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, JR., AS TRUSTEE OF THE

SHIRLEY L. BENSON TESTAMENTARY TRUST, Appellant

v.

RENEE BENSON, Appellee

On Interlocutory Appeal from Probate Court No. 2, Bexar County, Texas

Cause Nos. 155,172 and 155,172-A

BRIEF OF APPELLEE Bennett L. Stahl State Bar No. 19006500 blstahl@csg-law.com CURL STAHL GEIS, P.C. One Riverwalk Place 700 North St. Marys Street Suite 1800 San Antonio, Texas 78205 Telephone: (210) 226-2182 Telecopier: (210) 226-1691

Harriet ONeill State Bar No. 00000027 honeill@harrietoneilllaw.com LAW OFFICE OF HARRIET ONEILL, P.C. 919 Congress Ave., Suite 1400 Austin, Texas 78701 Telephone: (512) 944-2222 Telecopier: (512) 476-6441 Emily Harrison Liljenwall State Bar No. 12352250 eliljenwall@scs-law.com SCHOENBAUM, CURPHY & SCANLAN, P.C. 112 E. Pecan, Suite 3000 San Antonio, Texas 78205 Telephone: (210) 224-4491 Telecopier: (210) 224-7983

Douglas W. Alexander State Bar No. 00992350 dalexander@adjtlaw.com Amy Warr State Bar No. 00795708 awarr@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303

ATTORNEYS FOR APPELLEE ORAL ARGUMENT CONDITIONALLY REQUESTED

ACCEPTED04-15-00087-CV

FOURTH COURT OF APPEALSSAN ANTONIO, TEXAS

7/10/2015 3:32:15 PMKEITH HOTTLE

CLERK

FILED IN4th COURT OF APPEALS SAN ANTONIO, TEXAS07/10/2015 3:32:15 PM KEITH E. HOTTLE Clerk

i

TABLE OF CONTENTS

Table of Contents ....................................................................................................... i

Index of Authorities ................................................................................................ iii

Statement of the Case ...............................................................................................iv

Issue Presented .........................................................................................................iv

Statement Regarding Oral Argument ....................................................................... 1

Statement of Facts ..................................................................................................... 1

Summary of the Argument ........................................................................................ 9

Standard of Review ................................................................................................. 11

Argument................................................................................................................. 11

I. The trial court did not abuse its discretion in suspending the Trustee pending trial and appointing temporary receivers ........................................ 11

A. A trustee is a fiduciary whose duties are prescribed by the instrument that created the trust, statutes, and common law ............. 11

B. The beneficiary demonstrated both actual and threatened breaches of trust under 114.008(a) of the Property Code ................ 13

C. Tom committed an actual, or at least a threatened, breach of Shirleys Trust by severing all contact with Renee ............................ 14

D. Tom breached, and threatened to breach, the Trust through his actions directed at Lone Star Capital Bank ........................................ 20

E. Tom committed an actual, and a threatened, breach of trust by hiding the bookkeeper ........................................................................ 25

F. Though actual harm to the Trust was shown, no showing of harm or less intrusive methods is required .................................................. 27

G. The Trustee had ample notice that a receivership had been requested ............................................................................................. 30

ii

II. The trial courts order complies with Texas Rule of Civil Procedure 683 ....... 32

A. The appointment of receivers is not an injunction, and thus not within Rule 683s purview ................................................................. 33

B. The temporary injunction complied with Rule 683, and thus was not an abuse of discretion ................................................................... 34

III. Toms due-process challenges to the Amended Order fail .......................... 40 Prayer ...................................................................................................................... 44

Certificate of Service .............................................................................................. 46

Certificate of Compliance ....................................................................................... 47

iii

INDEX OF AUTHORITIES

Cases

Abetter Trucking Co. v. Arizpe, 113 S.W.3d 503 (Tex. App.Houston [1ST Dist.] 2003, no pet.) ............... 12, 23

Akin v. Dahl, 661 S.W.2d 911 (Tex. 1983) .................................................................. 18, 19, 20

Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387 (Tex. App.Austin 2000, no pet.) ............................................ 38

Arkoma Basin Exploration Co. v. FMF Associates 1990A Ltd. 249 S.W.3d 380 (Tex. 2008) .............................................................................. 39

In re Baby Girl S., 407 S.W.3d 904 (Tex. App.Dallas 2013, pet. denied), cert. denied sub nom., Cole v. Generations Adoptions, 135 S. Ct. 1896 (2015) ........................................................................................ 42

Barrientos v. Nava, 94 S.W.3d 270 (Tex. App.Houston [14th Dist.] 2002, no pet.) ............... 18, 19

Benefield v. State, 266 S.W.3d 25 (Tex. App.Houston [1st Dist.] 2008, no pet.) .................. 11, 28

Ex parte Blanchard, 736 S.W.2d 642 (Tex. 1987) .............................................................................. 42

In re C.F.M., 360 S.W.3d 654 (Tex. App.Dallas 2012, no pet.) .................................... 42, 43

C/S Solutions, Inc. v. Energy Maint. Servs. Group LLC, 274 S.W.3d 299 (Tex. App.Houston [1st Dist.] 2008, no pet.) ...................... 44

Chapa v. Chapa, No. 04-12-00519-CV, 2012 WL 6728242 (Tex. App.San Antonio Dec. 28, 2012, no pet.) (mem. op.) ....................................................... 28

Conseco Fin. Servicing v. Klein Indep. Sch. Dist., 78 S.W.3d 666 (Tex. App.Houston [14th Dist.] 2002, no pet.) ..................... 42

iv

El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740 (Tex. App.Dallas 2011, no pet.) .......................................... 38

Elliott v. Weatherman, 296 S.W.3d 224 (Tex. App.Austin 2013) ................................................. 28, 31

First Natl Bank of Beaumont v. Howard, 229 S.W.2d 781 (Tex. 1950) ............................................................ 14, 15, 17, 19

Fortenberry v. Cavanaugh, No. 03-04-00816-CV, 2005 WL 1412103 (Tex. App.Austin June 16, 2005, no pet.) (mem. op.) ..................................................................... 28

Gen. Homes, Inc. v. Wingate Civic Assn, 616 S.W.2d 351 (Tex. Civ. App.Houston [14th Dist.] 1981, no writ) ..................................................................................................................... 39

In re Hereweareagain, Inc., 383 S.W.3d 703 (Tex. App.Houston [14th Dist.] 2012, no pet.) ................... 42

Huie v. DeShazo, 922 S.W.2d 920 (Tex. 1996) ........................................................................ 12, 25

Hunt v. State ex rel. K.C., No. 03-11-00352-CV, 2012 WL 3793283 (Tex. App.Austin Aug. 31, 2012, no pet.) (mem. op.) ..................................................................... 42

IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191 (Tex. App.Fort Worth 2005, no pet.) ................................... 38

Intl Brotherhood of Electrical Workers Local Union 479 v. Becon Construction Co., Inc., 104 S.W.3d 239 (Tex. App.Beaumont 2003, no pet.) .................................... 40

Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509 (Tex. 1942) .............................................................................. 12

Kotz v. Imperial Capital Bank, 319 S.W.3d 54 (Tex. App.San Antonio 2010, no pet.) .................................. 39

Monsanto Co. v. Davis, 25 S.W.3d 773 (Tex. App.Waco 2000, pet. dismd w.o.j.) ............................ 39

v

Montgomery v. Kennedy, 669 S.W.2d 309 (Tex. 1984) .............................................................................. 25

Negrini v. Beale, 822 S.W.2d 822 (Tex. App.Houston [14th Dist.] 1992, no pet.) ................... 32

Onoray Davis Trucking Co., Inc. v. Lewis, 635 S.W.2d 622 (Tex. App.Houston [14th Dist.] 1982, writ dismd) ................................................................................................................ 34

Orix Capital Mkts., LLC v. La Villita Motor Inns, J.V., 329 S.W.3d 30 (Tex. App.San Antonio 2010, pet denied) ............................. 11

Rio Grand Exploration, L.L.C. v. Anju Prod., L.L.C., No. 04-08-00495-CV, 2009 WL 618616 (Tex. App.San Antonio Mar. 11, 2009, no pet.) (mem. op.) ..................................................................... 39

Sassen v. Tanglegrove Townhouse Condo Assn, 877 S.W.2d 489 (Tex. App.Texarkana 1994, writ denied) ............................ 17

Tex. Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240 (Tex. 2002)................................................................................. 13

Tex. Health & Human Servs. Commn v. Advocates for Patient Access, Inc., 399 S.W.3d 615 (Tex. App.Austin 2013, no pet.) .......................................... 43

Tex. Workers Comp. Commn v. Patient Advocates of Tex., 136 S.W.3d 643 (Tex. 2004) .............................................................................. 41

Thota v. Young, 366 S.W.3d 678 (Tex. 2012) .............................................................................. 43

Tuma v. Kerr County, 336 S.W.3d 277 (Tex. App.San Antonio 2010, no pet.) ................................ 40

Unifund CCR Partners v. Villa, 299 S.W.3d 92 (Tex. 2009)................................................................................. 11

Univ. Interscholastic League v. Torres, 616 S.W.2d 355 (Tex. Civ. App.San Antonio 1981, no writ) .................. 38, 40

vi

Statutes and Rules

TEX. CIV. PRAC. & REM. CODE 64.001(a) .................................................. 28, 32, 33

TEX. PROP. CODE 113.051 ...................................................................................... 11

TEX. PROP. CODE 114.001(b) ................................................................................. 13

TEX. PROP. CODE 114.008 .................................................................... 13, 27, 28, 33

TEX. PROP. CODE 117.007 .......................................................................... 20, 23, 25

TEX. R. APP. P. 29.5(a) ............................................................................................. 43

TEX. R. APP. P. 44.1(a) ............................................................................................ 43

TEX. R. CIV. P. 21 ..................................................................................................... 41

TEX. R. CIV. P. 683 ................................................................................................... 33

vii

STATEMENT OF THE CASE

Nature of the Case: Parties in the Trial Court:

Action to remove trustee and request for temporary injunction and appointment of temporary receiver under 113.082 and 114.008 of the Texas Property Code Petitioner: Renee Benson Respondent: Thomas Milton Benson, Jr., in his capacity as Trustee of the Shirley L. Benson Testamentary Trust

Trial Court:

Hon. Tom Rickhoff, Probate Court No. 2, Bexar County

Trial Court Disposition:

Granted temporary relief, including: temporary injunction, temporary suspension of trustee, and appointment of temporary receivers to preserve and

manage trust during litigation

ISSUE PRESENTED

With respect to the administration of the testamentary trust at issue, did the

probate court act within the bounds of its authorized discretion in granting temporary

injunctive relief, suspending the trustee, and appointing temporary co-receivers with

restrictions?

STATEMENT REGARDING ORAL ARGUMENT

Appellee does not believe that oral argument is necessary, as this appeal

involves a straightforward application of established law regarding receiverships and

injunctions to largely undisputed facts. But, if the Court believes that oral argument

would be helpful, Appellees counsel stands ready to appear.

STATEMENT OF FACTS

Renee Benson is the daughter of Tom Benson and his first wife, Shirley L.

Benson, who died in 1980. 3 RR 24. In her Last Will and Testament, Shirley created

a testamentary trust (Shirleys Trust). 3B RR Plfs Ex. 1, Will VI. Tom is the

income beneficiary of Shirleys Trust. Id. VI.A. After Toms death, their three

children (Robert, Renee, and Jeanne Marie) were to divide the residual trust assets.

Id. VI.D. While Tom was living, the children could also receive principal

distributions for their health, support, and maintenance. Id. VI.C. Shirley appointed

Tom as the Trustee. Id. IX. In the Second Codicil to her Will, Shirley named Renee

as the Successor Trustee. Id., 2nd Codicil, VIII.

The Bensons were a very close and loving family. 3 RR 63-64, 154. They

spent summers at their ranch near Blanco, Texas; Tom came on weekends from San

Antonio. 3 RR 156. When Renee was eight years old, Tom taught her how to drive

in an old jeep. 3 RR 157. The family also took frequent vacations together. 3 RR

2

156. After Shirleys death, Renees two siblings died, leaving Renee as the only

surviving child. 3 RR 151, 226.

The Bensons closeness extended to business. Tom began his entrepreneurial

career owning and operating car dealerships. 3 RR 39-40. Then he moved into

banking. 3 RR 40. Now, most famously, he owns the National Football Leagues

New Orleans Saints, the National Basketball Leagues New Orleans Pelicans, and

other business interests. See 3 RR 23. Renee and her children, Rita LeBlanc (Rita)

and Ryan LeBlanc (Ryan), joined the family businesses as well. 2 RR 22, 3 RR

64, 81, 89. Tom wanted Renee, Rita, and Ryan to learn all they could about the

businesses. 3 RR 81, 89.

In 1996, Renee formed her own company, Renson Enterprises, Inc.

(Renson), that until the end of 2014 provided back-office support (payroll, 401k,

health and casualty insurance, human resources, information technology, relations

with the manufacturers) to all of the Benson car dealerships. 3 RR 64-66, 166-67.

Ryan was working with the dealerships in San Antonio. 3 RR 64. Rita was Vice-

Chairman (second-in-command) of the Saints and Pelicans, and was being groomed

to eventually succeed Tom as owner representative. 2 RR 22. Additionally, Renee,

Rita, and Ryan were members of the board of directors of numerous Benson

companies, 3B RR Plfs Ex. 3, including Lone Star Capital Bank (the Bank) in

San Antonio. 3B RR Plfs Ex. 7.

3

Shirleys Trust1 owns over 97% of the Bank. 3 RR 49. It also owns 49-50%

of Bensco, Inc. (Bensco), 3 RR 270a holding company that owns all of the

Benson familys five car dealerships in New Orleans and San Antonio. 3 RR 160-

61, 167. Shirleys Trust also owns cash as well as real property associated with

Uptown Blanco, Ltd., a long-term community revitalization initiative in the town of

Blanco, Texaswhich is near the Benson family ranch. 3 RR 53, 161, 275.

Tom remarried twice after Shirleys death. 3 RR 167-69. His third and current

wife is Gayle Benson, who he married in 2004. 3 RR 169, 227. At the time of the

hearing, Tom was 87 years old. 3 RR 176.

In late 2014, Toms behavior toward Renee, Rita, and Ryan abruptly and

inexplicably changed. Shortly after Thanksgiving, Tom urgently asked Renee (living

in San Antonio) to come see him in New Orleans. 3 RR 188-89. She went to his

house on December 2, 2014, and found him out of it. 3 RR 192. She knew he was

taking lots of medications, and he had told her he did not know what they were. 3

RR 182. He did not express any anger toward Renee or his grandchildren. 3 RR 195.

1 After Shirleys Will was admitted to probate in 1980, Tom in his capacity as Executor should have formally transferred the probate assets to himself in his capacity as Trustee of Shirleys Trust. It appears he failed to do that, and Tom may actually be holding title as Executor rather than as Trustee. For this reason, the trial courts order appointing the Co-Receivers expressly empowers the Co-Receivers to take custody of all assets of both Shirleys Trust and Shirleys Estate. Accordingly, any reference to Shirleys Trust in this brief should be regarded as a reference to Shirleys Estate as well.

4

Since then, despite her efforts, she has not been allowed to visit her father in person

or speak to him.

The Bensons typically spent the Christmas holidays together as a family in

New Orleans. 3 RR 196-97. In 2014 Tom and Gayle, for the first time, did not invite

Renee and her family to spend Christmas with them. 3 RR 198. Rita lives in New

Orleans, and Renee, Ryan, and Ryans family came to New Orleans to spend

Christmas with her. Having been told she was not to go onto the facilities, Renee did

not attend the Saints game. Id. Rita and Ryan did attend but, contrary to family

tradition, Ryans children (Toms great-grandchildren) were not invited to Toms

suiteeven though other children were. Id.

A few days after Christmas, Renee received in an email attachment a letter

signed by her father. It read:

Dear Renee, Rita and Ryan:

During the over 80 years of my life, I have built a rather large estate which was intended to mainly be for you all as my family.

Suddenly after I remarried you all became offensive and did not act in an appropriate manner and even had arguments among yourselves which created a very unpleasant family situation which I will not stand for. It made me very unhappy and uncomfortable. This situation cannot continue at my age.

Because of the facts set out above and the heart break you have caused me I want no further contact with any of you and you will not be allowed to enter the Saints facilities or games, the Basketball facilities or Pelicans games, the Benson Towers, the T.V. facilities or the

5

automotive facilities in New Orleans and will have no right to give directions, orders or hire or fire any of the personnel.

Sincerely yours, your father and grandfather,

Tom Benson

3B RR Plfs Ex. 20. Renee immediately attempted to contact Tom by phone and in

writing, but to no avail. In early January she went to New Orleans and stayed a week,

repeatedly trying to make arrangements to see her father through Dennis Lauscha,

President of the Saints and Pelicans, 3 RR 8, but was told her father refused. 3 RR

206-07. Just a few weeks later, Tom took unprecedented actions against his family,

one of which was to attempt to fire Renee, Rita, and Ryan as directors of the Bank.

3 RR 81.

At the same time, Tom was also distancing himself from two of his most

trusted business associates. Tom Roddy (Roddy) and Tom have known each other

and worked together for 43 years. 3 RR 52. Roddy is a longtime banker in San

Antonio and served two terms as a director for the San Antonio branch of the Dallas

Federal Reserve Bank. 3 RR 61. He has assisted Tom with multiple business

ventures over the years and is on the board of directors of virtually every Benson

company. 3 RR 55-56, 61, 3B RR Plfs Ex. 3. He has been chairman of the Banks

Board of Directors since its acquisition by Shirleys Trust. 3 RR 49-50.

Bill McCandless (McCandless) is also a longtime San Antonio banker who

has known Tom for 37 years. 3 RR 52. McCandless has been on the Board of

6

Directors of the Bank since its acquisition, 3 RR 81, and also served as its President,

3 RR 52. Nonetheless, in early January 2015, Tom as Trustee attempted to fire

Roddy and McCandlessin addition to Renee, Rita, and Ryanfrom the Banks

Board. 3 RR 80-81. Roddy testified that Tom had never communicated any anger or

dissatisfaction to him. 3 RR 63.

Toms attempted removal of the Banks directors followed closely on the

heels of another action directed at the Bank: Toms abrupt withdrawal of

approximately $25 million, representing 12% of the Banks total deposits of $203

million. 3 RR 78, 80; 4 RR 71; 3B RR Plfs Ex. 4. Of the $25 million, $4.7 million

was cash owned by Shirleys Trust. 3 RR 119. Although Danny Buck, the Banks

current CEO and President, had received a warning from Stanley Rosenberg (the

Trusts limited-purpose co-trustee) just before Christmas that Tom was considering

withdrawing money, 4 RR 67, Buck still had to scramble to cover the withdrawal.

The Bank had to sell some securities and, in the interim before the sale cleared,

obtain a short-term loan of $3 million. 4 RR 86. In Bucks 34 years of banking, it

was unprecedented that the owner of a bank would place it in such an urgent

situation. 4 RR 62, 86. Tom himself never gave Buck any warning of the impending

withdrawal. 4 RR 91-92.

Toms disconcerting use of his power as Trustee went beyond specific trust

assets such as the Bank. In early December 2014, Tom instructed Mary Polensky

7

(Mary), the bookkeeper for Bensco, Shirleys Trust, and other Benson companies,

see 3 RR 123, 199-200, 267, 4 RR 7, 13, 23, to relocate her office in secret and tell

no one where she was going. 4 RR 52, 59. Until then, Marys office was at Renson,

where Renee and Roddy worked. 3 RR 130, 268. Mary prepared a weekly report of

account activity for Renee and Roddy, and she responded to their requests for

information on related matters. 3 RR 124-25, 269.

In early December 2014, Roddy noticed that Mary was absent from the

Renson holiday party and thought that quite odd. 3 RR 129. When Roddy came to

work the following Monday, Marys office was empty, and her computer and files

were gone. 3 RR 130. He and Renee attempted to learn her whereabouts and left a

message on her cell phone, 4 RR 53-54, but, obeying Toms directive, Mary never

returned the call. 4 RR 49, 55, 59. They did not see her again for almost two

monthswhen she testified on the second day of the evidentiary hearing regarding

temporary relief. See 4 RR 7-60. In fact, when Renee testified on the first day of the

hearing, she stated that she still did not know where Mary was. 3 RR 268. As they

learned the next day from Marys testimony, she had moved her office from Renson

to Toms San Antonio condominium. 4 RR 12-13.

All of Toms actions, culminating in putting the Bank at risk by the $25

million withdrawal and attempting to fire half of the Board, plus his refusal to

8

communicate with Renee in any way, ultimately placed Renee in the unfortunate

position of bringing an action to remove him as Trustee of Shirleys Trust.

After a two-day evidentiary hearing, the Bexar County Probate Court No. 2

granted limited temporary relief. See CR 76 (Order Suspending Trustee and

Appointing Temporary Co-Receivers with Restrictions [2/9/2015]); id. at 98

(Amended Order [2/18/2015]); 1 Supp. CR 4 (Second Amended Order [3/2/2015]);

id. at 13 (Addendum to Order).

Tom travelled from New Orleans to San Antonio and was in San Antonio

during the hearing, see 4 RR 9, 132-33, but chose not to testify or even attend.

9

SUMMARY OF THE ARGUMENT

Toms appeal rests principally on the flawed premise that trustees enjoy

virtually unfettered discretion in carrying out their duties and none of Toms actions

amounted to a breach of trust under the wide latitude trustees are afforded. While it

is true that a trustees discretion is considerable, it cannot be arbitrary, unreasonable,

capricious or motivated by hostility such that the trustees fiduciary obligation to the

beneficiary is or potentially will be affected. The issue presented is whether the trial

court had before it any evidence that Toms statements and actions had the potential

to affect his fiduciary obligation to the beneficiary of Shirleys Trust. It surely did.

A few days after Christmas, Tom suddenly severed all communication with

Renee, and her children. In light of the previously close relationship they had

enjoyed, this precipitate action alone would call into question his fiduciary capacity.

But Tom did not stop there. He abruptly, with no explanation and for no apparent

reason,

removed substantial funds (12% of deposits) from a bank owned largely by

the Trust and attempted to remove half of its Board of Directors (including

the beneficiary and her children), impair[ing] the banks [sic] function and

negatively impact[ing] the trust, 1 Supp. CR 13-14;

instructed the bookkeeper who was the custodian of key information about

Trust assets to abscond with the records and not communicate with the

10

beneficiary, thus insuring that the beneficiaries could not be informed about

the trust in the future,1 Supp. CR 14;

terminated monthly maintenance-and-support distributions that he had been

making to the beneficiary for decades;

failed to pay taxes and insurance for trust assets; and

collapsed the beneficiarys business that supervised and managed the

Trusts car-dealership assets.

1 Supp. CR 14-15. Though afforded three intervening days between hearings to

reverse his decisions or explain his actions, Tom chose to continue his course with

no explanation. Id. Not only did Toms actions negatively impact Shirleys Trust,

they demonstrated ill-will or hostility toward the beneficiary that posed an imminent

danger to performance of his fiduciary obligations as Trustee.

Applying established law to these largely undisputed facts demonstrates that

the trial court acted well within its discretion to preserve the assets of Shirleys Trust

pending final trial.

11

STANDARD OF REVIEW

The trial courts appointment of a receiver and grant of a temporary injunction

are reviewed for abuse of discretion. Benefield v. State, 266 S.W.3d 25, 31 (Tex.

App.Houston [1st Dist.] 2008, no pet.). Generally, a trial court abuses its

discretion when it acts without reference to guiding rules or principles of law or

misapplies the law to the established facts. Orix Capital Mkts., LLC v. La Villita

Motor Inns, J.V., 329 S.W.3d 30, 44 (Tex. App.San Antonio 2010, pet denied).

The trial court does not abuse its discretion if it bases its decision on conflicting

evidence and some evidence supports its decision. Unifund CCR Partners v. Villa,

299 S.W.3d 92, 97 (Tex. 2009).

ARGUMENT

I. The trial court did not abuse its discretion in suspending the Trustee pending trial and appointing temporary receivers.

Before examining Toms specific complaints, it is important to first consider

the basic legal framework for deciding a trust case.

A. A trustee is a fiduciary whose duties are prescribed by the instrument that created the trust, statutes, and common law.

A trustees duties are defined by the instrument that created the trust and by

the Texas Trust Code and, when consistent with those, the common law. TEX. PROP.

CODE 113.051. The instrument that created the Trustthe Last Will and Testament

of Shirley L. Bensonexplicitly incorporates the Texas Trust Act and any

amendments thereto, and imposes no additional or contrary duties relevant to this

12

proceeding. See 3B RR Plfs Ex. 1, VII.F. Therefore, the Trust Code and the

common law regarding trustees and fiduciary duties govern this case.

A trustee has a fiduciary duty towards a beneficiary. Huie v. DeShazo, 922

S.W.2d 920, 923 (Tex. 1996). The Texas Supreme Court has defined fiduciary

very broadly:

It is impossible to give a definition of the term that is comprehensive enough to cover all cases. Generally speaking, it applies to any person who occupies a position of peculiar confidence towards another. It refers to integrity and fidelity. It contemplates fair dealing and good faith, rather than legal obligation, as the basis of the transaction. The term includes those informal relations which exist whenever one party trusts and relies upon another, as well as technical fiduciary relations.

Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509, 512-13 (Tex. 1942).

In particular, trustees owe beneficiaries duties of competence and loyalty, and a

fiduciary duty of full disclosure of all material facts known to them that might affect

[the beneficiaries] rights. Huie, 922 S.W.2d at 923 (quoting Montgomery v.

Kennedy, 669 S.W.2d 309, 313 (Tex. 1984)). One who occupies a fiduciary

relationship to another must measure his conduct by high equitable standards, and

not by the standards required in dealings between ordinary parties. Abetter

Trucking Co. v. Arizpe, 113 S.W.3d 503, 508 (Tex. App.Houston [1st Dist.] 2003,

no pet.). A fiduciary duty encompasses at the very minimum a duty of good faith

and fair dealing, and it requires a party to place the interest of the other party before

his own. Id.

13

B. The beneficiary demonstrated both actual and threatened breaches of trust under 114.008(a) of the Property Code.

The Trustees principal argument is that he committed no actual breach of

trust. Trustee Br. at 9-10, 21. But this ignores both the trial courts findings and

114.008(a)s plain language. According to the trial court, [i]t appears the

respondent trustees defense is that his actions do not constitute a trust breach. The

court disagrees. 1 Supp. CR 16. And the statute hinges its remedies on a breach of

trust that has occurred or might occur, for either of which the court may:

enjoin the trustee from committing a breach of trust;

suspend the trustee; or

appoint a receiver to take possession of the trust property and

administer the trust.

TEX. PROP. CODE 114.008(a)(2), (5), (6).

A trustees breach of statutory or common-law fiduciary duty constitutes a

breach of trust. See TEX. PROP. CODE 114.001(b) (circumscribing trustees personal

liability to breach of statutory duties or . . . any other breach of trust); see also Tex.

Commerce Bank, N.A. v. Grizzle, 96 S.W.3d 240, 249 (Tex. 2002) (recognizing that

the Trust Code imposes certain obligations on a trusteeincluding all duties

imposed by the common law . . . .).

14

C. Tom committed an actual, or at least a threatened, breach of Shirleys Trust by severing all contact with Renee.

By unilaterally cutting off all communication with the beneficiary, Shirleys

and Toms sole surviving child Renee, Tom breached Shirleys Trust by disabling

himself from performing his duties as Trustee under the following provision of the

Trust:

During the lifetime of my said husband, 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.

Trust VI.C. A Trustee cannot properly carry out his fiduciary duty to a beneficiary

when he has forbidden the beneficiary from even contacting him.

1. A trustee does not have unlimited discretionhe must act with the state of mind the settlor contemplated he should act.

The provision of Shirleys Trust quoted above vests discretion in Tom, as

Trustee, to make distributions to his and Shirleys sole surviving child, Renee, for

health, maintenance and support. Despite that broad grant of discretion, the Texas

Supreme Court has made clear that a trustees discretion is not unlimited. See First

Natl Bank of Beaumont v. Howard, 229 S.W.2d 781 (Tex. 1950). In Howard, the

Court considered a will creating a spendthrift trust that vested in the trustee sole

and uncontrolled discretion to make distributions to the beneficiaries out of the

corpus of the estate, and that further provided the decision of the Trustee shall be

final and conclusive. Id. at 783.

15

Notwithstanding this broad grant, the Court held there are limits to a trustees

discretion, and that the settlors state of mindin our case, Shirleys state of mind

ultimately controls:

[A]lthough the trustees discretion is declared to be final and conclusive, the courts will interfere if it acts outside the bounds of a reasonable judgment. In other words, the terms final and conclusive do not vest an unlimited discretion in the trustee. The test to be applied is: When it makes payments to the beneficiaries out of the corpus of the estate is the trustee acting in that state of mind in which the settlor contemplated that it should act?

Id. The Court identified several factors to be considered in determining the settlors

state of mind:

Since the settlors intention as to payments from the corpus of the trust estate is not made clear by the language used, we must determine it by a consideration of [1] the value of the estate, [2] the previous relations between [the settlor] and the beneficiaries, and [3] all the circumstances in regard both to the estate and the parties existing when the will was made and when the settlor died.

Id.

2. By severing all contact with Renee, Tom failed to act as the settlor, Shirley, contemplated he should, and thereby breached or threatened to breach Shirleys Trust.

Examining the Howard factors here, it is undisputed, first, that the value of

the estate at issue is substantial. Second, the unrefuted testimony shows that the

settlor, Shirley, enjoyed a close, loving relationship with her three children,

including her sole surviving child, Renee, who she named as the Successor Trustee

of her Testamentary Trust. 3 RR 153; 3B RR Plfs Ex. 1, 2nd Codicil, VIII. Finally,

16

it is undisputed that at the time Shirley made her Will, Tom was already financially

secure and well on his way to becoming even more securehe is currently included

on the Forbes list of 400 wealthiest Americans, with a 2014 net worth of $1.6

billion.2

Considering these factors, the most reasonable conclusion is that Shirley

intended that, as Trustee, Tom would lovingly evaluate the health, maintenance and

support needs of his and Shirleys children, and, considering that Tom was already

financially secure, make appropriately generous provision for their needs. The

evidence shows that for years Tom acted accordingly. The undisputed evidence

shows that for twenty yearsfrom 1994 until the end of 2014Tom made

distributions for maintenance and support to Renee from Shirleys Trust in the

amount of $10,000 per month. 3 RR 164.

But Tom abruptly cut off these monthly distributions at the beginning of 2015.

The last time Renee received a $10,000 check from the Trust was in December 2014.

3 RR 207-08. That check was dated December 1, 2014. See 3B RR PX 19. Renee

did not receive a distribution check in either January or February 2015. 3 RR 207-

08.

2 See http://www.forbes.com/profile/tom-benson/?list=forbes-400 (last visited 7/10/2015).

17

Toms cessation of these distributions was arbitrary and capricious. He did

not tell Renee that he was planning to stop the distributions, nor ever explain to her

why he did. 3 RR 208. In two days of testimony, no witness provided any

explanation for the cutoff of Renees maintenance and support. The Trustee himself

neither testified nor attended the hearing, even though he was in San Antonio at the

time. See 4 RR 9, 132-33. Even when a fiduciary has discretion in carrying out his

duties, he still must act reasonably and in good faith. Howard, 229 S.W.2d at 783;

Sassen v. Tanglegrove Townhouse Condo Assn, 877 S.W.2d 489, 492 (Tex. App.

Texarkana 1994, writ denied). Arbitrary or capricious conduct is, by definition,

neither reasonable nor in good faith. Id.

The abrupt cutoff of Renees monthly distributions can only be explained by

Toms hostile state of mind in his likewise abrupt decision to sever all contact with

Renee and his grandchildren, Rita and Ryan. In a December 27, 2014, letter

addressed to them, Tom declared: I want no further contact with any of you and

you will not be allowed to enter the Saints facilities or games, the Basketball

facilities or Pelicans games, the Benson Towers, the T.V. facilities or the automotive

facilities in New Orleans . . . . 3B RR Ex. 20.

Of course, no family is forever guaranteed a close, loving relationship.

Generally, a father is perfectly free to sever all contact with children, grandchildren,

or whatever family member he chooses. But not when he has been bestowed with

18

fiduciary obligations. Shirley made Tom the Trustee of a substantial estate of which

Renee is a current beneficiary and, when Tom passes away, will pass largely to

Renee and her children. 3 RR 159. Simply put, if a trustee unilaterally cuts off all

communication with a beneficiary, the trustee cannot properly evaluate whether that

beneficiary has needs for health, maintenance and support, and, if so, the amount of

distributions appropriate to meet those needs.

The fact that Tom was purportedly upset with Renee and her children in no

way diminishes his fiduciary obligations as Trustee. In his December 27, 2014,

letter, Tom states generally that Renee, Rita, and Ryan became offensive and did

not act in an appropriate manner after [the Trustee] remarried. 3B RR Ex. 20.

The only specific conduct he complains of is that Renee, Rita, and Ryan had

arguments among [them] selvesthey had supposedly created an unpleasant

family situation after [he] remarried. Id. But that is a personal grievance. Personal

hurt cannot justify a trustees cutoff of communication with a beneficiary.

Wherever the fault lies for the unpleasant family situation, the trust

relationship remains intact, and communication is a critical component of that

relationship. In fact, a trustees hostility toward the beneficiaries is a ground for the

trustees removal. See Akin v. Dahl, 661 S.W.2d 911, 914 (Tex. 1983); Barrientos

v. Nava, 94 S.W.3d 270, 286 (Tex. App.Houston [14th Dist.] 2002, no pet.).

Removal is justified if (1) the trustee had hostility toward the beneficiaries, or people

19

associated with them, and (2) the hostility does or will affect [the trustees]

performance in the office. Akin, 661 S.W.2d at 914 (removal of trustee pursuant to

jury trial was not justified absent a finding that hostility has affected or will affect

trustees performance); Barrientos, 94 S.W.3d at 288 (removal of trustee was

justified because hostility toward mother of minor beneficiaries would impair

trustees ability to disburse funds consistent with minors best interests).

Removing the family-dynamic overlay, assume that instead of her husband

Tom, Shirley had named the Trust Department of Frost Bank as Trustee. Further

assume that after twenty consecutive years of making monthly maintenance-and-

support distributions to Renee, Frost Bank, with no explanation, terminated those

distributions and wrote a letter to Renee and her children declaring: Frost Bank

wants no further contact with any of you and you will not be allowed to enter Frost

Banks facilities. Under these circumstances, is there any way it could be said that

Frost Bank act[ed] in that state of mind in which the settlor [Shirley] contemplated

that it should act? Howard, 229 S.W.2d at 783. Of course notany court would

legitimately find such conduct by a banks trust department to constitute a breach of

the trust. The analysis and result should be no different when the Trustee happens to

be the fathereven an upset fatherof the Trusts principal beneficiary.

Here, the Trustees December 27, 2014, letter is evidence that his hostility

toward Renee, Rita, and Ryan for ostensibly creating an unpleasant family

20

situation led him to sever all communication. A severing of communication will

almost by definition affect [the trustees] performance in the office. Akin, 661

S.W.2d at 914. And it unquestionably has the potential to do so. Because the

Trustees hostility was sufficient ground for his removal, it was certainly sufficient

to support the lesser remedy of temporary suspension and appointment of co-

receivers pending final trial.

D. Tom breached, and threatened to breach, the Trust through his actions directed at Lone Star Capital Bank.

The Trust Code provides that [a] trustee shall invest and manage the trust

assets solely in the interest of the beneficiaries. TEX. PROP. CODE 117.007.

Shirleys Trust owns over 97% of the Bank, 3 RR 49, making it a significant Trust

asset. As demonstrated below, Tom committed an actual and threatened breach of

trust by (i) abruptly transferring nearly $25 million out of the Bankincluding $4.76

million in cash owned by the Trustwith no explanation or evident justification;

and (ii) attempting to remove half of the Banks Board of Directorsincluding the

Chairman of the Board, the Vice-Chairman, and Reneeagain, with no explanation

or evident justification. Those actions impaired the banks [sic] functions and could

cause other depositors concern, thus threatening the Banksand by extension

Shirleys Trustswell-being. 1 Supp. CR 13-14.

21

1. Tom breached the Trust by abruptly transferring $25 millionover 12% of total depositsout of the Bank.

As Trustee of the Trust that owns over 97% of the Bank, Tom controls the

appointment of the Board of Directors, and so the Bank. 4 RR 80. He is also a

director of the Bank. 4 RR 63. Shortly before Christmas 2014, the Banks President

and CEO, Danny Buck, was informed through back channels that Tom might move

funds from the Bank. 4 RR 62, 66-67. On January 7, 2015, Tom directed that nearly

$25 million be transferred from the Bank to new accounts Tom opened at Frost Bank.

4 RR 68-69, 71. Of that $25 million, $4.76 million belonged to Shirleys Trust. 3

RR 119.

Bank President Buck testified that its not a good thing for the bank to lose

that amount of deposits. 4 RR 83. In order to make an initial transfer of

approximately $17 million, the Bank was forced to deplete approximately $11

million of funds held in correspondent banks, and pull another $6 million from the

Banks Fed funds account. 4 RR 85-86. To fund the remainder of the transfer, the

Bank had to liquidate securities in its portfolio and obtain a short-term loan of $3

million from the Federal Home Loan Bank. 4 RR 86.

The $25 million that Tom withdrew represented over twelve percent of the

Banks $203 million in deposits. 3 RR 80; 4 RR 87. A bank of this size normally

does not get an order to withdraw this much money at one time. 3 RR 78. Managing

that magnitude of a withdrawal constituted a crisis for the Bank. 4 RR 86. Although

22

Buck managed the crisis well, this was the first time in his 34-year career in banking

that he had to manage a crisis created by the owner of the bank himself. 4 RR 62,

86.

A reduction in bank deposits of this magnitude has no impact on the book

value of a bank. 4 RR 87. But it has the obvious and significant potential to

negatively impact a banks market value. 3 RR 79; 4 RR 87-88. When asked by the

Court if a customer of a bank this size would be nervous to learn about a withdrawal

of such magnitude, Buck replied: Sure. 4 RR 93-94. When asked about the

withdrawals effect on the publics trust in the Bank, Buck responded, it doesnt

look good. 4 RR 94.

During the two-day hearing, no evidence was presented of any justification,

much less a compelling need, for Tom to suddenly transfer $25 million to Frost

Bank. No explanation was ever given to either the Banks Chairman or its President

as to why Tom directed that transfer. 3 RR 80. Toms only response is that he had

the legal right and authority to make the transfer. But that is not the point. The point

is that his disconcertedly sudden withdrawal, 1 Supp. CR 13, of such a large

amount affirmatively jeopardized the Banks financial integrity. Absent any

countervailing interest or justification for such a precipitous action, Toms exercise

of fiduciary discretion was arbitrary, capricious and, when placed in context with his

statements and other actions, apparently motivated by nothing more than hostility

23

toward Renee. By taking affirmative steps likely to place a Trust asset at risk of

devaluation, Tom did not manage the trust assets solely in the interest of the

beneficiaries. TEX. PROP. CODE 117.007. See Abetter Trucking, 113 S.W.3d at

508.

2. Tom actually breached the Trust, or at the least threatened to, by attempting to fire half of the Banks Board of Directors without cause.

On January 17, 2015, the Bank provided notice of a Special Meeting of

Shareholders, the sole purpose of which was to remove five of the ten members of

its Board of Directors: Roddy, McCandless, Renee, Rita, and Ryan. 3B RR Ex. 6; 3

RR 83. Tom was the person behind this attempt to remove half of the Board

members. 4 RR 81. And the only thing that prevented this from happening was a

temporary restraining order issued by the probate court. Id.

Three of the directors Tom tried to remove occupy key positions on the Board:

Tom Roddy has served as Chairman of the Board since the Bank was

acquired by Shirleys Trust and became Lone Star Capital Bank. 3 RR 50, 63.

He testified about his intention to step down as Chairman in May 2015 on his

75th birthday and become Chairman Emeritus. 3 RR 137.

Bill McCandless was one of the Banks original directors. 3 RR 52. He serves

in a dual role as both Vice-Chairman of the Board and officer, and also chairs

the directors loan committee. 4 RR 79-80. Roddy testified that McCandless

24

was slated to become Chairman of the Board when Roddy stepped down. 3

RR 137. Between them, Roddy and McCandless have 80 years of banking

experience in San Antonio. 3 RR 52.

Renee Benson has served as a director of the Bank since its acquisition by the

Trust. 3 RR 63. Renee has been a very active member of the Board, serving

on the audit, compliance and policy committees, and chairing the

compensation committee. 4 RR 78-79. She participated with Roddy in

recruiting Danny Buck to become its President. 4 RR 78.

Had Tom been successful in ousting these three directors, it would

undoubtedly have been detrimental to the Bank. 4 RR 81. As Bank President Buck

testified, Its never good to have a disruptive board. Id.. Relationships are very

important in the small banking industry. 3 RR 82; 4 RR 81. McCandless in particular

has substantial relationships with the businesses in and around San Antonio that do

business with the Bank. 4 RR 81-82. Given their combined 80 years of banking

experience in San Antonio, Roddy and McCandless, if fired, could have taken a

substantial number of the Banks deposits and loans with them to another bank. 3

RR 82. Buck never lobbied Tom to have Chairman Roddy or Vice-Chairman

McCandless removed from the Board, and it never would have occurred to him as

President that that would have been in the Banks best interest. 4 RR 82. At the time

25

Tom sought to have them ousted, the Bank was both profitable and growing. 4 RR

83.

No one at the hearing provided any explanation as to why Tom sought to have

these key directors removed, much less why removing them would have been in the

best interest of the Bank. The only evidence was to the contrarythat it would not

have been in the Banks best interest. Thus, Tom breached his fiduciary duty to the

Trust and its beneficiaries by attempting this hostile move that would have harmed

the interest of this key Trust asset. In acting as he did, Tom did not manage the trust

assets solely in the interest of the beneficiaries. TEX. PROP. CODE 117.007.

E. Tom committed an actual, and a threatened, breach of trust by hiding the bookkeeper.

Tom instructed the Trusts bookkeeper, Mary Polensky, to surreptitiously

move out of the Renson offices, hide in his personal condominium, and refrain from

communicating with Renee, thus violating his duty of full disclosure by insuring

that the beneficiaries could not be informed about the trust in the future. CR 85.

Trustees owe beneficiaries a fiduciary duty of full disclosure of all material facts

known to them that might affect [the beneficiaries] rights. Huie v. DeShazo, 922

S.W.2d at 923 (quoting Montgomery, 669 S.W.2d at 313). The existence of strained

relations between the parties [does] not lessen the fiduciarys duty of full and

complete disclosure. Montgomery, 669 S.W.2d at 313.

26

In early December 2014, Roddy noticed that Mary was absent from the

Renson holiday party and thought that quite odd. 3 RR 129. Unbeknownst to him,

Tom had ordered her to move out of the Renson offices. 3 RR 251. Tom told her,

dont tell anybody that youre moving, just be there on a Friday, and then on

Monday be gone. 4 RR 59.

When Roddy came to work the following Monday, Marys office was

emptyher computer and files gone. 3 RR 130. He and Renee attempted to learn

her whereabouts and left a message on her cell phone, 4 RR 53-54, but Mary never

returned the callagain, on Toms orders. 4 RR 45, 49, 55, 59. He said, dont tell

anybody where you are and dont talk to them. 4 RR 59.

Roddy and Renee did not see Mary again for almost two monthswhen she

testified on the second day of the evidentiary hearing. See 4 RR 7-60. In fact, when

Renee testified the day before, she still did not know Marys whereabouts. 3 RR 268.

As they learned the following day from Marys testimony, she had moved her office

from Renson to Toms San Antonio condominium. 4 RR 12-13. Toms intentional,

premeditated actions in denying Renee access to the bookkeeper of Shirleys Trust

amounted to a breach of trust, and threatened a continuing breach of trust in the

future. These actions justified Toms suspension as Trustee and the appointment of

temporary receivers.

27

F. Though actual harm to the Trust was shown, no showing of harm or less intrusive methods is required.

Tom asserts that no evidence supports a temporary receivership because the

Trust had suffered no harm. This complaint lacks merit. The trial court expressly

found that the Trustees actions and statements of motivation negatively impacted

the trust, 1 Supp. CR 13, and there was ample support in the evidence. Moreover,

the Texas Trust Code does not require harm to have actually occurred. It authorizes

suspension of the trustee and appointment of a receiver to remedy a breach of trust

that . . . might occur. TEX. PROP. CODE 114.008(a) (emphasis added). In other

words, it authorizes prevention of damage. Id. Accordingly, no showing of actual

harm is required.

Also contrary to Toms contention, the statute contains no requirement that

less intrusive remedies be considered before appointing a receiver. Id.

114.008(a)(5). To the contrary, all of the remedies 114.008(a) authorizes are

equally available, in the trial courts discretion. Id. 114.008(a). For example, the

statute authorizes a court to:

compel the trustee to perform the trustees duty or duties, id. 114.008(a)(1);

compel the trustee to redress a breach of trust, id. 114.008(a)(3); or

appoint a receiver, 114.008(a)(5).

28

The statute does not place those remedies into a hierarchy or condition the

appointment of a receiver on the inadequacy of alternative relief.

The Trustee cites cases that condition statutory receiverships on the absence

of other remedies, but in most of those decisions the statutes themselves contained

the requirement. See Trustee Br. at 24 (citing Benefield, 266 S.W.3d at 32-33

(applying Texas Business Corporations Act); and Chapa v. Chapa, No. 04-12-

00519-CV, 2012 WL 6728242, at *6 (Tex. App.San Antonio Dec. 28, 2012, no

pet.) (mem. op.) (applying Texas Business Organizations Code). In the remaining

case, the statement Tom cites is dicta that offers little support for his contention.3 By

contrast, 114.008(a) has no such requirement.

In any event, the trial court was well within its discretion to conclude that an

injunction alone would be inadequate. A mandatory injunction ordering the Trustee

to resume communication with Renee would have been difficult, if not impossible,

to enforce. The trial court could have had good reason to believe that policing the

3 In Elliott, the court applied the requirement that other remedies must be inadequate even though 114.008 was one possible ground for the appointment of the receiver. Elliott v. Weatherman, 396 S.W.3d 224, 228-29 (Tex. App.Austin 2013)(no. pet.). This was dicta, as the receivership failed for lack of notice, id. at 228, and as the other source of authority was 64.001 of the Civil Practice and Remedies Code, which incorporates the rules of equity. Id.; see TEX. CIV. PRAC. & REM. CODE 64.001(a)(6). Moreover, Elliotts dicta relies on Benefield and Fortenberry v. Cavanaugh, No. 03-04-00816-CV, 2005 WL 1412103, at *2-3 (Tex. App.Austin June 16, 2005, no pet.) (mem. op.) in which receivers were predicated on the Business Corporations Act, which expressly prescribed a requirement that all other remedies be inadequate.

29

quantity and quality of Toms communication with Renee would have been an

unmanageable task.

For example, consider what Tom managed to achieve, or attempted to achieve,

within the space of just a few weeks: he cut off all communication with his child and

grandchildren; he removed $25 million from a bank 97% owned by the Trust, $4.86

million of which were Trust assets; he attempted to remove half of the members of

the Banks Board of Directors, including its Chairman and Vice-Chairman; he

successfully engineered the after-hours disappearance of a bookkeeper who was the

custodian of key information about Trust assets; he cut off monthly maintenance-

and-support distributions that had been made to the beneficiary for twenty years; and

he deliberately gutted the beneficiarys business. It would have been virtually

impossible for the court to fashion an injunction that could anticipate the nature and

extent of potential damage that Toms hostility toward the beneficiary might cause.

Even so, the trial court gave careful consideration to the competing interests

and granted narrowly tailored relief. The trial court temporarily suspended Tom as

Trustee and made a limited temporary appointment of co-receivers [with

restrictions] . . . [as] immediately necessary for purposes of managing and

conserving the Trusts [and the Estates] property during litigation . . . CR 76; Order

at 1. Moreover, the trial court has closely supervised the Co-Receivers, issuing

further instructions and clarifications as necessary.

30

G. The Trustee had ample notice that a receivership had been requested.

The Trustee creates the false impression that the trial court ambushed him

when it appointed the co-receivers. See Trustee Br. at 34-36. He complains that (1)

he never received notice of the grounds for Petitioners application to appoint

receivers, (2) no evidence or argument has been presented on whether to appoint

a receiver, and (3) the issue of appointing a receiver only arose after the conclusion

of evidence. Id. at 35. In fact, the Trustee had ample notice that a receivership was

at issue, and he introduced evidence attempting to disprove the breaches of trust:

Renee requested a receivership in her original petition, filed on January

21, 2015. CR 5, 16 (describing breaches and potential breaches of trust

and requesting appointment of a temporary receiver for the purpose

of conserving and managing the trust assets pending final trial).

Renees counsel sent a letter to the trial court on February 3, 2015, with

a copy to counsel for the Trustee, summarizing the issues for the

hearing and stating, a Receiver should be appointed as soon as

possible. Appendix 2.4

4 Renees counsel has requested the trial courts clerk to prepare a Supplemental Record including the letter, which will then be forwarded to this Court together with a request to supplement the record.

31

Renees counsel orally renewed the request for a temporary

receivership in his opening statement on Day 1 of the hearing. 3 RR 4.

Later the same day, counsel for the Trustee conceded: Theyve asked

for a receivership. 3 RR 286.

The Trustees contention that Renee, or the trial court, ambushed him with the

receivership is simply not true.

The Trustees complaint seems to be that the word receivership did not

appear in the paragraph of the temporary restraining order that set a hearing date for

the temporary injunction. See Trustees Br. at 34-35. The Trustee cites no authority

that an order can be reversed on such flimsy grounds. Contrary to the Trustees

contention, Elliott does not support this proposition. In Elliott, the court reversed an

order appointing a receiver not for an alleged defect in the formal notice of the

hearing, but because no party had pleaded or even mentioned receivership until after

the evidence closed. Elliott v. Weatherman, 296 S.W.3d 224, 229 (Tex. App.

Austin 2013) (no pet.) (Accordingly, we conclude that Weatherman has not pled an

application for receivership, and there is nothing in the record suggesting that Elliot

and Clem otherwise had notice prior to the hearing that Weatherman would request

such relief.).

The record demonstrates that the Trustee was on full notice that a receivership

was at issue. In fact, he claims no actual surprise. When the subject of receivership

32

came up during opening statements, 3 RR 34 (We absolutely we want a receiver,

your Honor), the Trustees attorneys did not object, complain about lack of notice,

or request a continuance.

The Trustees conduct and express statements negate any suggestion of

surprise, and his failure to object at the hearing and request a continuance waives

any complaint about notice. See Negrini v. Beale, 822 S.W.2d 822, 823 (Tex. App.

Houston [14th Dist.] 1992, no pet.) (holding that party waived lack of 21-day notice

for summary-judgment hearing where the party actually received notice, appeared

at hearing, filed no controverting affidavit, and did not request a continuance).

Further, he has not even arguedmuch less demonstratedharm. He does not

explain what additional evidence he would have introduced if the word

receivership had appeared in the TRO.

Notice of statutory authority for receivership. Tom also complains that the

trial court anchored the receivership in 64.001(a) of the Civil Practice and

Remedies Code in addition to the statute Renee pleaded114.008 of the Property

Code. But such an addition does not undermine the Order, and Tom cites no

authority that it does.

II. The trial courts order complies with Texas Rule of Civil Procedure 683.

The Trustee contends the Second Amended Order is void for failure to meet

the requirements of Texas Rule of Civil Procedure 683, which provides that

33

temporary injunctions must identify the reasons for an injunction. Trustee Br. at 38-

40. More specifically, the Trustee argues that the order does not identify the probable

harm absent an injunction and how that harm is irreparable. Id. at 39-40. In the

Trustees view, the trial court provided only a conclusory rationale, and the Court

should conclude that the temporary injunction, as well as the order appointing the

co-receivers, is thus void. The Trustees argument has no merit because: (1) the order

appointing co-receivers is not governed by Rule 683; and (2) the trial court supplied

sufficient reasons for the injunction in its review of the Trustees actions and

statements and their effect on the Trust.

A. The appointment of receivers is not an injunction, and thus not within Rule 683s purview.

The Trustee erroneously asserts that any noncompliance with Rule 683

renders the injunction, as well as the receivership, order void. Trustee Br. at 40. But

the Trustees Rule 683 challenge can extend no further than the scope of the rule

itselfthe injunctive portion of the order. By its plain terms, Rule 683s reach is

limited to orders granting an injunction. TEX. R. CIV. P. 683. Moreover, the Trust

Code and the Civil Practice and Remedies Code are independent sources of the trial

courts authority to appoint the co-receivers. See TEX. PROP. CODE 114.008(a)(5)

(authorizing appointment of receiver as remedy for breach of trust); TEX. CIV. PRAC.

& REM. CODE 64.001(a) (providing for possible remedy of receivership); see also

1 Supp. CR 4 (citing both statutory provisions).

34

Sections 114.008(a)(5) and 64.001(a)not Rule 683govern the

receivership orders requirements. See, e.g., Onoray Davis Trucking Co., Inc. v.

Lewis, 635 S.W.2d 622, 624-25 (Tex. App.Houston [14th Dist.] 1982, writ

dismd) (rejecting challenge to temporary injunction for lack of compliance with

Rules 680, 682, 683, and 684 because those rules were inapposite when the probate

court was acting under its power to preserve estate assets and effectuate its decrees).

Significantly, the Trustee raises no voidness challenge to the order appointing the

co-receivers on the basis of Section 114.008(a)(5) or Section 64.001(a). This aspect

of the Trustees argument fails.

B. The temporary injunction complied with Rule 683, and thus was not an abuse of discretion.

The Trustee contends the temporary injunction is void because it states only

conclusory reasons regarding irreparable harm. But even a cursory review of the

order demonstrates that its reasons are amply sufficient. The order states that the

Trustee is enjoined from a list of specific acts related to the Trust because the Trustee

will commit those acts and Renee will be irreparably harmed for the reasons

provided in the Addendum to the Order. 1 Supp. CR 5-6. The trial court then details

its reasonsactions and statements of the Trusteein the Addendum, which is

incorporated by reference. See id. at 5, 13. The trial court explains that its injunction

was prompted by the following actions and statements by the Trustee, with the

35

critical areas of concern being the no contact letter and the movement of the trust

records and funds. Id. at 15-16.

1. Sudden, inexplicable withdrawal of trust funds from Lone Star Capital Bank (1 Supp. CR 13-14)

The trial court concluded that the Trustees withdrawal from Lone Star Capital Bank was likely to harm the Trust because it was 12% of the banks capitalization and the bank is 97% owned by the Trust. The Trustees fear about the safety of the money was particularly unwarranted because the Trustee appointed all of the banks long-term executives and board members. The trial court noted that there was no evidence that the transferred funds remained at Frost Bank. The court also observed that both sides presented evidence that the withdrawal of the funds impaired the trust-owned banks functions and could cause concern to other bank depositors.

2. Testimony by Trustees bookkeeper that Trustee told her to abscond with the Trust and records (1 Supp. CR 14)

The trial court regarded this direction as a sudden departure from the historic trust relationship and a breach of the trust relationship.

3. Trustees letter to beneficiaries ending contact with them, together with firing the beneficiary and her children while also ending decades-long payments (1 Supp. CR 14-15)

The trial court concluded that (1) the letter was most contrary to the evident intentions of the settlors of the Trust when it was established; (2) evidence of Renees behavior that could cause such anger was meager; (3) the letter was in contrast to evidence that the Trustee revere[d] family, church and friends and particularly loved his only surviving child; and (4) the letters disclaimer of all parental care was a serious life-altering change at his age.

4. Excessive fear exhibited by Trustees statement to a dealership general manager that he was the only person trusted by the Trustee in San Antonio (1 Supp. CR 14)

36

This statement stood in contrast to evidence of the Trustees trusted relationships with an extensive set of key managers for decades and that these long-term loyalties were a hallmark of his business.

5. Trustees health problems (1 Supp. CR 15)

The court took note that all the direct evidence and all the witnesses agreed that the Trustee has substantial health issues and this trustee does not seem to be improving. The court identified this issue as a contributory factor of concern, noting that the court had decades of experience dealing with the vulnerable and the Trustee himself confesse[d] that at my age the pressures are too much.

The court also observed that it had allowed the Trustee three intervening days

between hearings to reverse his decisions impacting and breaching the Trustsuch

as returning the trust funds and releasing the trust recordsas well as an opportunity

to explain his statements, but the Trustee chose not to. Id. at 16. The fact that the

Trustee did not address or rectify his actions was an indication that they would likely

continue in the future and a further basis for the trial courts decision to enjoin the

Trustee. Id.

In addition, the court found that the Trustees actions will likely damage the

trustees local brand [i.e. the Banks brand] significantly over this next year if not

reversed soon and if the major interested parties were not reassured by a restoration

of the prior status quo and stability and calmness. Id. The court further noted that

one Bank executive resigned his duties while on the stand before the court, and

recognized that time was of the essence. Id.

37

In short, the trial courts rationale for the temporary injunction was the

Trustees actions and statements animated by evident hostility, their negative impact

on the Trust, and anticipated continued breaches of the Trustees duties. The Trustee

contends the trial court provided only conclusory statements that Renee would be

irreparably harmed, but in fact the court provided specific examples of the Trustees

hostile statements and actions, negative impacts on the trust assets, the Trustees

intent to make trust records unavailable, and a desire to sever all connections with

the beneficiaries, all of which were a stark contrast with the Trustees history and

character and, more importantly, with the intent of the Trusts settlorShirley

Benson.

Further, the court explained that despite being given the opportunity, the

Trustee had chosen not to alter his course of action or explain his statements and

actions. In addition, the court identified health issues that could exacerbate the

circumstances. The trial court specifically observed that the evidence on the key

areas of concernthe severance of contact and the movement of trust assets and

recordswas not disputed. The court supplied more than enough detail of

dissipation and devaluation of trust assets and continued damage to trust

relationships and the Trustees reputation and business relationships, all of which

are by definition irreparable injuries.

38

One of the purposes of Rule 683 is to enable an understanding of the basis for

the courts ruling. See, e.g., El Tacaso, Inc. v. Jireh Star, Inc., 356 S.W.3d 740, 747-

48 (Tex. App.Dallas 2011, no pet.). There is no need to speculate about the basis

for the temporary injunction here given the comprehensive reasons the trial court

provided. See, e.g., Amalgamated Acme Affiliates, Inc. v. Minton, 33 S.W.3d 387,

397 (Tex. App.Austin 2000, no pet.) (holding order sufficiently provided reasons

by stating that appellants conduct was interfering with appellees relationships with

his customers and advertisers and that appellee was likely to suffer immediate and

irreparable injury without an injunction).5

The level of detail the trial court provided undermines the Trustees claim that

its reasons were merely conclusory. Decisions holding temporary injunctions to be

conclusory on the irreparability-of-harm point are instructive. They generally

involve mere recitations of no adequate remedy at law and irreparable harm.

See, e.g., Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex. Civ.

App.San Antonio 1981, no writ) (mere recital of irreparable harm and no

5 See, e.g., IAC, Ltd. v. Bell Helicopter Textron, Inc., 160 S.W.3d 191, 200 (Tex. App.Fort Worth 2005, no pet.) (holding that order satisfied requirements by stating that appellee had shown that appellants had possession of appellees data entitled to trade-secret protection and were actively using that information to compete with appellee).

39

adequate remedy at law does not satisfy Rule 683).6 The court in this case went far

beyond such cursory statements.

Indeed, the critical prerequisite to a conclusory label is an absence of

underlying facts. In Arkoma Basin Exploration Co. v. FMF Associates 1990A Ltd.,

the Texas Supreme Court explained that conclusory means [e]xpressing a factual

inference without stating the underlying facts on which the inference is based. 249

S.W.3d 380, 389 n.32 (Tex. 2008)(citing Blacks Law Dictionary 308 (8th ed. 2004)).

Accordingly, an absence of underlying facts to support the finding that irreparable

injury will occur is a common basis for determining that an order does not satisfy

Rule 683. See, e.g., Kotz v. Imperial Capital Bank, 319 S.W.3d 54, 56 (Tex. App.

San Antonio 2010, no pet.) (The trial court fails to set forth any underlying facts to

support its finding that irreparable injury . . . will occur, making the courts finding

conclusory.) (quotation omitted).

The authorities relied on by the Trustee are in that category. See Trustee Br.

at 38-39. In Torres, the injunction merely stated that the plaintiffs had no adequate

6 See also, e.g., Rio Grand Exploration, L.L.C. v. Anju Prod., L.L.C., No. 04-08-00495-CV, 2009 WL 618616, at *2 (Tex. App.San Antonio Mar. 11, 2009, no pet.) (mem. op.) (concluding that reasons were insufficient when only reason provided was that the property would be subject to probable irreparable injury, and did not expressly identify defendants conduct); Monsanto Co. v. Davis, 25 S.W.3d 773, 788 (Tex. App.Waco 2000, pet. dismd w.o.j.) (concluding that order was insufficiently specific when it stated that plaintiffs will suffer probable injury); Gen. Homes, Inc. v. Wingate Civic Assn, 616 S.W.2d 351, 353 (Tex. Civ. App.Houston [14th Dist.] 1981, no writ) (finding that order did not satisfy Rule 683 because it only states the trial courts conclusion that immediate and irreparable harm will result if the injunction is not granted).

40

remedy at law and would suffer irreparable harm. 616 S.W.2d at 357. In Tuma v.

Kerr County, 336 S.W.3d 277, 280 (Tex. App.San Antonio 2010, no pet.), this

Court concluded that a temporary injunction did not comply with Rule 683 when it

set forth no reasons why injury would result without an injunction. The Trustees

last-cited decision also stands in contrast to the detail the trial court provided in this

case. In International Brotherhood of Electrical Workers Local Union 479 v. Becon

Construction Co., Inc., the court of appeals decided that a temporary injunction

enjoining a labor union from obstructive mass picketing did not satisfy Rule 683

when it merely stated that the defendants were in violation of a Texas Labor Code

provision, but failed to identify a probable injury or how it was irreparable. 104

S.W.3d 239, 244 (Tex. App.Beaumont 2003, no pet.). The court in this case did

not provide such perfunctory reasoning. Instead, it provided extensive underlying

facts in a 4-page Addendum, as discussed supra, belying the Trustees attempt to

label the order conclusory.

III. Toms due-process challenges to the Amended Order fail.

The Trustee asserts that when the trial court amended its original order, it

denied him notice of the basis of its rulings and the opportunity to effectively object,

violating his due-process rights and Texas Rule of Civil Procedure 21(b). Trustee

Br. at 36-38. The Trustee, however, appears to confuse his disagreement with the

trial courts rulings with established notice and due-process requirements. He fails

41

to: (1) identify a basis for his purported due-process and Rule 21 rights; (2)

demonstrate that he did not receive notice or an opportunity to be heard on Renees

arguments or the relief sought; or (3) explain how the trial courts amendments of

its order caused the Trustee harm.

The Trustee invokes Rule 21(b) and due-process rights, using the term

notice in making his complaint, but fails to identify any precedent or specific rule

provision to justify his contention. Rule 21(b) concerns only service on all other

parties of an application to a trial court for an order and notice of a hearing on the

request.7 And Rule 21(b) imposes that obligation on a litigant, not a court. Neither

do the remaining provisions of Rule 21 provide support for the Trustee, as they

concern filing and service, certificates of service, electronic filing, and the

availability of additional copies of pleadings. See TEX. R. CIV. P. 21(a), (c)-(f).

The Trustee also cites due process in complaining that the trial court should

have given him notice and an opportunity to be heard before amending its order.

Notice and an opportunity to be heard are indeed the key elements of procedural due

process. See, e.g., Tex. Workers Comp. Commn v. Patient Advocates of Tex., 136

S.W.3d 643, 658 (Tex. 2004). In asserting a due-process challenge, however, the

7 The rule requires service on all other parties at least three days before a hearing on the requested order, unless other rules provide differently or the court shortens the time period. See TEX. R. CIV. P. 21(b).

42

Trustee must establish that his interest was constitutionally protected. See, e.g., In re

Baby Girl S., 407 S.W.3d 904, 911 (Tex. App.Dallas 2013, pet. denied), cert.

denied sub nom., Cole v. Generations Adoptions, 135 S. Ct. 1896 (2015). He fails to

even suggest a protected interest in the trial courts original order.8 Without a basis

for the trial courts supposed obligation, the Trustees argument fails.

The Trustees due-process complaint regarding the amended orders

substance is likewise unavailing. The Trustees counsel appeared at the two-day

hearing, introduced evidence, cross-examined witnesses, and argued against Renees

contentions and the proposed receivership. They also filed a letter with the trial court

identifying purported deficiencies in the Courts Amended Order. The Trustee fails

to show any violation of due process. See, e.g., In re C.F.M., 360 S.W.3d 654, 660-

61 (Tex. App.Dallas 2012, no pet.) (rejecting argument that due process required

notice and an additional hearing prior to appointment of receiver when trial court

had already held multiple hearings where evidence was presented, which remained

before the court at the time of its ruling).

8 By contrast, some actions do require prior notice and opportunity to be heard because they involve the deprivation of a protected interest. See, e.g., Ex parte Blanchard, 736 S.W.2d 642, 643 (Tex. 1987) (order of contempt); In re Hereweareagain, Inc., 383 S.W.3d 703, 708 (Tex. App.Houston [14th Dist.] 2012, no pet.) (sanctions for out-of-court conduct); Hunt v. State ex rel. K.C., No. 03-11-00352-CV, 2012 WL 3793283, at *2 (Tex. App.Austin Aug. 31, 2012, no pet.) (mem. op.) (family-violence protective order); Conseco Fin. Servicing v. Klein Indep. Sch. Dist., 78 S.W.3d 666, 676 (Tex. App.Houston [14th Dist.] 2002, no pet.) (default judgment).

43

The trial court had discretion to amend its order, and the Trustee does not

assert otherwise. Texas Rule of Appellate Procedure 29.5 affirms the trial courts

continuing jurisdiction over a case while an appeal from an interlocutory order is

pending, and specifically permits the trial court to make further orders, including

even dissolving the order being appealed. In accordance with Rule 29.5, the trial

court had authority to modify or amend the original order to grant substantive relief

and to bring the order into compliance with Texas Civil Procedure Rules 683 and

684, so long as its actions did not interfere with or impair this Courts jurisdiction or

the effectiveness of the relief the Trustee seeks on appeal. See, e.g., Tex. Health &

Human Servs. Commn v. Advocates for Patient Access, Inc., 399 S.W.3d 615, 623-

25 (Tex. App.Austin 2013, no pet.).9

The Trustees argument fails for yet another reason. He does not even assert

that the purported due-process violation was harmful. See TEX. R. APP. P. 44.1(a);

Thota v. Young, 366 S.W.3d 678, 687 (Tex. 2012). There is no indication what

argument or evidence the Trustee would have presented had he been given notice

and hearing prior to issuance of the amended order. See, e.g., In re C.F.M., 360

S.W.3d at 660-61 (Tex. App.Dallas 2012, no pet.) (concluding that any due-

process error in not holding additional hearing was harmless because appellant gave

9 Rule 29.5 also precludes a trial court from issuing an order that is inconsistent with a temporary order by the court of appeals, but that limitation is not implicated here. See TEX. R. APP. P. 29.5(a).

44

no indication of additional evidence he would have offered or how it would have

impacted receivership order); C/S Solutions, Inc. v. Energy Maint. Servs. Group

LLC, 274 S.W.3d 299, 307-08 (Tex. App.Houston [1st Dist.] 2008, no pet.)

(rejecting challenge to summary-judgment order on basis that notice of its

reconsideration was inadequate because any error was harmless when no new

motions, pleadings, or evidence had been presented and there was no assertion of

harm). Without a showing of harm, there can be no reversible error.

PRAYER

Appellee respectfully requests that this Court affirm the trial courts order.

45

Respectfully submitted, Bennett L. Stahl State Bar No. 19006500 blstahl@csg-law.com CURL STAHL GEIS, P.C. One Riverwalk Place 700 North St. Marys Street Suite 1800 San Antonio, Texas 78205 Telephone: (210) 226-2182 Telecopier: (210) 226-1691 Emily Harrison Liljenwall State Bar No. 12352250 eliljenwall@scs-law.com SCHOENBAUM, CURPHY & SCANLAN, P.C. 112 E. Pecan, Suite 3000 San Antonio, Texas 78205 Telephone: (210) 224-4491 Telecopier: (210) 224-7983

/s/ Harriet ONeill Harriet ONeill State Bar No. 00000027 honeill@harrietoneilllaw.com LAW OFFICE OF HARRIET ONEILL, P.C. 919 Congress Avenue, Suite 1400 Austin, Texas 78701 Telephone: (512) 944-2222 Telecopier: (512) 476-6441 Douglas W. Alexander State Bar No. 00992350 dalexander@adjtlaw.com Amy Warr State Bar No. 00795708 awarr@adjtlaw.com ALEXANDER DUBOSE JEFFERSON & TOWNSEND LLP 515 Congress Avenue, Suite 2350 Austin, Texas 78701-3562 Telephone: (512) 482-9300 Facsimile: (512) 482-9303

Attorneys for Appellee Renee Benson

46

CERTIFICATE OF SERVICE

On July 10, 2015, I electronically filed this Brief of Appellee with the Clerk

of the Court using the eFile.TXCourts.gov electronic filing system which will send

notification of such filing to the following:

David J. Beck State Bar No. 00000070 dbeck@beckredden.com Russell S. Post State Bar No. 00797258 rpost@beckredden.com Troy Ford State Bar No. 24032181 tford@beckredden.com BECK REDDEN LLP 1221 McKinney Street, Suite 4500 Houston, Texas 77010-2010 Telephone: (713) 951-3700 Telecopier: (713) 951-3720

Phillip A Wittmann (admitted pro hoc vice) pwittmann@stonepigman.com James C. Gulotta, Jr. jgulotta@stonepigman.com STONE PIGMAN WALTHER WITTMANN L.L.C. 546 Carondelet Street New Orleans, Louisiana 70130-3558 Telephone: (504) 581-3200 Telecopier: (504) 581-3361

C. David Kinder State Bar No. 11432550 dkinder@coxsmith.com Mark J. Barrera State Bar No. 24050258 mbarrera@coxsmith.com Ellen B. Mitchell State Bar No. 14208875 emitchell@coxsmith.com COX SMITH MATTHEWS 112 E. Pecan Street, Suite 1800 San Antonio, Texas 78205 Telephone: (210) 554-5500 Telecopier: (210) 226-8395

Steven R. Brook State Bar No. 03042300 sbrook@langleybanack.com Joyce W. Moore State Bar No. 14357400 jwmoore@langleybanack.com LANGLEY & BANACK, INC. 745 East Mulberry Avenue, Suite 900 San Antonio, Texas 78212 Telephone: (210) 736-6600 Telecopier: (210) 735-6889

/s/ Harriet ONeill Harriet ONeill

47

CERTIFICATE OF COMPLIANCE

Based on a word count run in Microsoft Word 2013, this brief contains 10,737

words, excluding the portions of the brief exempt from the word count under Texas

Rule of Appellate Procedure 9.4(i)(1).

/s/ Harriet ONeill Harriet ONeill

INDEX TO APPENDIX 1. Addendum to Order 2. Letter

APPENDIX 1

13

14

15

16

17

APPENDIX 2

BENNETT L. STAHL BOARD CERTIF1to-CIVIL 'TRIAL La.w TtXAS BOARD OF le:GAL SPECIALIZATION blstahl@csslaw.com

VIAFAX210-335-2029 &

LAW OFFICES

CURL STAHL GEIS A PROFESSIONAL CORPORATION

.700 NORTH ST, MARY'S STREET, SUITE I 800

SAN ANTONIO, TEXAS 78205 TELEF>HONE (210) 2262162 TELECOPIER (210) 226-1691

wwwzsglaw.com

February 3, 2015

EMAIL: judgetomrickhoff@gmail.com

Honorable Tom Rickhoff Bexar County Probate Court #2 Bexar County Courthouse l 00 Dolorosa, Suite 117 San Antonio, TX 78205-3002

Re: Estate of Shirley L. Benson, Cause No. 155,572, In Probate Court No. 2 of Bexar County, Texas.

Dear Judge Rickhoff:

As instructed, I foiwarded the Court's letter of January 29 to the attorneys for Respondent Thomas Benson as Trustee, Phillip Wittmann, Esq. and David Beck, Esq. Later that day counsel and I conferred by telephone regarding the questions presented in the Court's letter. There appears to be agreement on some of the issues raised.

Time Needed for Hearing

After conferring, we believe one full day may be sufficient for the entire hearing set for Wednesday.

Jurisdiction and Venue

My understanding is there will be no challenge to jurisdiction or venue.

Relevant Instruments

There is general agreement that the relevant instruments are the ones mentioned in the Petition of my client, Renee Benson. Those instruments are the Last Will of Shirley Benson and its two Codicils that were admitted to probate, along with the Judgment from 2000, modifying the testamentary trust.

Honorable Tom Rickhoff February 3, 2015 Page2

Necessary Parties

The necessary parties appear to be properly named, except that Mr. Wittmann informed me of his understanding that years ago Mr. Benson resigned as trustee of the 1991 trusts for Renee's children, and that Renee is the successor trnstee of those trusts, which are beneficiaries of the Testamentary Trust. We may amend the Petition accordingly, to reflect Renee as trnstee of those beneficiary trusts. My understanding is those trusts hold no assets at present.

Limited Purpose Co-Trustee

I do not know whether the limited purpose Co-Trustee will enter an appearance. I have sent a proposed Waiver of Citation to an attorne