Tom Benson Reply Brief

7/18/2019 Tom Benson Reply Brief

http://slidepdf.com/reader/full/tom-benson-reply-brief 1/48

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

mailto:[email protected]









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



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



1884.1/565017 iii

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



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



1884.1/565017 v

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



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.



1884.1/565017 2

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.



1884.1/565017 3

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).



1884.1/565017 4

“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



1884.1/565017 5

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.



1884.1/565017 6

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.



1884.1/565017 7

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.



1884.1/565017 8

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.



1884.1/565017 9

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.



1884.1/565017 10

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.



1884.1/565017 11

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”



1884.1/565017 12

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.”).



1884.1/565017 13

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.



1884.1/565017 14

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.



1884.1/565017 15

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.



1884.1/565017 16

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



1884.1/565017 17

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



1884.1/565017 18

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.”



1884.1/565017 19

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



1884.1/565017 20

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



1884.1/565017 21

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



1884.1/565017 22

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,



1884.1/565017 23

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



1884.1/565017 24

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.



1884.1/565017 25

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



1884.1/565017 26

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



1884.1/565017 27

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.



1884.1/565017 28

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.



1884.1/565017 29

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.



1884.1/565017 30

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 .



1884.1/565017 31

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.



1884.1/565017 32

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







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

[email protected]

Harriet O’Neill LAW OFFICE OF HARRIET O’NEILL, P.C.

919 Congress Avenue, Suite 1400Austin, TX 78701

[email protected]

Douglas AlexanderALEXANDER , DUBOSE, JEFFERSON & TOWNSEND LLP

515 Congress Ave., Suite 2350Austin, TX 78701

[email protected]

Attorneys for Appellee Renee Benson

/s/ David J. BeckDavid J. Beck











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



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)



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)



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.



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



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



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



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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Tom Benson Reply Brief

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Transcript of Tom Benson Reply Brief