Epperson v. Greer , 1981 Tex. App. LEXIS 4540 ( 1981 )

CANTU, Justice,

dissenting in part and concurring in result.

I deem it unnecessary to hold that a trial court is without authority, as a matter of law, to award attorneys’ fees as a surcharge against the trustee under the provisions of the Texas Trust Act, Tex.Rev.Civ.Stat.Ann. art. 7425b-24, § A (Vernon 1960). I find no ambiguity in these provisions, nor do I read these provisions as attempting to create any statutory authority for the granting of attorneys’ fees such as to require statutory construction.

A reading of the title and purpose of S.B. No. 251 (Texas Trust Act), 48th Legislature Regular Session, 1943, Chapter 148, p. 232, clearly indicates a legislative intent to create nothing more than a vehicle or mechanism for the enforcement of trustee liabilities through the courts, to-wit:

... [fjixing and delineating the tort and contractual liabilities of trustees and trust estates; providing for exoneration or reimbursement in the incurrence of certain of such liabilities and prescribing a method whereby such liabilities may be enforced in the courts ...

The majority opinion creates confusion where none is necessary under the circumstances of this case. By the very nature of the language in section A of art. 7425b-24, supra, the granting of authority to the trial court implies a corresponding grant of discretion to surcharge or not. But the use of surchargeage has nothing to do with the right to attorneys’ fees. It merely permits their imposition through surcharge upon a showing of a right to the fees in the first place. This is obvious from the specific provisions for personal liability of the trustee enumerated in Tex.Rev.Civ.Stat.Ann. arts. 7425b-21 [tort] and 7425b-19(C) [contract] (Vernon 1960).

No one can argue with the general proposition that attorneys’ fees are not recoverable either in an action in tort or a suit upon a contract unless provided by statute or a contract between the parties. New Amsterdam Casualty Co. v. Texas Industries, Inc., 414 S.W.2d 914 (Tex.1967). But if suit is brought against a trustee upon a contract providing for attorneys’ fees¹ or upon a tort alleging fraud or willful conduct² can we say that the trial court may not through the power of surcharge enforce the trustee’s liabilities merely because attorneys’ fees are included?

I doubt that the legislature intended the conferring of such a power upon the courts to result in a limitation rather than an enlargement. The majority opinion creates such an impression. From the record before us, the trial court clearly was of the opinion that appellant had not brought himself within the prerequisites for attorney fees and his denial on that basis constituted an exercise of discretion independent of art. 7425b — 24, supra.³ The trial court having decided against the granting of attorneys’ fees, it follows that they cannot be surcharged.

In the absence of abuse of discretion, and I find none, I would uphold the trial court’s decision without the necessity of holding that as a matter of law the term surcharge does not include the assessment of attorneys’ fees.

For the foregoing reasons I dissent in part but concur in the result.

1 . Miner v. Paris Exchange Bank, 53 Tex. 559 (1880).

2 . Houston & T. C. R. Co. v. Oram, 49 Tex. 341 (1878); Pan American Petroleum Corp. v. Hardy, 370 S.W.2d 904 (Tex.Civ.App.—Waco 1963, err. ref. n. r. e.).

3 .The judgment recites that appellant is not entitled, as a matter of law, to attorney fees as against appellee individually nor to an imposition of surcharge upon appellee individually. The trial court correctly recognized that the granting of attorneys’ fees is independent of, and a prerequisite to, their enforcement by way of surcharge.