to appear on behalf of the trusts in

the proceedings.

               A. Law of the case

         “The ‘law of the case’ doctrine is defined as that principle under which

questions of law decided on appeal to a court of last resort will govern the case

throughout its subsequent stages.” Hudson v. Wakefield, 711 S.W.2d 628, 630

(Tex. 1986); see also Saudi v. Brieven, 176 S.W.3d 108, 118 (Tex. App.—Houston

[1st Dist.] 2004, pet. denied). Accordingly, we consider the meaning and effect of

our 2008 opinion and judgment in determining whether the trial court erred in

acknowledging Linda Stanley as trustee of the RAT and DAT and awarding

restitution to her in that capacity, as well as in declaring that Riley “was not, under

any circumstance trustee of those trusts at any time after the 2005 trial,” and “ha[d]

no authority to appoint successor trustees for the [RAT] and [DAT].”

                                          7
      Our 2008 judgment reversed the trial court’s March 28, 2006 appointment of

Riley as successor trustee of the three trusts. We held that the appointment failed

to comply with the Texas Trust Code and the appointment procedure set forth in

the trusts themselves. 274 S.W.3d at 296. This aspect of the 2008 appellate

judgment bore directly on paragraph XIII of the trial court’s 2006 judgment, as

shown below:

2006 TRIAL COURT JUDGMENT                        2008 APPELLATE JUDGMENT
XIII. The Court recognizes that the            We affirm part XIII of the judgment
release of Mark Riley as former Trustee        only to the extent it recognizes the
of the [RAT], the [DAT], and the Robert        release of Riley as trustee and
Alpert 1996 Children’s Trust terminates        termination of his trusteeship as pertains
that trusteeship and requires the              to any trusteeship that may later be
appointment of a new trustee.                  found to be valid. We reverse the
    It is therefore ORDERED,                   remainder of part XIII and render
ADJUDGED and DECREED by the                    judgment that any successor trustees for
Court that Mark Riley is appointed as          the RAT, DAT, and 1996 trust are to be
Trustee of the [RAT], the [DAT], and           selected in accordance with the terms of
the Robert Alpert 1996 Children’s              the applicable trust instrument, after
Trust, effective the date of this              identification of the valid trustee for
judgment, to serve with reasonable             each trust. 274 S.W.3d at 299
compensation to be approved by the             (emphasis added).
Court, until the final mandate is issued
by the highest appellate court to
consider this cause, with all the powers
and duties of a Trustee under the Texas
Trust Code and the Trust Indentures.

      Riley contends that Stanley’s appointment as successor trustee should be

voided because she accepted the appointment before “a judicial determination of




                                           8
the identity of the valid trustee for each of the trusts” and before this Court issued

its mandate. We disagree with both contentions.

      Selection of a new trustee going forward was an issue to be determined on

remand.    The 2008 judgment reversed the trial court’s summary judgment

declaring Riley the properly appointed trustee. 274 S.W.3d at 286–88. We held

that that the appointment of a successor trustee must comply with the Trust Code,

which requires compliance with any trust provisions that prescribe the method for

appointment. See TEX. PROP. CODE ANN. § 113.083(a) (West 2007); 274 S.W.3d

at 296.

      Riley claims that the trial court violated our mandate by failing to identify a

valid trustee for the RAT and DAT before selecting the successor trustee. On

remand, the Alperts contended that it was unnecessary to make this identification

because the 2008 appellate judgment—which reversed Riley’s appointment as

interim trustee, pending appeal—created a vacancy in the trusteeship, and the trust

instruments specifically provide for appointment of a successor trustee when the

position is vacant. Riley does not contend that Stanley’s appointment fails to

comply with the pertinent trust provisions. We agree with the Alperts that the

2008 appellate judgment required the selection of a successor trustee.




                                          9
             B. Timing of Stanley’s appointment

      Riley also complains that Stanley’s appointment was premature.            That

Stanley’s appointment predates the issuance of our mandate does not affect its

validity. An appellate mandate is a directive to the lower court. Saudi, 176

S.W.3d at 116–17. The trial court need not wait for the mandate to take action in

the case; it can voluntarily comply with the appellate judgment before the mandate

issues, as long as the parties have exhausted their appellate remedies and the

decision becomes final. Id. at 117. Nor does the lack of a mandate constrain the

parties’ extrajudicial activities. See Lewelling v. Bosworth, 840 S.W.2d 640, 642

(Tex. App.—Dallas 1992, orig. proceeding) (“A mandate is the official notice of

the action of the appellate court, directed to the court below, advising it of the

action of the appellate court and directing it to have its judgment duly recognized,

obeyed, and executed.”), quoted in Saudi, 176 S.W.3d at 116; see also Harris

Cnty. Children’s Protective Servs. v. Olvera, 971 S.W.2d 172, 175 (Tex. App.—

Houston [14th Dist.] 1998, pet. denied) (observing that when appellate court issues

its mandate, trial court’s duty is to “give effect” to the judgment by issuing proper

orders). Stanley did not appear in the proceedings until after the mandate issued.

In the post-mandate world, the trusteeships had been vacant since at least March

28, 2006. See also Alpert, 2011 WL 801978, at *1 (granting summary judgment

that “Riley did not properly reappoint himself trustee of the Three Trusts on

                                         10
January 10, 2010”). The document appointing Stanley as successor was executed

well after that date. We therefore hold that the trial court properly recognized

Stanley as the current trustee for the RAT and DAT.

             C.     Standing and capacity

      “A plaintiff must have both standing and capacity to bring a lawsuit.”

Austin Nursing Ctr., Inc. v. Lovato, 171 S.W.3d 845, 848 (Tex. 2005). “A plaintiff

has standing when it is personally aggrieved, regardless of whether it is acting with

legal authority; a plaintiff has capacity when it has the legal authority to act,

regardless of whether it has a justiciable interest in the controversy.” Nootsie, Ltd.

v. Williamson Cnty. Appraisal Dist., 925 S.W.2d 659, 661 (Tex. 1996) (emphasis

omitted). Riley did challenge either Stanley’s standing or her capacity in the trial

court. As a necessary component of a court’s subject-matter jurisdiction, standing

cannot be waived and can be raised for the first time on appeal. Tex. Ass’n of Bus.

v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.1993). Stanley’s standing,

however, is not at issue. She is named solely in a representative capacity on behalf

of the RAT and DAT, and Riley does not question that the trusts have a stake in

the proceeding.3




3
      Stanley, as the representative for existing parties to the suit, properly appeared in
      the proceeding; contrary to Riley’s contention, she need not have petitioned to
      intervene in the suit before her appearance.
                                           11
       Our holding that Stanley’s appointment is valid makes it unnecessary to

reach Riley’s challenge to Stanley’s capacity. In any event, Riley waived that

challenge by failing to first file a verified pleading challenging Stanley’s capacity

on this ground in the trial court. See Ray Malooly Trust v. Juhl, 186 S.W.3d 568,

571 (Tex. 2006) (citing TEX. R. CIV. P. 93(1)); Lovato, 171 S.W.3d at 849.

III.   Propriety of restitution award

       Riley next challenges the trial court’s order requiring him to restore to the

RAT and DAT the attorney’s fees paid pursuant to orders dated June 21, 2004;

September 30, 2004; October 30, 2004; December 14, 2004; December 21, 2004;

January 31, 2005; April 4, 2005; and March 28, 2006; and ratified in the 2006 trial

court judgment.      Riley contends that the trial court lacked subject-matter

jurisdiction over the attorney’s fees issue and that the law of the case doctrine

precluded the trial court from re-opening the attorney’s fees issue on remand.

       A. Meaning and effect of appellate mandate on prior payments
          of attorney’s fees
       The trial court orders at issue approved accountings that identified trust

assets and expenses and reported the amounts received and disbursed under the

trusts. In addition, the orders authorized payment of legal fees and expenses

incurred in Riley’s litigation against Robert Alpert on behalf of the trusts as well as

trustee compensation for Riley. We look to both the mandate and the appellate

opinion to interpret the mandate. Hudson, 711 S.W.2d at 630. To support his

                                          12
contention that that the attorney’s fee issues could not be re-opened on remand,

Riley relies on the following portion of the mandate: 4

2006 TRIAL COURT JUDGMENT                      APPELLATE MANDATE
XI.       It is further ORDERED,             Part XI of the judgment that approves
ADJUDGED, and DECREED that the               any award of trustee compensation for
Court approves the accountings filed by      Riley is reversed and judgment is
Riley as trustee of the RAT, the DAT,        rendered that Riley take nothing on his
and the Children’s Trust, and thereby        requests for trustee compensation. The
approves distributions, fees, costs, and     remainder of part XI is affirmed.
expenses therefrom by Riley as Trustee;
and Riley, as Trustee of the RAT, the
DAT, and the Children’s Trust, is
discharged as to the accountings from
the inception of these trusts until the
jury’s verdict on June 8, 2005.

      According to Riley, this paragraph precluded the trial court from addressing

the attorney’s fee issue on remand. Riley improperly isolates this paragraph from

other portions of the 2008 opinion and judgment and its mandate that require the

contrary conclusion. “A judgment should be construed as a whole toward the end

of harmonizing and giving effect to all the court has written.” Point Lookout W.,

Inc. v. Whorton, 742 S.W.2d 277, 278 (Tex. 1987). The following paragraphs

address attorney’s fees:




4
      Each paragraph in the mandate expressly addresses a specific paragraph in the trial
      court’s judgment. We therefore include the corresponding paragraphs of the trial
      court’s judgment to aid in interpreting the mandate.
                                          13
2006 TRIAL COURT JUDGMENT                    APPELLATE MANDATE
II.      It is further ORDERED,            Part II of the judgment ratifying and
ADJUDGED, and DECREED that the             confirming the trial court’s June 21,
Court ratifies and confirms the previous   2004, September 30, 2004, December
orders of the Court dated June 21, 2004,   14, 2004, December 21, 2004, January
September 30, 2004, December 14,           31, 2004, and April 4, 2005 orders
2004, December 21, 2004, January 31,       authorizing payments of expenses to
2005, April 4, 2005, and a second order    Riley and fees to his counsel is
dated April 4, 2005, which authorized      reversed, and the matter is remanded
the payment of fees and expenses to        for further proceedings consistent with
counsel for Riley and to Riley in the      this opinion. Part II of the judgment
total amount of [$617,319.97].             granting Riley’s claims for trustee
                                           compensation is also reversed and
                                           judgment is rendered that Riley take
                                           nothing on his claims for trustee
                                           compensation.

VI.      It is further ORDERED,            Part VI of the judgment, in which the
ADJUDGED, and DECREED that the             trial court ratifies and confirms prior
Court ratifies and confirms the previous   payments of attorney’s fees and
order of the Court dated June 21, 2004,    expenses to Riley, is reversed, and the
authorizing payment to Mark Riley of       matter is remanded for further
[$77,965.42].                              proceedings consistent with this
                                           opinion.

      The earlier appeal did not challenge the accountings themselves. The 2008

appellate judgment left the accountings intact—but it reversed the trial court’s

approval of Riley’s use of trust funds to pay trustee compensation and attorney’s

fees in those amounts.    We rendered a take-nothing judgment on the trustee

compensation issue, but remanded the attorney’s fee issue for further proceedings.

Our opinion explained:




                                       14
      The trial court reconfirmed its approval of Riley’s accountings for the
      trusts and requests for the attorney’s fees and reimbursement of
      expenses incurred in connection with the litigation on behalf of the
      trusts, as well as an earlier distribution of . . . trustee compensation.
      None of the appellants challenges the propriety or adequacy of those
      accountings on appeal, and so they remain undisturbed, except to the
      extent that they are affected by reversal of certain of the trial court’s
      other rulings.
274 S.W.3d at 284. The portion of the appellate mandate affirming “the remainder

of part XI,” does not render meaningless the portion reversing the trial court’s

judgment on attorney’s fees.

      Riley contends that his discharge “as to the accountings” also discharges him

from liability in connection with the attorney’s fees. Texas State Bank v. Amaro

suggests otherwise. See 87 S.W.3d 538, 543 (Tex. 2002). There, the Texas

Supreme Court rejected a trustee’s contention that “‘[a]pproval of an accounting

involves more than merely approval of the math involved in expenditure and

disbursement: approval of an accounting disposes of all claims that might be made

in regard to matters relating thereto.’” Id. at 544–45 (internal quotation omitted).

The Court distinguished between Chapter 113 of the Trust Code, entitled

“Administration,” which “establishes the contents of an accounting and requires

the trustee to list trust property, transactions, property, cash, and all known

liabilities owed by the trust,” and the trustee’s potential liability under Chapter

114, which concerns the “liabilities, rights, and remedies of trustees, beneficiaries,

and third persons.”      Id. (citing TEX. PROP. CODE ANN. § 113.152).             An

                                         15
administrative discharge does not adjudicate a trustee’s obligations or potential

liability. Id. The trial court thus had jurisdiction to consider the Alperts’ motion

on the remanded attorney’s fee issues.

      B. Standard for awarding attorney’s fees under Probate Code

      The trial court’s attorney’s-fee awards and the Alperts’ motion for restitution

on remand rely on section 114.064 of the Texas Property Code, which provides

that, “[i]n any proceeding under this code the court may make such award of costs

and reasonable and necessary attorney’s fees as may seem equitable and just.” The

question of whether attorney’s fees are equitable and just is one of law for the trial

court to decide. Ridge Oil Co., Inc. v. Guinn Invs., Inc., 148 S.W.3d 143, 161

(Tex. 2004). Whether it is equitable and just to award attorney’s fees depends on

the concept of fairness, in light of all the surrounding circumstances. Id. at 162;

see also Barshop v. Medina Cnty. Underground Water Conserv. Dist., 925 S.W.2d

618, 637 (Tex. 1996) (“The conclusion that an award of fees is equitable and just is

not dependent on a finding that a party ‘substantially prevailed.’”). We review a

decision to award or deny attorney’s fees under section 114.064 for an abuse of

discretion. See Hachar v. Hachar, 153 S.W.3d 138, 142 (Tex. App.—San Antonio

2004, no pet.); Lyco Acquisition 1984 Ltd. P’ship v. First Nat’l Bank of Amarillo,

860 S.W.2d 117, 121–22 (Tex. App.—Amarillo 1993, writ denied); see also

Barshop, 925 S.W.2d at 637 (discussing review of “equitable and just” fee awards

                                         16
under Declaratory Judgment Act). “A trial court abuses its discretion when it

reaches a decision so arbitrary and unreasonable as to amount to a clear and

prejudicial error of law.” Joe v. Two Thirty Nine Joint Venture, 145 S.W.3d 150,

161 (Tex. 2004). There is no abuse, however, simply because a trial court may

decide a matter within its discretion differently than an appellate court. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985).

             1. Determination of valid trustee

      Riley contends that the trial court erred in failing to resolve the question of

whether he was properly appointed trustee over the RAT and DAT, because

resolution of these issues in his favor would support the trial court’s approval of

his requests to use trust funds to pay the attorney’s fees. In our 2008 opinion, we

held that the trial court erred in granting summary judgment on Riley’s status as

trustee over the RAT and DAT. Our reversal of that ruling left open the question

of who held the trusteeship during the period that Riley acted as trustee. The

determination of Riley’s actual or de facto trustee status was a fact issue to be

decided on remand to the trial court. The 2008 appellate judgment orders that “any

successor trustees for the RAT, DAT, and 1996 trust are to be selected in

accordance with the terms of the applicable trust instrument, after identification of

the valid trustee for each trust.” 274 S.W.3d at 299. The federal district court also

noted that—although the issues before it did not involve the issue of whether Riley

                                         17
was authorized to act as trustee of the RAT and DAT before June 8, 2005 (the date

of the jury verdict in state trial court)—“[t]he state probate court was tasked on

remand to determine whether Riley was properly authorized to act as trustee of the

RAT and DAT at any time before” that date. 2011 WL 3325884, at *9.

      Riley contends that the trial court’s failure to have a fact finder resolve the

trustee identity question is error. See Madeshko v. Abraham, Watkins, Nichols, &

Friend, 112 S.W.3d 679, 685 (Tex. App—Houston [14th Dist.] 2003, no pet.) (en

banc plurality op.) (“Clearly, trial courts must obey appellate mandates, and they

abuse their discretion if they do not.”). We agree.

      We first consider whether the trial court could properly grant summary

judgment on the Alperts’ motion without ascertaining whether Riley ever served as

the valid trustee. The Alperts contend that the issue of Riley’s trustee status is

moot, because identification of the valid trustee was unnecessary to decide the

remanded attorney’s fees issues. “The mootness doctrine limits courts to deciding

cases in which an actual controversy exists” between the parties. FDIC v. Nueces

Cnty., 886 S.W.2d 766, 767 (Tex. 1994).

      Relying on the 2008 appellate judgment, the Alperts claim that, whether

trustee or not, Riley’s claims against Robert Alpert lacked merit, and thus, the trial

court should not have approved the disbursement of trust funds to pay the

attorney’s fees incurred in prosecuting the case. The Alperts also rely on the 2008

                                         18
appellate judgment’s reinstatement of the jury’s breach of trust finding against

Riley, contending that, whether trustee or not, the breach finding means that the fee

expenditures were neither equitable nor just and, as a result, should not be borne by

the trusts. Neither ground supports the conclusion that the issue of whether Riley

had trustee status is moot—an issue expressly remanded to the trial court, based on

our determination that fact issues existed.

      First, certain provisions in the trust instruments arguably shield the trustee

from a beneficiary’s efforts to second-guess the wisdom of “making any

discretionary application or payment from principal” by making those decisions

“final and binding upon all persons then or thereafter interested in the trust estate.”

The trusts also provide that “[n]o Trustee acting hereunder shall incur any liability

for any act done or omitted in the exercise of his duties as Trustee in good faith.”

Whether Riley can invoke these protections depends on his trusteeship and his

status. Second, the Alperts do not address the matter that Riley incurred attorney’s

fees for claims brought against him by Alpert and the beneficiaries in his capacity

as trustee.    Beyond the express provisions of the trusts themselves, the

determination of whether the fee payments were just and equitable depends on the

circumstances surrounding each fee request when it was made. Finally, our 2008

opinion also rejected any equitable recovery based on a breach of fiduciary duty

claim against Riley and judgment. The jury awarded no damages, and the trial

                                          19
court had found no breach of duty.        In light of this, we concluded that the

beneficiaries could not recover for breach of fiduciary duty.

      The 2008 appellate reversal of the judgment against Robert Alpert on the

basis that Riley lacked standing to pursue the breach of fiduciary duty claim

against him is an after-the-fact legal assessment; it does not support summary

reversal of the fee awards. See Ridge Oil Co., 148 S.W.3d at 162. The reversal

does not consider any good-faith reliance on legal advice in pursuing the claim, or

the fact that Riley had employed other legal theories against Robert Alpert that

were not raised in the 2008 appeal. Whether Riley was the valid or de facto trustee

when he prosecuted the claims and made the requests for payment is relevant to

whether he requested payment of attorney’s fees in good faith. We hold that the

Alperts failed to show their entitlement to summary judgment as a matter of law on

their claim seeking reversal of the attorney’s fees awarded under section 114.064.

             2. Restitution as basis for judgment against Riley

      Riley also contends that the trial court erred in relying on a restitution theory

to order Riley to reimburse the trusts for the attorney’s fee disbursements. The

probate court’s original orders granting Riley authority to pay attorney’s fees and

expenses uniformly provide:




                                         20
      It is therefore ORDERED that the above fees and expenses are
      approved and that Karen Gerstner, Receiver of RAT and DAT shall
      pay the sum of $[amount] to Crain, Caton & James from the assets of
      each trust subject to the receivership for an aggregate amount of
      $[amount] to Crain, Caton & James, P.C.
      In arguing for wholesale reimbursement to the trusts, the Alperts rely on

Drake v. Trinity Universal Insurance Co., 600 S.W.2d 768 (Tex. 1980), and

Outdoor Systems, Inc. v. BBE, L.L.C., 105 S.W.3d 66 (Tex. App.—Eastland 2003,

pet. denied). Drake addressed “the question whether an attorney who is paid for

legal services pursuant to a claim against an estate is liable to the estate for

reimbursement when the court order requiring payment of his claim is reversed on

appeal.” 600 S.W.2d at 769. There, the attorney, Currie, made a claim against the

estate for legal fees he earned in representing the estate’s administratrix in resisting

the application to probate the will and in defending efforts to remove her from her

position. The trial court awarded the fees. The court of appeals held that the fees

were not properly charged to the estate and reversed. Id. at 770. In holding that

the attorney was required to reimburse the estate, the Supreme Court likened the

situation to cases in which a judgment that is executed is later reversed on appeal,

which uniformly hold that the prevailing party is entitled to restitution. See id. at

771. Outdoor Systems stands for the same principle. See 105 S.W.3d at 74–75

(“Texas courts have long held that a party obtaining any advantage or benefit

through a trial court’s judgment that is later reversed must return the benefit to the


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other party.”). These cases do not support summary recovery against Riley. Riley

received no benefit from the trial court’s approval of his requests to pay the

attorneys’ fees; the receiver disbursed the payments directly to the law firm

representing the trustee, pursuant to an accounting approved by the trial court.

      The trial court’s judgment relies on the same flawed grounds in ordering that

Riley, individually, pay the beneficiaries’ legal fees.         Riley cannot be held

individually accountable for the beneficiaries’ attorney’s fees as damages resulting

from breach of trust, because the jury found that no damages resulted from the

breach. See generally TEX. PROP. CODE ANN. § 114.001(c) (explaining that trustee

who commits breach of trust “is chargeable with any damages resulting from such

breach of trust”) (emphasis added). We conclude that the trial court erred in

relying on these grounds to order Riley, in his individual capacity, to pay the

beneficiaries’ legal fees.

                                      Conclusion

      We hold that the trial court erred in granting the Alperts’ motion for

summary judgment and restitution on the remanded attorney’s fees issues incurred

in connection with claims involving the RAT and DAT because the trial court

failed to resolve the fact issue as to the trustee status of those trusts for the periods

during which the fees were incurred. We therefore reverse the judgment and




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remand the case for further proceedings consistent with this opinion. All pending

motions are denied as moot.




                                            Jane Bland
                                            Justice

Panel consists of Justices Bland, Massengale, and Brown.




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