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7/18/2019 Tom Benson Reply Brief
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No. 04-15-00087-CV
IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO
ESTATE OF SHIRLEY L. BENSON;
THOMAS MILTON BENSON
AS TRUSTEE OF THE
SHIRLEY L. BENSON TESTAMENTARY TRUST,Appellant ,
v.
R ENEE BENSON,Appellee .
Appeal from Probate Court No. 2, Dallas County, Texas,
Trial Court Cause 155,172 & 155172-A
R EPLY BRIEF OF APPELLANT
BECK R EDDEN LLP
David J. BeckState Bar No. 00000070Russell S. PostState Bar No. [email protected] FordState Bar No. [email protected] J. McGovernState Bar No. [email protected]
1221 McKinney, Suite 4500Houston, TX 77010(713) 951-3700(713) 951-3720 (Fax)
COUNSEL FOR APPELLANT, THOMAS MILTON BENSON, JR ., AS TRUSTEE OF THE
SHIRLEY L. BENSON TESTAMENTARY TRUST
ACCEPTED
04-15-00087-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/30/2015 3:07:33 PM
KEITH HOTTLE
CLERK
FILED IN4th COURT OF APPEALS SAN ANTONIO, TEXAS
07/30/2015 3:07:33 PM KEITH E. HOTTLE Clerk
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TABLE OF CONTENTS
Page
TABLE OF CONTENTS ................................................................................................... i
TABLE OF AUTHORITIES ............................................................................................ iii
I NTRODUCTION ............................................................................................................ 1
ARGUMENT IN R EPLY .................................................................................................. 3
I. Mr. Benson is mentally competent. ....................................................... 3
II. Petitioner failed to demonstrate that she is entitled to
preliminary relief. .................................................................................. 4
A. Petitioner fails to demonstrate a probable right torecovery on her only cause of action — Removal ofTrustee. ........................................................................................ 6
1. Petitioner fails to identify any material breachof trust. .............................................................................. 7
a. There is no evidence that Petitioner
needs a disbursement from the Trust. .................... 9
b. Moving the bookkeeper was not a breachof trust. .................................................................. 12
c. Severing personal contact with Petitionerwas not a breach of trust. ...................................... 14
d. Mr. Benson’s actions relating to LoneStar Bank were within the bounds ofreasonable judgment. ............................................ 15
i. Petitioner and the trial courtimproperly substituted their
judgment for that of the Trustee. ............... 16
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1884.1/565017 ii
ii. Mr. Benson’s decision to replacecertain members of Lone Star’s
board was not a breach of trust. ................. 17
iii. Mr. Benson’s decision to moveassets from Lone Star Bank wasnot a breach of trust. ................................... 19
e. Hostility alone does not justify removal. ............. 20
2. Petitioner cannot demonstrate that Mr. Bensoncaused “material financial loss” to the Trust. ................. 22
B. The trial court failed to consider whether the assertedharms were irreparable. ............................................................. 25
C. The trial court’s failure to consider less-intrusiveremedies is fatal to its grant of preliminary relief. .................... 26
III. The trial court’s orders are facially flawed and void. ......................... 28
A. Lack of Notice. .......................................................................... 28
B. The trial court’s Second Amended Order is faciallyvoid. ........................................................................................... 30
PRAYER ..................................................................................................................... 31
CERTIFICATE OF SERVICE .......................................................................................... 33
CERTIFICATE OF COMPLIANCE .................................................................................. 34
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TABLE OF AUTHORITIES
CASE PAGE(S)
Akin v. Dahl ,
661 S.W.2d 911 (Tex. 1983) .................................................................... 1, 20, 21
In re Bass,171 F.3d 1016 (5th Cir. 1999) ............................................................................ 17
Benefield v. State,266 S.W.3d 25 (Tex. App. — Houston[1st Dist.] 2008, no pet.) ..................................................................................... 26
Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex. 2002)................................................................................... 4
Camp Mystic, Inc. v. Eastland ,399 S.W.3d 266 (Tex. App. — San Antonio2012, no pet.) ...................................................................................................... 28
Cardinal Health Staffing Network, Inc. v. Bowen,106 S.W.3d 230 (Tex. App. — Houston[1st Dist.] 2003, no pet.) ................................................................................... 2, 5
Elliott v. Weatherman,396 S.W.3d 224 (Tex. App. — Austin2013, no pet.) ............................................................................................ 5, 26, 30
First Nat’l Bank of Beaumont v. Howard ,229 S.W.2d 781 (Tex. 1950) ...................................................................... 8, 9, 10
Frequent Flyer Depot, Inc. v. Am. Airlines, Inc.,281 S.W.3d 215 (Tex. App. — Fort Worth2009, pet. denied) .................................................................................................. 6
Gamboa v. Gamboa,383 S.W.3d 263 (Tex. App. — San Antonio2012, no pet.) ........................................................................................................ 8
Gonzales v. Tex. Employment Com’n,653 S.W.2d 308 (Tex. App. — San Antonio1983, writ refused n.r.e.) ..................................................................................... 29
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1884.1/565017 iv
Int’l Broth. of Elec. Workers Local Union 479v. Becon Const. Co., Inc.,104 S.W.3d 239 (Tex. App. — Beaumont2003, no pet.) ...................................................................................................... 30
Intercont’l Terminals Co. v. Vopak N. Am., Inc.,354 S.W.3d 887 (Tex. App. — Houston[1st Dist.] 2011, no pet.) ....................................................................................... 1
Jochec v. Clayburne,863 S.W.2d 516 (Tex. App. — Austin1993, writ denied) ..................................................................................... 7, 15, 16
Kappus v. Kappus,284 S.W.3d 831 (Tex. 2009) .............................................................................. 21
Keisling v. Landrum,218 S.W.3d 737 (Tex. App. — Fort Worth2007, pet. denied) ............................................................................................ 7, 21
Kennedy v. Briere,45 Tex. 305 (1876) .............................................................................................. 20
Lagos v. Plano Econ. Dev. Bd., Inc.,378 S.W.3d 647 (Tex. App. — Dallas
2012, no pet.) .................................................................................................. 4, 27
Markel v. World Flight, Inc.,938 S.W.2d 74 (Tex. App. — San Antonio1996, no writ) ...................................................................................................... 28
Shannon v. Frost Nat’l Bank of San Antonio,533 S.W.2d 389 (Tex. Civ. App. — San Antonio1975, writ ref’d n.r.e.) ......................................................................................... 13
State v. Rubion,308 S.W.2d 4 (Tex. 1957) ..................................................................................... 8
Texas Commerce Bank, N.A. v. Grizzle,96 S.W.3d 240 (Tex. 2002)............................................................................. 7, 15
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Tuma v. Kerr County,336 S.W.3d 277 (Tex. App. — San Antonio2010, no pet.) ...................................................................................................... 30
Univ. Interscholastic League v. Torres,
616 S.W.2d 355 (Tex. Civ. App. — San Antonio1981, no writ) ...................................................................................................... 30
Walker v. Packer ,827 S.W.2d 833 (Tex. 1992) .............................................................................. 25
Winter v. Natural Res. Def. Council, Inc.,555 U.S. 7 (2008) ................................................................................................ 28
Statutes
Tex. Prop. Code§ 113.082 ............................................................................................................... 6§ 113.082(a)(1) ................................................................................................... 22§ 113.151(a) ........................................................................................................ 13§ 114.001 ............................................................................................................. 20§ 114.001(c) ........................................................................................................ 25§ 114.008(a) .......................................................................................................... 6
§ 114.008(a)(3) ................................................................................................... 25
Other Authorities
Black’s Law Dictionary (10th ed. 2014) ............................................................. 3, 25
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INTRODUCTION
The issues presented in this appeal arise in the context of a family dynamic
that is less than perfect. That there are tensions within the family is obvious.
Petitioner finds grievances in “holiday part[ies]” (Appellee’s Br. 7), changes to
family traditions (id . at 4), and even invitations to “Tom’s suite” at the Superdome.
Id. But strained family relations are not a sufficient basis to temporarily remove a
trustee or to appoint receivers. See Akin v. Dahl , 661 S.W.2d 911, 913 (Tex. 1983)
(“Ill will or hostility between a trustee and the beneficiaries of the trust, is,
standing alone, insufficient grounds for removal of the trustee from office.”).
There must be more. But in this case, there is nothing more.
Petitioner tries to mask her lack of substance with various sleights of hand.
First, she speculates about the settlor’s intent, without any evidence and without
any suggestion that the Trust itself is ambiguous. See, e.g., Appellee’s Br. 16
(speculating that her mother wanted her to be “generous[ly]” provided for).
Because the Trust instrument is unambiguous, this exercise is illegitimate.
Second, Petitioner attempts to shift the burden of proof by suggesting that
Mr. Benson must present evidence justifying his actions. See Appellee’s Br. 17
(“no witness provided any explanation for the cutoff of Renee’s maintenance and
support”). The burden, however, is hers. See Intercont’l Terminals Co. v. Vopak
N. Am., Inc., 354 S.W.3d 887, 891 (Tex. App. — Houston [1st Dist.] 2011, no pet.).
Trustees are not required to justify their actions to dissatisfied beneficiaries.
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Third, Petitioner believes she is entitled to prejudgment relief without even
proving the traditional requirements for such relief. Appellee’s Br. 13, 27. But
statutes providing for final injunctive relief, like Property Code § 114.008, do not
alter the requirements for temporary injunctions. See Cardinal Health Staffing
Network, Inc. v. Bowen, 106 S.W.3d 230, 237 (Tex. App. — Houston [1st Dist.]
2003, no pet.) (“If [a statute] governs only final remedies, then it preempts only
those rules applicable to final remedies, but not those rules applicable to
preliminary relief, such as temporary injunctions.”).
Perhaps even more unsettling than all these attempts to skirt the applicable
substantive and procedural law are Petitioner’s continued efforts to suggest that her
father is incompetent. See Appellee’s Br. 3 (suggesting Mr. Benson is “out of it”).
She does this knowing full well that her father has been found fully competent.
See Tab I. It is not clear why she continues to suggest otherwise to this Court.
It is a bedrock principle of trust law that courts cannot second-guess trustees
(much less appoint substitute trustees) simply because of a difference in judgment
or a dissatisfied beneficiary. If trust instruments could be discarded so casually,
they would be worthless and courts would be unworthy of the public’s confidence.
Looking at the text of this Trust, the facts, and the law — not emotional appeals —
the inescapable conclusion is that the trial court abused its discretion in granting
the temporary injunction and in appointing temporary receivers.
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ARGUMENT IN R EPLY
I.
Mr. Benson is mentally competent.
Despite Petitioner’s continued insinuations to the contrary, there is no longer
any doubt that Mr. Benson is mentally competent. While the trial court lamented
that “it would be hard to find a reported case with more health issues and less
professional analysis,” CR 86, it “always maintained the finding on capacity would
remain in New Orleans, the forum that is proper and the litigant’s choice.” Id.
That finding has now been made. Petitioner simply refuses to accept it.
The Civil District Court for the Parish of Orleans (“Louisiana Court”) held a
full interdiction1 proceeding, focused exclusively on Mr. Benson’s mental capacity.
Petitioner was a Plaintiff in that proceeding. Mr. Benson was subjected to a two-
day interview with a panel of three doctors, as well as an hour-long “Watermeier
hearing,” wherein Judge Kern Reese personally questioned Mr. Benson to
determine his mental competency. These evaluations were supplemented at trial
by three witnesses from each side. At the Watermeier hearing, the court found that
Mr. Benson “had clarity of thought and volition,” “definitively affirmed the actions
he took in December and January, unequivocally,” and had “the capacity to make
reasoned decisions.” Tab I at 6.
1 An “interdiction” is “[t]he act of depriving a person of the right to handle his or her own affairs because of mental incapacity.” INTERDICTION, Black ’s Law Dictionary (10th ed. 2014).
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“The most credible fact witness”— in the Louisiana Court’s estimation — was
Mr. Benson’s chief nurse. She observed that Mr. Benson “agonized over
distancing himself from his family members, cried about it, read the December 27,
2014 letter three times, and then decided to place his signature on the document.”
She emphasized that no one stood over him while he signed it. “It was his
decision.” Tab I at 5-6.
Judge Reese’s assessment was confirmed by the evidence presented at trial.
Utlimately, the court concluded that Mr. Benson “is able to make reasoned
decisions as to his person and his property and therefore, this court WILL NOT
order an interdiction of any kind in these proceedings.” Tab I at 6. Petitioner’s
continued insinuations contradicting this finding cannot support the trial court’s
grant of preliminary relief.
II.
Petitioner failed to demonstrate that she is entitled to preliminary relief.
Texas law is clear: a temporary injunction may not issue without the
applicant proving (1) a probable right to relief on the merits, (2) irreparable harm,
and (3) the lack of a lesser adequate remedy. Butnaru v. Ford Motor Co., 84
S.W.3d 198, 204 (Tex. 2002); Lagos v. Plano Econ. Dev. Bd., Inc., 378 S.W.3d
647, 650 (Tex. App. — Dallas 2012, no pet.). It is equally clear that a receivership
should not be imposed unless there is no other adequate remedy at either law or
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equity — including a temporary injunction. Elliott v. Weatherman, 396 S.W.3d
224, 228-29 (Tex. App. — Austin 2013, no pet.).
Petitioner is wrong to claim that “no showing of harm or lesser intrusive
methods is required before appointing a receivership under § 114.008.” Appellee’s
Br. 27. As the Austin Court of Appeals explained in Elliott , “[e]ven if a specific
statutory provision authorizes a receivership, a trial court should not appoint a
receiver if another remedy exists at law or in equity that is adequate and complete.”
396 S.W.3d 224, 228-29 (Tex. App. — Austin 2013, no pet.). Moreover, even when
a statute claims to provide the exclusive final remedies for a cause of action,2
preliminary relief continues to be governed by the common law. Cardinal Health,
106 S.W.3d at 237 (“If [a statute] governs only final remedies, then it preempts
only those rules applicable to final remedies, but not those rules applicable to
preliminary relief.”).
Petitioner had the burden in the trial court of demonstrating (1) a probable
right to recovery on her cause of action against Mr. Benson, (2) an imminent threat
of irreparable harm, and (3) the inadequacy of less-intrusive remedies. Petitioner
failed to satisfy these requirements.
2 Unlike the statute at issue in Cardinal Health — which claimed to provide “exclusive” remedies
and to “preempt any other criteria or . . . remedies in an action to enforce a covenant not tocompete under common law or otherwise”— nothing in the text of Property Code § 114.008claims to provide the exclusive remedies for breach of Trust or to preempt the common law foreither final or preliminary relief.
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A.
Petitioner fails to demonstrate a probable right to recovery on her
only cause of action — Removal of Trustee.
Petitioner pleaded a cause of action for removal of trustee under Property
Code § 113.082. CR 12 (“[P]ursuant to Texas Property Code § 113.082, Petitioner
requests that this Court remove the current Trustee.”). On appeal, Petitioner
ignores her claim under § 113.082 — not mentioning it even once. Instead, she tries
to redirect the Court’s attention to another statute, analyzing whether the trial
court’s ruling satisfied the “elements” of Property Code § 114.008. However,
§ 114.008 is not a cause of action — it merely provides remedies for a “breach of
trust that has occurred or might occur.” Tex. Prop. Code § 114.008(a). And even
that statute provides that a trustee may only be removed “as provided under
Section 113.082.” Thus, Petitioner must present evidence supporting each element
of § 113.082 to obtain preliminary relief. Frequent Flyer Depot, Inc. v. Am.
Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App. — Fort Worth 2009, pet. denied)
(“A probable right of recovery is shown by alleging a cause of action and
presenting evidence tending to sustain it.”).
Section 113.082(a)(1) provides that a trustee may be removed if “the trustee
materially violated or attempted to violate the terms of the trust and the violation or
attempted violation results in a material financial loss to the trust.” Tex. Prop.
Code § 113.082. Both requirements must be satisfied.
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Thus, to obtain a temporary injunction, Petitioner was required to present
evidence (1) that Mr. Benson materially violated or attempted to materially violate
the terms of the trust and (2) that his violation or attempted violation resulted in
material financial loss. Because she failed to do so, the trial court abused its
discretion in granting preliminary relief.
1. Petitioner fails to identify any material breach of trust.
Petitioner’s brief does not contain a single argument that Mr. Benson
breached any duty outlined in the text of the Trust or the statute. Rather, she
complains that Mr. Benson is not managing the Trust in the manner to which she
has become accustomed. However, “the trust instrument does not state that
[trustee] must give into appell[ee]’s every support and maintenance whim.”
Keisling v. Landrum, 218 S.W.3d 737, 743-44 (Tex. App. — Fort Worth 2007, pet.
denied).
In asserting a trustee’s generally broad, ephemeral duties, Petitioner forgets
that the Trust and the statute can override such duties. See Texas Commerce Bank,
N.A. v. Grizzle, 96 S.W.3d 240, 249 (Tex. 2002) (“While the Trust Code imposes
certain obligations on a trustee . . . the Trust Code also permits the settlor to
modify those obligations in the trust instrument.”); Jochec v. Clayburne, 863
S.W.2d 516, 520 (Tex. App. — Austin 1993, writ denied) (specific trust provisions
may modify general fiduciary duties). This Trust instrument does so.
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To demonstrate a material breach of trust, therefore, Petitioner must prove
that there was a breach of the Trust itself. As with any written document, the first
step in determining the meaning of a trust is the text. “In construing a trust, we
ascertain the intent of the grantor from the language in the four corners of the
instrument.” Gamboa v. Gamboa, 383 S.W.3d 263, 273 (Tex. App. — San Antonio
2012, no pet.); see also State v. Rubion, 308 S.W.2d 4, 8 (Tex. 1957) (when
document “is plain and unambiguous we may look to it alone to find the intention
of the testatrix and cannot consider extrinsic evidence of intention.”).
Most of Petitioner’s complaints arise in areas where the Trust explicitly
grants Mr. Benson broad discretion to make decisions. Mr. Benson agrees with
Petitioner that questions regarding the outer limits of such discretion are decided
by inquiring into whether the trustee is “acting in that state of mind in which the
settlor contemplated that it should act?” First Nat ’l Bank of Beaumont v. Howard ,
229 S.W.2d 781, 783 (Tex. 1950). The disagreement between Petitioner and Mr.
Benson is how one determines the settlor’s contemplated state of mind. Petitioner
believes that the settlor’s intent should be deduced from extrinsic evidence, such as
testimony at a temporary injunction hearing and a history of generous
disbursements. See Appellee’s Br. 16. Mr. Benson believes that the settlor’s intent
should be deduced from the plain text of the Trust.
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The law supports Mr. Benson’s view. As the Supreme Court made clear in
Howard , the three-part test relied upon by Petitioner only applies if “the settlor’s
intention . . . is not made clear by the language used.” 229 S.W.2d at 783.
Petitioner makes no claim that the Mrs. Benson’s Will is ambiguous. Instead, she
skips the plain text and relies entirely on a three-part test for resolving ambiguity
set forth in Howard . This legal error undermines the entirety of Petitioner’s
analysis, as it allows her to speculate as to Mrs. Benson’s “intent” by relying
exclusively on Petitioner’s personal view of extrinsic evidence. Focusing on the
precise duties owed, it is clear that Petitioner failed to demonstrate a material
breach of trust.
a.
There is no evidence that Petitioner needs a
disbursement from the Trust.
Mr. Benson’s duty to make distributions to Petitioner is set forth in Section
VI of Mrs. Benson’s Trust: “the Trustees shall have the power to pay to my
children from the principal such amounts as are in their sole discretion necessary to
provide adequately for the health, maintenance and support of my said children.”
Tab H at 7 (emphasis added). Thus, the only question before the trial court was
whether Mr. Benson abused his discretion when he determined that a monthly
$10,000 payment was not “necessary to provide adequately” for Petitioner. To ask
that question is to answer it; there is no serious argument that $10,000 per month is
“necessary to provide adequately” for Petitioner’s essential needs.
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Under Howard , the starting point for this analysis is the plain language of
the Trust. Mrs. Benson provided for various beneficiaries in different manners.
For some, she provided that they would receive certain amounts per month for the
rest of their lives. Tab H at 6. Regarding her husband, the Trust provides that the
Trustee, in its sole discretion, “shall have the power to pay from the principal such
amounts as are in its discretion necessary to provide adequately for the health,
maintenance and support of my said husband in the manner to which he is
accustomed at the time of my death.” Tab H at 7 (emphasis added). By contrast,
the provision applicable to Petitioner did not guarantee monthly payments or the
maintenance of a luxurious lifestyle. Petitioner is simply trying to rewrite the
Trust.
Given the plain language of the Trust, Petitioner’s complaint falls well
within the scope of the Trustee’s reasonable judgment— as Howard itself confirms.
See Howard , 229 S.W.2d at 786 (affirming Trustee’s decision not to make
discretionary disbursements without evidence of need). Petitioner has not even
alleged that she has “need” of a $10,000 monthly disbursement, and the record
contains no evidence upon which the trial court could permissibly conclude that it
was “outside the bounds of reasonable judgment” for Mr. Benson to determine that
Petitioner did not need an additional $10,000 per month to “adequately” provide
for her needs.
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Indeed, the record proves that such a disbursement would be superfluous.
Since 2009, Mr. Benson has established six separate irrevocable trusts for
Petitioner’s benefit, which are controlled by other individuals. 3 Supp. CR 3-4.
Those trusts contain millions of dollars in assets, including a 26-story office
building and significant real estate holdings. Mr. Benson — in his discretion as
Trustee —could certainly consider Petitioner’s income from the other trusts he
created for her benefit and determine that an additional $10,000 disbursement per
month is unnecessary to “adequately” provide for her needs.
Petitioner cannot — and indeed does not — argue that Mr. Benson has failed to
adequately provide for her needs under the terms of the Trust. Rather, by skipping
the threshold “ambiguity” determination of the Howard test, Petitioner deduces
that “the most reasonable conclusion is that Shirley intended that, as Trustee, Tom
would lovingly evaluate the health, maintenance and support needs of his and
Shirley’s children, and . . . make appropriately generous provisions for their
needs.” Appellee’s Br. 16 (emphasis added).
Nothing in the Trust suggests that Mrs. Benson intended either “loving[]”
evaluation of Petitioner’s needs or a “generous provision” for those needs. More
importantly, Mrs. Benson did not intend that the failure to “lovingly” evaluate
Petitioner’s needs would be grounds for removal. It would be absurd to conclude
that Frost Bank — the original Trustee —could be removed for failing to “lovingly”
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evaluate Petitioner’s needs. The same standard must apply to the current Trustee.
But even if that were the test, Petitioner cannot credibly assert that Mr. Benson has
failed to “lovingly” and “generously” provide for her needs— six other irrevocable
trusts and $2.4 million in disbursements from this Trust demonstrate otherwise.
The “most reasonable” conclusion is that Mrs. Benson meant what she said
in the plain language of her Trust —that the Trustee will have the “sole discretion”
to determine what payments are “necessary” to provide “adequately” for
Petitioner’s health, maintenance and support. Tab H at 7. Petitioner does not have
a right to a $10,000 per month stipend. She has not even argued that such a stipend
is “necessary” to “provide adequately” for her needs. Nor has she presented any
evidence that Mr. Benson acted outside the bounds of reason in adhering to this
standard. Mr. Benson did not breach the Trust by acting in accordance with its
plain language.
b.
Moving the bookkeeper was not a breach of trust.
Because nothing in the Trust alters or adds to the communication obligations
between the trustee and beneficiaries, the duties codified in the Property Code
govern. See Tab H at 9 (“The trusts shall be administered by the Trustees in
accordance with the provisions of the Texas Trust Act, except the terms of this
instrument shall control when in conflict with the provisions of said Act.”).
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Property Code § 113.151 — Demand for Accounting —outlines Petitioner’s
right to information about Trust assets. It provides that “[a] beneficiary by written
demand may request the trustee to deliver to each beneficiary of the trust a written
statement of accounts covering all transactions since the last accounting or since
the creation of the trust, whichever is later.” Tex. Prop. Code § 113.151(a).
However, that obligation is not ongoing and unlimited, as “the trustee is not
obligated or required to account to the beneficiaries of a trust more frequently than
once every 12 months.” Id. at § 113.151(a).
Petitioner has presented no evidence demonstrating that Mr. Benson violated
this duty by moving the Trust’s bookkeeper, Mary Polensky. There is no evidence
that Petitioner ever requested an accounting,3 so Mr. Benson was not obligated to
provide one. Shannon v. Frost Nat’l Bank of San Antonio, 533 S.W.2d 389, 393
(Tex. Civ. App. — San Antonio 1975, writ ref’d n.r.e.) (duty to disclose triggered
by request). As such, there is no evidence that Petitioner was deprived of any
information to which she was entitled, and no evidence that a request for such
information would be ignored in the future.
3 Petitioner requested an accounting for the first time in her Petition for Removal of Trustee.However, the Petition did not state that such a request had ever been made — or refused — prior tofiling this action, and the request was not asserted as grounds for removal.
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Petitioner ignores the statutory limitations on her right to information,
complaining that Mr. Benson’s “actions in denying Renee access to the
bookkeeper of Shirley’s Trust amounted to a breach of trust, and threatened a
continuing breach of tr ust in the future” by “insur[ing] that the beneficiaries could
not be informed about the trust in the future.” Appellee’s Br. 25. Nonsense.
Beneficiaries have no right to make a trustee’s bookkeeper an indentured servant.
Petitioner’s Frost Bank example is once again instructive. Petitioner would have
no right to demand that Frost Bank station its bookkeeper at Petitioner’s office.
Nor would Petitioner be entitled to information regarding Trust assets any more
often than once a year. Petitioner’s claims are based on her own personal view of
trustee-beneficiary relations, not the law. Such a claim would be dismissed if
made against Frost Bank. The same standard must be applied to Mr. Benson.
c.
Severing personal contact with Petitioner was not a
breach of trust.
Petitioner’s “severing communication” complaint suffers the same flaw,
confusing Mr. Benson’s professional obligations with his personal preferences.
The Trust — which originally named Frost Bank as Trustee — does not contain any
language tying the Trustee’s fiduciary obligations to social interaction with the
beneficiaries. Thus, as long as Mr. Benson fulfills his disclosure and maintenance
duties as Trustee, see infra Parts A.1.a-b, there is no independent requirement that
he maintain social contact with Petitioner.
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Petitioner’s “Frost Bank” hypothetical nicely demonstrates this distinction.
There is the Trustee relationship — accompanied by all the duties imposed upon an
entity such as Frost Bank — and the personal relationship, which is beyond the
scope of Mr. Benson’s fiduciary duties. Just as Frost Bank routinely fulfills its
fiduciary duties to disclose financial information and monitor maintenance
requirements without inviting beneficiaries over for Christmas or granting them
access to private suites at Saints’ football games, so too can Mr. Benson. He can
provide an accounting and monitor Petitioner’s maintenance needs through her
requests for such actions. As no such requests have been made, there was no basis
for the trial court to determine that Mr. Benson’s severance of personal contact
constituted a breach of trust.
d.
Mr. Benson’s actions relating to Lone Star Bank were
within the bounds of reasonable judgment.
There is no question that Mr. Benson has been an incredibly successful
businessman. The assets contained in Mrs. Benson’s estate were largely a result of
Mr. Benson’s business prowess. As such, it is not surprising that when she named
her husband as Trustee she gave him broad discretion to manage the Trust’s assets.
This grant of discretion removes Mr. Benson from the generalized fiduciary duties
cited by Petitioner and gives him broad discretion to manage the Trust as he sees
fit. See Texas Commerce Bank , 96 S.W.3d at 249; Jochec, 863 S.W.2d at 520.
Petitioner’s complaints about Lone Star Bank ignore this discretion.
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Section VII.F of the Trust provides that the Trustee “may within [his] full
discretion invest in . . . non-productive or speculative investments and business
ventures.” Tab H at 9. It also provides that Mr. Benson “may generally transact
trust affairs with the freedom and absence of restraint enjoyed by an individual in
the management of his own affairs.” Id. Indeed, it was just this sort of freedom
that allowed Mr. Benson to purchase Lone Star Capital Bank (“Lone Star”) and
add it to the Trust’s assets. That freedom also allowed him to continue funding
Uptown Blanco —Petitioner’s pet project in which the Trust has invested more than
$20 million, 4 RR 31, with no expectation that it would ever make a profit. 3 RR
162.
Under the Trust, Mr. Benson has the same discretion he would have in the
control of his own business affairs. Neither the Trust nor the Property Code says
anything about the daily details of managing a trust, such as which bank should
hold Trust funds or who should serve on the board of directors. The only
indication of Mrs. Benson’s intent on these issues is that such administrative
decisions are left to the discretion of Mr. Benson.
i.
Petitioner and the trial court improperly
substituted their judgment for that of the Trustee.
Ignoring the unambiguous language granting Mr. Benson authority to
exercise his discretion over Trust management, Petitioner seeks to substitute her
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own judgment. Petitioner’s error mirrors that of the trial court, which openly
questioned Mr. Benson’s discretionary judgments. See, e.g., Addendum at 1-2.
This judicial second-guessing was improper. “Texas courts are limited in
their powers over the trustee of a discretionary trust, prohibited by law from
interfering with the discretion of the trustee absent a clear showing of fraud or
other egregious conduct.” In re Bass, 171 F.3d 1016, 1029 (5th Cir. 1999). Thus,
it was not necessary for the trial court to agree with Mr. Benson’s discretionary
managerial decisions. Nor was it Mr. Benson’s burden to demonstrate the validity
of his actions — that power is vested in him by the plain text of the Trust. Rather, it
was Petitioner’s burden to demonstrate a material breach of some specific duty
resulting in a material financial harm to the Trust and its assets. She did not do so.
ii.
Mr. Benson’s decision to replace certain members
of Lone Star’s board was not a breach of trust.
Mr. Benson’s decision to replace certain board members of Lone Star does
not constitute a breach of trust. The right to control the management of trust
businesses is essential to and synonymous with a trustee’s duty to ensure that the
business is managed properly. The record is abundantly clear that no board
member possesses any right to his or her position, 3 RR 131-32, and the plain text
of the Trust makes it clear that such decisions are left to Mr. Benson’s discretion.
Nothing in the Trust, the Property Code, or common law gives Petitioner a voice in
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who sits on the board of Lone Star or the right to substitute her management
preferences for those of the Trustee.
The record demonstrates that Mr. Benson’s decisions regarding Lone Star
were solidly within his discretion. Mr. Benson came to the conclusion that
Petitioner “could not function up to his standards as a businesswoman.”
Addendum 2. Moreover, Tom Roddy testified that he planned to “step down as
chairman” of Lone Star in May of 2015. 3 RR 137. If the word “discretion”
means anything, it certainly includes the right to (1) replace a board member in
whom the Trustee lacks confidence and (2) expedite the transition of a chairman
who was already on his way out the door.
Moreover, Mr. Benson could no longer trust the employees charged with
running Lone Star. In December 2014, Mr. Roddy approached Mr. Benson’s
personal bookkeeper — Mary Polensky — and requested a list of all Mr. Benson’s
accounts and the names of authorized signers. Of the 40 accounts Ms. Polensky
kept for Mr. Benson, only two related to the Trust. Ms. Polensky relayed the
request to Mr. Benson, who informed her that if Mr. Roddy wanted his personal
records, he needed to call and explain why. When Ms. Polensky explained this,
Mr. Roddy urged that they should be provided anyway, as he was asking on behalf
of Petitioner. Ms. Polensky informed Mr. Benson of the renewed request, and the
answer was the same: “If they want that information, Renee needs to call me.”
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4 RR 16. Mr. Roddy had even contacted Mr. Benson’s personal physician without
his permission. 3 RR 116.
These inappropriate inquir ies into Mr. Benson’s personal affairs undermined
Mr. Benson’s trust in Petitioner, Mr. Roddy, and their associates. He justifiably
ordered Ms. Polensky to leave Renson’s office— where she was constantly in close
proximity to Petitioner and Mr. Roddy — and move to another location, as he was
“tired of them trying to get [his personal] information” from her. 4 RR 19.
The record demonstrates that, in the weeks leading up to Mr. Benson’s
decision to replace certain board members, he lost faith in Petitioner’s a bilities as a
businesswoman and he lost his ability to trust Petitioner, Mr. Roddy, and their
associates on the board of Lone Star. His decision to replace these board members
was well within his discretion.
iii.
Mr. Benson’s decision to move assets from Lone
Star Bank was not a breach of trust.
Petitioner cannot point to a single duty that was breached by Mr. Benson’s
transfer of funds from Lone Star to Frost Bank. In an attempt to shift the burden of
proof, Petitioner argues that Mr. Benson had to demonstrate “a compelling need”
before transferring $20 million of his personal funds and $4.76 million of Trust
funds to another well-respected bank. Appellee’s Br. 22. Nothing in the Trust or
the Property Code requires such a justification. Nor is there any evidence that
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Shirley Benson intended that such administrative decisions should not be left to the
Trustee’s discretion.
Even assuming arguendo that the movement of $4.76 million in Trust
funds somehow caused harm to Lone Star, merely causing harm to a trust asset in
an exercise of business judgment is not a breach of duty. See Kennedy v. Briere,
45 Tex. 305, 308 (1876) (“If [a trustee] ‘acts strictly within the line of his duty,
does not exceed the limit of the discretion intrusted to him, and is guilty of no
fraud,--he cannot be held responsible for any loss which may occur to the trust
estate.’”); Tex. Prop. Code § 114.001 (“trustee is not liable to the beneficiary for a
loss or depreciation in value of the trust property or for a failure to make a profit
that does not result from a failure to perform the duties set forth in this subtitle or
from any other breach of trust”). It is the act itself— not the resulting harm — that
constitutes a breach of trust. Without some duty preventing Mr. Benson from
transferring personal assets and Trust assets out of Lone Star, there can be no
breach of trust for that action.
e.
Hostility alone does not justify removal.
It is no secret that there are family tensions. However, “[i]ll will or hostility
between a trustee and the beneficiaries of the trust, is, standing alone, insufficient
grounds for removal of the trustee from office.” Akin, 661 S.W.2d at 913. Rather,
to justify removal on the basis of hostility, the Petitioner must prove that hostility
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caused Mr. Benson to commit a breach of trust. Id. at 914. A mere finding that
Mr. Benson “could probably not serve as trustee . . . . is insufficient.” Id.
It is essential to be precise when defining “hostility” and a trustee’s “duties.”
“A good-faith disagreement between an executor and the estate . . . is not grounds
for removal as a matter of law.” Kappus v. Kappus, 284 S.W.3d 831, 839 (Tex.
2009). This is particularly important where, as here, removal would frustrate the
settlor’s decision to appoint her spouse as Trustee of the assets they earned
together for the benefit of their children. Kappus, 284 S.W.3d at 839 (allowing
removal for good-faith disagreement would “frustrate the testator’s choice of
executor (particularly the common practice of appointing spouse-executors)”).
Parental trustee-beneficiary relationships are often accompanied by conflict.
A trustee’s duties, however, continue to be governed by the terms of the trust and
the Property Code — they do not include a duty to satisfy the whims of a
beneficiary. Keisling , 218 S.W.3d at 743-44 (“the trust instrument does not state
that Lynn must give into appellant’s every support and maintenance whim”). As
the Supreme Court stated in Akin, “[p]reservation of the trust and assurance that its
purpose be served is of paramount importance in the law.” 661 S.W.2d at 914. In
order to protect trustees against the whims of their beneficiaries, the Court in Akin
concluded that it “will not sanction the creation of hostility by a beneficiary in
order to effectuate the removal of a trustee.” Id. Nothing in the record suggests
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that Mr. Benson has failed to preserve the trust or its purpose. Petitioner has not
even alleged any dissipation of Trust assets.
Petitioner is not the only beneficiary of the Trust, and the Trust was not
established to give Petitioner as much money as possible as soon as possible.
Moreover, her argument that failure to cater to her whims constitutes “hostility”
proves too much — if successful, it would swallow the rule of Akin. Absent any
evidence that Mr. Benson committed a breach of trust, Petitioner cannot
demonstrate a probable right to recovery on the basis of hostility.
2.
Petitioner cannot demonstrate that Mr. Benson caused
“material financial loss” to the Trust.
In addition, Petitioner presented no evidence that any of the conduct at issue
“result[ed] in a material financial loss to the trust.” Tex. Prop. Code
§ 113.082(a)(1). Because such proof is essential in a cause of action for removal,
this is an independent ground for reversal.
Petitioner barely even tries to meet this burden. With respect to transferring
funds to Frost Bank, Petitioner consistently claims that the amount transferred was
“$25 million” or “12% of bank assets.” But in reality, only $4.76 million — or 2%
of bank assets — actually belonged to the Trust. 3 RR 118-19. Petitioner does not,
and cannot, argue that Mr. Benson’s fiduciary duties prevented him from moving
his personal assets to a different bank. Mr. Roddy, Chairman of Lone Star Bank,
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admitted that Mr. Benson “absolutely” had the right to transfer his own money out
of Lone Star Bank. 3 RR 119.
Thus, the real question is whether Petitioner presented any evidence that Mr.
Benson’s decision to transfer 2% of Lone Star Bank’s assets to another institution
caused a material financial loss for the bank. The record is absolutely devoid of
evidence on this point. Indeed, Petitioner ’s evidence suggests that the bank has “a
lot of liquidity,” 4 RR 85, and that Lone Star’s $11 million held in correspondent
banks would easily have covered a transfer of $4.76 million without the need for
any additional action. See 4 RR 86. Because all of the evidence regarding “harm”
was based upon the transfer of $25 million, see, e.g., 3 RR 78-79, 4 RR 83-87,
Petitioner failed to meet her burden of demonstrating that Mr. Benson’s transfer of
$4.76 million of Trust assets caused material financial harm to the Trust.
Moreover, Petitioner even failed to demonstrate that the $25 million transfer
caused a material financial loss to the Trust. Petitioner admits — as she must — that
the reduction in deposits “has no impact on the book value of the bank.”
Appellee’s Br. 22. And contrary to Petitioner ’s contention, the withdrawal did not
result in a crisis for the bank. Mr. Buck —the bank’s President — was informed of
the withdrawal two weeks before it occurred and was able to manage it smoothly.
4 RR 84, 86 (“So to your credit it sounds like you were very well prepared . . . ?
A: We were. Yes, we were.”). Indeed, no evidence suggests that the withdrawal
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constituted a “crisis” at the bank. That descriptor— while employed frequently by
opposing counsel at the hearing — was never uttered by a witness. See 4 RR 86.
Petitioner’s cry of mismanagement rings particularly hollow when compared
to the Trust’s investment in Uptown Blanco— a perennial drain on Trust assets
done at Petitioner’s request. Of course, Mr. Benson has complete discretion under
the Trust to “invest in or participate in non-productive or speculative investments
and business ventures,” so the point is not that there is anything amiss with
Uptown Blanco, but rather that Petitioner cannot openly and actively encourage the
dissipation of Trust assets in one breath and then cry “wolf” when the Trustee
takes an action that has absolutely no economic impact on the Trust.
Finally, Petitioner presented no evidence that a breach of Mr. Benson’s duty
to disclose or communicate resulted in material financial harm to the Trust.
Absent evidence that Mr. Benson’s actions caused the Trust to incur a ma terial
financial loss, the trial court lacked any basis to find that Petitioner has a probable
right to recovery on her cause of action. Because Petitioner has not shown both a
material breach of trust and a material financial loss, temporary relief is
inappropriate.
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B. The trial court failed to consider whether the asserted harms were
irreparable.
The trial court abused its discretion by failing to require Petitioner to
demonstrate that her asserted harms were “irreparable.” This failure is readily
apparent from the trial court’s own statement of the law:
It is sufficient to consider only the trustee’s actions and statementsand whether they damaged the trust.
Supp. CR 16.
This statement is incorrect. Preliminary injunctive relief requires not only
har m but also evidence that the harm is “irreparable.” Because “[a] trial court has
no ‘discretion’ in determining what the law is or applying the law to the facts,”
Walker v. Packer , 827 S.W.2d 833, 840 (Tex. 1992), it was an abuse of discretion
to grant Petitioner’s relief without considering whether her harm was irreparable.
Petitioner argues that its asserted injuries are by “definition irreparable
harm,” but fails to reference or consult the actual definition of irreparable harm —
the unavailability of monetary damages. IRREPARABLE INJURY, Black’s Law
Dictionary (10th ed. 2014) (“An injury that cannot be adequately measured or
compensated by money”). Petitioner’s brief ignores the fact that damages are
available to remedy any harm caused by a trustee. See Tex. Prop. Code
§ 114.001(c) (“A trustee who commits a breach of trust is chargeable with any
damages resulting from such breach of trust.”); Tex. Prop. Code § 114.008(a)(3)
(any breach of trust may be remedied by “compelling the trustee to pay money or
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to restore property”). Because any potential losses from Mr. Benson’s alleged
breach of trust are recoverable as damages, the purported harms resulting from Mr.
Benson’s alleged breaches of trust are not irreparable as a matter of law. Because
there is no irreparable harm, the trial court abused its discretion in granting
temporary relief.
C.
The trial court’s failure to consider less-intrusive remedies is fatal
to its grant of preliminary relief.
Even if Petitioner had satisfied the other prerequisites for temporary relief,
she still failed to demonstrate that a less intrusive injunction would be inadequate
to protect her interests pending trial. See Elliott , 396 S.W.3d at 228 (“[A] trial
court should not appoint a receiver if another remedy exists at law or in equity that
is adequate and complete.”). No evidence was presented on lesser remedies at the
hearing, and the trial court did not address that issue in its Addendum. This failure
alone requires reversal. See Benefield v. State, 266 S.W.3d 25, 32 (Tex. App. —
Houston [1st Dist.] 2008, no pet.) (“because remedies at law were not even
considered, they could not have been deemed ‘inadequate’ as required by” Texas
law).
Petitioner claims the trial court’s Second Amended Order (“Order”)
appointing receivers is “narrowly tailored” because it was a “limited temporary
appointment” supervised by the court. Appellee’s Br. 29. This is no answer, as
Mr. Benson’s objection is to the existence and scope of the temporary injunction
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and receivership, not the duration. Taking another person’s car for a joyride is still
theft, even if the car is returned. Rather than follow the mandate that “[a]n
injunction should be broad enough to prevent a repetition of the ‘evil’ sought to be
corrected, but not so broad as to enjoin a defendant from lawful activities,” Lagos,
378 S.W.3d at 650, the trial court suspended Mr. Benson as Trustee and then took
the even more drastic action of appointing two Receivers to manage the Trust in
his place.
Petitioner’s complaints could have been adequately addressed by a narrow
injunction restraining Mr. Benson’s actions in specific respects, rather than a
complete deprivation of his right to serve as Trustee and appointment of receivers.
Failure to consider that alternative was an abuse of discretion.
Petitioner argues that an injunction is inadequate, as it would be difficult for
a court to monitor the “quantity and quality of Tom’s communication with Renee.”
Appellee’s Br. 29. But this would only be true if the injunction attempted to
monitor Mr. Benson’s personal communications with Petitioner. An injunction
requiring Mr. Benson to disclose material facts and provide requested accountings
could be monitored with ease. It only becomes complicated if the court presumes
to decide whether Petitioner should have been invited to two Saints games or three,
or whether she should have received more one-on-one time at family holidays. If
narrowly tailored, as the law requires, an injunction would have been manageable.
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It is no answer to suggest that an injunction must “anticipate the nature and
extent of potential damage that Tom’s hostility toward the beneficiary might
cause.” Id . That is not the standard for preliminary relief. “Issuing a preliminary
injunction based only on a possibility of irreparable harm is inconsistent with our
characterization of injunctive relief as an extraordinary remedy that may only be
awarded upon a clear showing that the plaintiff is entitled to such relief.” Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 22 (2008) (internal citations omitted).
Petitioner had the burden to establish evidence of a “ probable, imminent,
and irreparable injury in the interim if the injunction is not granted.” Camp Mystic,
Inc. v. Eastland , 399 S.W.3d 266, 273 (Tex. App. — San Antonio 2012, no pet.)
(emphasis added). Her hypothetical concerns about what the Trustee might do in
the future were “not sufficient to establish any injury, let alone ‘irreparable’
injury,” Markel v. World Flight, Inc., 938 S.W.2d 74, 80 (Tex. App. — San Antonio
1996, no writ), and certainly cannot justify a complete derogation of Mr. Benson’s
right to exercise control over Trust property.
III.
The trial court’s orders are facially flawed and void.
A.
Lack of Notice.
Petitioner requested a receiver in her Original Petition. But the issue is not
whether Mr. Benson was on notice that Petitioner would be pursuing that relief at
some point during the litigation — the issue is whether Mr. Benson was given notice
that receivership was being sought at the February 4 temporary injunction hearing.
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Due process “mandate[s] that parties receive ‘adequate notice detailing the
reasons’ giving rise to the hearing so they might have the opportunity to adequately
prepare their side of the controversy.” Gonzales v. Tex. Emplo yment Com’n, 653
S.W.2d 308, 310 (Tex. App. — San Antonio 1983, writ refused n.r.e.).
Although the Original Petition contained multiple requests for relief, only
the “request for temporary injunction” was set for hearing. The notice of hearing
was accompanied by a copy of the TRO and application for temporary
injunction — both of which contained a complete list of the actions Petitioner
sought to enjoin and the facts supporting that request. There was no reference to a
receivership.
Petitioner ’s claim that Mr. Benson has not asserted harm strains credulity
and makes a mockery of due process. The harm is obvious. If Mr. Benson had
been notified that the temporary injunction hearing would also address the issue of
a receivership, he would have (a) briefed and argued against appointing receivers;
(b) put on evidence demonstrating that a less-intrusive remedy would be sufficient
to preserve the status quo, thereby sparing the Trust the inconvenience and expense
of appointing receivers; and (c) demonstrated that a receivership is not a
“reasonable and safe alternative”— as the trial court held — but the most drastic
remedy available and far more intrusive than the requested temporary injunction.
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As in Elliott v. Weatherman, the trial court abused its discretion by appointing a
receiver without notice and a hearing on that specific issue. 396 S.W.3d at 229.
B.
The trial court’s Second Amended Order is facially void.
Under Texas law, “a valid injunction must articulate the reasons why the
identified probable injury is an irreparable one for which applicant[] ha[s] no
adequate legal remedy.” Int’l Broth. of Elec. Workers Local Union 479 v. Becon
Const. Co., Inc., 104 S.W.3d 239, 244 (Tex. App. — Beaumont 2003, no pet.).
Thus, “the mere recital of ‘no adequate remedy at law’ and ‘irreparable harm’ in
the order lacks the specificity required by Rule 683.” Univ. Interscholastic League
v. Torres, 616 S.W.2d 355, 358 (Tex. Civ. App. — San Antonio 1981, no writ);
Tuma v. Kerr County, 336 S.W.3d 277, 280 (Tex. App. — San Antonio 2010, no
pet.). The trial court’s Order and Addendum fail this test.
Petitioner argues that “the court provided specific examples of the Trustee’s
hostile statements and actions, negative impacts on the trust assets . . . which were
a stark contrast with the Trustee’s history and character and, more importantly,
with the intent of the Trust’s settlor—Shirley Benson.” Appellee’s Br. 37.
Petitioner concludes that “the court supplied more than enough detail of dissipation
and devaluation of trust assets and continued damage to trust relationships and the
Trustee’s reputation and business relationships, all of which are by definition
irreparable injuries.” Id .
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But while Petitioner ’s argument—like the trial court’s Order — lists what she
considers to be “harms,” that is not enough. Those harms must be “irreparable.”
As discussed supra, Part II.B, an “irreparable harm” is one that cannot be remedied
by monetary damages. She fails, for example, to articulate why Mr. Benson’s
asserted “negative impact[] on the trust assets” cannot be compensated by damages
as provided by Property Code § 114.001. Because the trial court’s Order fails to
explain how the alleged injuries are irreparable, the Order should be reversed.
PRAYER
Appellant respectfully requests that this Court reverse the trial court’s Order
and grant all other relief to which he is entitled in law or in equity.
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Respectfully submitted,
BECK R EDDEN LLP
By: /s/ David J. Beck
David J. BeckState Bar No. [email protected] S. PostState Bar No. [email protected] FordState Bar No. [email protected]
Owen J. McGovernState Bar No. [email protected]
1221 McKinney, Suite 4500Houston, TX 77010(713) 951-3700(713) 951-3720 (Fax)
Attorneys for Appell ant,
Thomas M ilton Benson, Jr., as Trustee
of the Shi r ley L. Benson Testamentar y
Trust
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1884.1/565017 33
CERTIFICATE OF SERVICE
I hereby certify that on July 30, 2015, a true and correct copy of the aboveand foregoing Reply Brief of Appellant was forwarded to all counsel of record by
the Electronic Filing Service Provider as follows:
Bennett L. StahlCURL STAHL GEIS
700 North St. Mary’s Street, Suite 1800 San Antonio, TX 78205 [email protected]
Emily Harrison LiljenwallSCHOENBAUM, CURPHY & SCANLAN, P.C.
112 E. Pecan, Suite 3000San Antonio, TX 78205
Harriet O’Neill LAW OFFICE OF HARRIET O’NEILL, P.C.
919 Congress Avenue, Suite 1400Austin, TX 78701
Douglas AlexanderALEXANDER , DUBOSE, JEFFERSON & TOWNSEND LLP
515 Congress Ave., Suite 2350Austin, TX 78701
Attorneys for Appellee Renee Benson
/s/ David J. BeckDavid J. Beck
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1884.1/565017 34
CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Tex. R. App. P.9.4 because it contains 7,385 words, excluding the parts of the brief exempted byTex. R. App. P. 9.4(i)(2)(B).
2. This brief complies with the typeface requirements of Tex. R. App. P.9.4(e) because it has been prepared in a proportionally spaced typeface usingMicrosoft Word 2007 in 14 point Times New Roman font.
Dated: July 30, 2015.
/s/ David J. Beck
David J. BeckAttorney for Appellant
Thomas Milton Benson, Jr., as Trustee
of the Shirley L. Benson Testamentary
Trust
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No. 04-15-00087-CV
IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO
ESTATE OF SHIRLEY L. BENSON;
THOMAS MILTON BENSON
AS TRUSTEE OF THE
SHIRLEY L. BENSON TESTAMENTARY TRUST,Appellant ,
v.
R ENEE BENSON,Appellee .
Appeal from Probate Court No. 2, Dallas County, Texas,
Trial Court Cause 155,172 & 155172-A
APPENDIX TO
R EPLY BRIEF OF APPELLANT
TAB
I Judgment and Reasons for Denying Interdiction ofThomas Milton Benson, Jr. (Civil District Court for theParish of Orleans, State of Louisiana, No. 2015-655, Div.L, Section 6)
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Tab I
Judgment and Reasons for Denying Interdiction of Thomas Milton Benson, Jr.
(Civil District Court for the Parish of Orleans, State of Louisiana,
No. 2015-655, Div. L, Section 6)
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CIVIL DISTRICT COURT FOR THE PARISH OF ORLEANS
STATE
OF LOUISIANA
STATE OF LOUISIANA
No. 2015-655 Division
L
Section
6
THOMAS MILTON BENSON,
JR.
Filed:
Deputy
Clerk
JUDGMENT
This matter came for trial on Monday, June
1
2015. The trial lasted until Friday, June 12,
2015, with a two day recess intermittent. Petitioners, Renee Benson, Rita LeBlanc, and Ryan
LeBlanc, filed a Petition of Interdiction regarding their father/grandfather, Thomas Milton
Benson, Jr.
The
parties are represented as follows:
RANDALL SMITH AND
STEPHEN
GELE
Smith & Fawer, LLC
201 St. Charles A venue 3 702
New Orleans, Louisiana 70170
Attorneys
for
Petitioners, Renee Benson, Rita LeBlanc, and Ryan LeBlanc
nd
SANFORD L.
MICHELMAN
Michelman& Robinson, LLP
15760 Ventura Boulevard, 5•h Floor
Encino, California 91436
Attorney
for Petitioners, Renee Benson,
Rita
LeBlanc,
and Ryan
LeBlanc
nd
PHILLIP
WHITTMANN,
JAMES GULOTTA, JR., AND MATTHEWS. ALMON
Stone Pigman, LLC
546 Carondelet Street
New Orleans, Louisiana 70130
Attorneys for Defendant,
Thomas
Milton Benson, .
IT IS
ORDERED,
ADJUDGED, AND
DECREED
that there be judgment in favor of
defendant, Thomas Milton Benson, Jr. and against Petitioners, Renee Benson, Rita LeBlanc, and
Ryan LeBlanc, dismissing Petitioners' suit at their cost, with prejudice.
IT IS FURTHER
ORDERED,
ADJUDGED, AND
DECREED that Petitioners' prayer
that Renee Benson
be
appointed as curatrix of
Tom
Benson's property and person be and is
hereby DENIED.
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IT IS FURTHER
ORDERED,
ADJUDGED AND
DECREED
that Petitioners prayer
that Rita LeBlanc be appointed as under curatrix of Tom Benson s property and person be and is
hereby
DENIED
.
IT IS FURTHER
ORDERED,
ADJUDGED AND DECREED that all other relief
sought by Petitioners herein e and is hereby DENIED.
ORDER, READ AND SIGNED this ef 2015
New
Orleans Louisiana.
DIVISION L
2
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CIVIL
DISTRICT
COURT FOR THE PARISH OF ORLEANS
STATE
OF
LOUISIANA
STATE OF LOUISIANA
No.
2015-655
Division
L
Section
6
THOMAS MILTON
BENSON,
JR.
Filed:
--------------------
Deputy
Clerk
REASONS FOR JUDGMENT
Petitioners, Renee Benson, Rita LeBlanc, and Ryan LeBlanc, filed a petition herein on
January 22, 2015, seeking to have their father and grandfather, respectively, Thomas Milton
Benson,
Jr
. hereinafter Tom Benson), fully interdicted, alleging he has sustained an infirmity
that renders him unable to consistently make reasoned decisions regarding the care of his person
and his property, or to communicate those decisions, and whose interests cannot be protected by
less restrictive means. La. C.C. art. 389.
Petitioners alleged that Tom Benson, who is currently eighty-seven years old,
experienced a decline in his health over the last two years, particularly in 2014. Starting in May
2014, Tom Benson had several surgical procedures to repair a tom meniscus in his lefi knee. The
last one was performed on November 21, 2014. Tom Benson was not his usual self after these
procedures. The procedure in September 2014 was particularly debilitating, rendering him
immobile, relegating him to a wheelchair, and requiring twenty-four hour nursing assistance for
his care. Additionally, he was prescribed a number of medications for his various maladies,
including narcotic pain medication.
Besides his health issues, there were ever changing dynamics in his familial relationships.
The decisions he undertook between December 2, 2014 and January 7, 2015, coupled with his
health issues, precipitated the filing
of
this petition and the allegations made that defendant had
evidently lost his ability to make reasoned decisions and was subjected
to
undue influence by his
current spouse, Gayle Benson.
The court conducted the procedurally mandated summary proceedings, commencing on
June 1 2015 and ending on June 12 , 2015, pursuant to articles 4546 and 4547 of the Louisiana
Code
of
Civil Procedure. In keeping with La. C.C.P. art. 4545, the court appointed not one, but
three physicians to examine the defendant. Following the procedures outlined in the Louisiana
3
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Louisiana Civil Code article 390 allows a limited interdiction, which was alternatively pied by
the petitioners should the court deem full interdiction unwarranted.
The Civil Code makes it abundantly clear that [f]ull interdiction is a last resort and, as a
result, is warranted only when a person's interests cannot
e protected by less restrictive
means for example, his interests (1) are currently being protected by other legal arrangements,
including a procuration, mandate
or
trust.. .
La
C.C.
art.
389 Revision Comments - 2000(e).
The jurisprudence of the State of Louisiana has long held that interdiction is indeed a
harsh remedy, even likened to a civil death .
Doll v Doll
156 So.2d 275, 278 (La.App. 4 Cir.
1963). The burden
of
proof in interdiction cases is by clear and convincing evidence, a
substantial burden indeed. La. C.C.P. art. 4548. In order to have a person fully interdicted, the
party petitioning for the interdiction must prove, by clear and convincing evidence, that the
person to be interdicted is mentally incapable
of
administering his estate and that he is unable to
care for his person.
Interdiction
o
Lemmons
511 So.2d 57 (La.App. 3 Cir. 1987); See also
Interdiction
o
Cornwell v Cornwell
702 So.2d 938 (La.App. 3 Cir. 1997).
The court has carefully reviewed the evidence and finds that petitioners filed this
interdiction proceeding after Tom Benson made the drastic decision to alter his succession plans
for ownership of his professional sports teams and allocation of his estate upon his demise. The
petitioners deemed this to be illustrative of
his inability to make reasoned decisions regarding his
person and his property.
In his closing argument to the court, petitioners' counsel, Randall Smith, argued that the
defendant should e judged not on his best day, but on his worst day. The court found profundity
in this comment. December 19, 2014 was one
of
Tom Benson's worst days. He was about four
weeks into his recovery from his last knee surgery, taking a plethora ofmedications, obviously in
pain, and traveling about the Saints' headquarters with a portable I.V. in tow. Yet, nonetheless,
he realized the medications were messing him up . He asked Rita LeBlanc and Dennis Laushca
rational, logical questions about his business operations and succession plans for over an hour.
Unbeknownst to Rita LeBlanc, by that date, Tom Benson had begun exploring the prerequisites
for making her his sole successor in the ownership of the Saints and Pelicans, although he would
ultimately change his mind by December 27, 2014.
Takiyah Daniels, who the court found to be perhaps the most credible fact witness who
appeared in this case, testified Tom Benson agonized over distancing himself from his family
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members, cried about it, read the December 27, 2014 letter three times, and then decided to place
his signature on the document. She testified that no one stood over him while he signed it. t was
his decision.
Louisiana courts have held that just because a person has memory lapses does not mean
the court should impose the harsh remedy of
interdiction.
Interdiction
o
Lemmons 5
So.2d 57
(La.App. 3 Cir. 1987);
Interdiction
o
Salzer
482 So.2d 166 (La.App. 4 Cir. 1986). Additionally,
in late 2014 into early 2015, Tom Benson was on a regimen of medication that required
adjustment. By the time the court undertook the Watermeier hearing in April 2015, Tom
Benson had clarity
of
thought and volition, despite some memory lapses, that led the court to
conclude that the foggy state of December 2014 had cleared. Interdiction o Clement 46 So.3d
804 (La.App. 2 Cir. 2010). He definitively affirmed the actions he took in December and
January, unequivocally. He actually apologized to the court for a somewhat boisterous outburst
stating his feelings. The court sat across the desk from the defendant, looked into his eyes,
listened carefully to his responses, and concluded the capacity to make reasoned decisions was
present. The evidence presented at the hearing corroborated this initial impression.
Additionally, at the hearing, Ors. Thompson and Sakauye opined that as an eighty-seven
year old octogenarian, Tom Benson has sustained a mild cognitive impairment that has impacted
his short term memory, but does not rob him of his own volition and ability to make reasoned
decisions. They also opined he was not vulnerable to undue influence.
Conversely, Dr. Ted Bloch opined that Tom Benson's impairment was moderate to
severe, thereby warranting full interdiction.
The court has carefully considered all the evidence adduced at the hearing, all the
pleadings filed in these proceedings, the testimony
of
the witnesses, and the arguments
of
counsel, and finds the defendant, Thomas Milton Benson, Jr., is able to make reasoned decisions
as to his person and his property and therefore, this court WILL NOT order an interdiction of any
kind in these proceedings.
The petitioners' petition is DISMISSED at their cost, with prejudice.
ORDER, READ, AND SIGNED, this / of
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