In Zaffirini v. Guerra, beneficiaries sued the trustees of a trust for breach of fiduciary duty and removal. No. 04-14-00436-CV, 2014 Tex. App. LEXIS 12761 (Tex. App.—San Antonio November 26, 2014, no pet.). The trustees paid their attorneys from the trust to defend the suit. Beneficiaries obtained a temporary injunction preventing the payment of fees from the trust. To obtain a temporary injunction, an applicant normally has to plead and prove a probable right of recovery and an irreparable harm in the interim. The court of appeals reversed the injunction, holding there was no evidence of irreparable harm: that the trustees could not pay back the money.

It should be noted that this decision conflicts with 183/620 Group Joint Venture v. SPF Joint Venture, where the court held that irreparable injury does not apply in breach of fiduciary duty suit where an injunction seeks to restrain parties from expending sums held by them as fiduciaries. 765 S.W.2d 901 (Tex. App.—Austin 1989, writ dism’d w.o.j.).

INTERESTING NOTE: If the Zaffirini court is correct, then no beneficiary will ever be able to meet the requirements for an injunction as against a corporate trustee. The corporate trustee will almost always have sufficient assets to make the trust whole if it is later determined that the trustee should not have paid fees from the trust.