Renee Benson Brief

ACCEPTED
04-15-00087-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
7/10/2015 3:32:15 PM
KEITH HOTTLE
CLERK
NO. 04-15-00087-CV
IN THE COURT OF APPEALS FOR THE

FOURTH DISTRICT OF TEXAS AT SAN ANTONIO
ESTATE OF SHIRLEY L. BENSON
FILED IN
4th COURT OF APPEALS
SAN ANTONIO, TEXAS
07/10/2015 3:32:15 PM
KEITH E. HOTTLE
Clerk
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
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
eliljenwall@scs-law.com
SCHOENBAUM, CURPHY
& SCANLAN, P.C.
112 E. Pecan, Suite 3000
Telephone: (210) 224-4491
Telecopier: (210) 224-7983
Douglas W. Alexander
dalexander@adjtlaw.com
Amy Warr
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
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.
III.
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
Toms due-process challenges to the Amended Order fail ..........................40
Prayer ......................................................................................................................44
Certificate of Service ..............................................................................................46
Certificate of Compliance .......................................................................................47
ii
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
iii
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
iv
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
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
vi
STATEMENT OF THE CASE

Nature of the
Case:
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
Parties in the
Trial Court:
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?
vii
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
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 ViceChairman (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.
Shirleys Trust 1 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 16061, 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.
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.
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
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
5
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
(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
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.
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
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.
10
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
11
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.
12
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 . . . .).
13
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.
14
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,
15
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 20708.
See http://www.forbes.com/profile/tom-benson/?list=forbes-400 (last visited 7/10/2015).
16
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
17
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
18
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-andsupport 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
19
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 coreceivers 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.
20
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
21
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
22
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
23
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
24
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.
25
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.
26
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).
27
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. 04-1200519-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
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.
28
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 maintenanceand-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.
29
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
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.
30
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
31
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
32
temporary injunctions must identify the reasons for an injunction. Trustee Br. at 3840. 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).
33
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
34
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)
35
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.
36
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.
37
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, 74748 (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
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).
38
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
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).
39
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
40
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
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).
41
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, 66061 (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).
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).
42
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, 62325 (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 dueprocess error in not holding additional hearing was harmless because appellant gave
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).
43
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.
44
Respectfully submitted,
Bennett L. Stahl
blstahl@csg-law.com
CURL STAHL GEIS, P.C.
One Riverwalk Place
700 North St. Marys Street
Suite 1800
Telephone: (210) 226-2182
Telecopier: (210) 226-1691
Emily Harrison Liljenwall
eliljenwall@scs-law.com
SCHOENBAUM, CURPHY
& SCANLAN, P.C.
112 E. Pecan, Suite 3000
Telephone: (210) 224-4491
Telecopier: (210) 224-7983
/s/ Harriet ONeill

Harriet ONeill
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
dalexander@adjtlaw.com
Amy Warr
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
45
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
dbeck@beckredden.com
Russell S. Post
rpost@beckredden.com
Troy Ford
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
dkinder@coxsmith.com
Mark J. Barrera
mbarrera@coxsmith.com
Ellen B. Mitchell
emitchell@coxsmith.com
COX SMITH MATTHEWS
112 E. Pecan Street, Suite 1800
Telephone: (210) 554-5500
Telecopier: (210) 226-8395
Steven R. Brook
sbrook@langleybanack.com
Joyce W. Moore
jwmoore@langleybanack.com
LANGLEY & BANACK, INC.
745 East Mulberry Avenue, Suite 900
Telephone: (210) 736-6600
Telecopier: (210) 735-6889
/s/ Harriet ONeill

Harriet ONeill
46
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
47
INDEX TO APPENDIX
1.
Addendum to Order
2.
Letter
APPENDIX 1
13
14
15
16
17
APPENDIX 2
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
BENNETT L. STAHL
BOARD CERTIF1to-CIVIL 'TRIAL
La.w
TtXAS BOARD OF le:GAL SPECIALIZATION
blstahl@csslaw.com
February 3, 2015
VIAFAX210-335-2029 &
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 ofShirley 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.

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 attorney in Mr. Rosenberg's law firm.
The Core Issue In This Case

Renee's father, the Trustee, recently failed to pay certain expenses that in the past had
been the responsibility of the Trustee, relating to assets and investments of the Shirley Benson
Testamentary Trust of which Renee is a beneficiary. Other troubling actions have also occurred
recently that adversely impact businesses in which the Testamentary Trust is heavily invested.
Renee has suddenly been blocked from communicating with her father about these Trust matters,
and about anything else. She received written notice, purportedly from the Trustee, stating that
he does not wish to communicate with her ever again.
A trustee has several fiduciary duties, including the duty of loyalty and the duty of
competence. A trustee also has a common law duty to keep a beneficiary reasonably informed
concerning the trust's administration, and the material facts necessary for the beneficiary to
protect her interests. Mr. Benson has breached these duties, which is grounds for removal as
Trustee under Texas Property Code l 13.082(a). A violation that may be grounds for removal
is regarded as a breach of trust. Texas Property Code l 13.082(b). To remedy a breach of trust
that has occurred "or might occur" the court may enjoin the trustee, suspend the trustee, appoint
a receiver, remove the trustee, or order "any other appropriate relief." Texas Property Code
114.008.
Renee does not believe that her father intentionally breached his fiduciary duties as
trustee. Rather, she believes that he is no longer capable of fulfilling his obligations due to his
declining health. Mr. Benson's short te1m memory, reasoning ability, and stamina are impaired.
Mr. Benson's ability to exercise sound judgment is impaired, making him vulnerable to
manipulation. This condition places the assets of the Testamentary Trust at risk of dissipation
and unwarranted diminution in value. It is imperative to take action before the problem grows
worse. In the interest of all concerned, a temporary injunction should be entered preserving the
status quo, a Receiver should be appointed as soon as possible, and ultimately the trustee should

February 3, 2015
Page 3
be judicially removed unless he can be encouraged to voluntarily retire from his position as
trustee.
Major Assets of Testamentary Trust

All parties agree that the major assets of the Shirley Benson Testamentary Trust include:
a.
b.
c.
97 percent of Lone Star Capital Bank;

49 .9999 percent of Bensco, Inc., which in turn owns 100% of several car
dealerships in San Antonio and elsewhere; and
Commercial real estate, residential real estate, and other assets.
The parties also agree that the Shirley Benson Testamentary Trust does not own any
interest in the NFL New Orleans Saints or NBA New Orleans Pelicans.
Other Trusts Not At Issue In This Proceeding

The pruties agree that there exist certain other trusts involving this family, and the parties
agree that those trusts are not the subject of this litigation.
The fact that the trusts were created, however, is relevant to the Court's understanding of
the nature and quality of Mr. Benson's relationship with Renee Benson and her children, Rita
and Ryan, which in tum establishes why Renee is in a position to testify credibly about her
father's recent decline.
In 2009, Mr. Benson as settlor created three irrevocable trusts. The beneficiaries are
Renee and her two adult children, Ryan LeBlanc and Rita LeBlanc. Tom Benson appointed
Bobby Rosenthal, of the Rosenthal Pauerstein law firm, as Trustee. Mr. Benson conveyed, into
those 2009 trusts the following assets:
a.
b.
c.
d.
e.
The remaining 50.0001 percent ofBensco, Inc. not owned by the

Shirley Benson Testamentary Trust;
100 percent of Zelia LLC, which owns a 26 story office tower in New
Orleans;
Real estate on which certain car dealerships are located;
24.5 percent of Benson Football, LLC, which owns the New Orleans
Saints; and
other assets.
Similarly, in 2012, Mr. Benson as settlor created three additional irrevocable trusts, again
naming Renee, Rita and Ryan as beneficiaries and again naming Bobby Rosenthal as trustee.
Mr. Benson conveyed into those 2012 trusts the following assets:

February 3, 2015
Page4
a.
b.
An additional 31.965 percent of Benson Football, LLC.; and

95 percent of Benson Basketball, LLC, which owns the NBA New
Orleans Pelicans.
Also in 2012, Mr. Benson as settlor created a Grantor Retained Annuity Trust (GRAT),
again naming Renee, Ryan and Rita as beneficiaries, and Bobby Rosenthal as trustee. Mr.
Benson conveyed 20.936 percent of Benson Football, LLC into the 2012 GRAT.
Finally, in 2014, Mr. Benson created yet another GRAT, again with Renee and her
children as beneficiaries, and Bobby Rosenthal as Trustee, concerning an additional 12.599
percent of Benson Football, LLC.
As a result of Mr. Benson's elaborate estate planning in 2009, 2012, and 2014, Renee and
her two children became the beneficiaries of irrevocable trusts that owned the majority of both
the New Orleans Saints and New Orleans Pelicans, reflecting a succession plan approved by the
NBA and NFL. Perhaps that fact was upsetting to somebody near Mr. Benson.
It is undisputed that each of the 2009 and 2012 irrevocable trusts and the GRAT's allows
Mr. Benson as grantor the unilateral right to remove assets from the trusts in exchange for
replacement assets of equivalent value.
Renee Benson's petition in the instant case seeks 1w relief from this Court with respect to
the 2009 and 2012 irrevocable trusts, or the GRAT's of 2012 and 2014. The TRO restricts Mr.
Benson only in his capacity as trustee of the Shirley Benson Testamentary Trust, and only with
respect to the assets held by the Testamentary Trust. Renee seeks 110 injunctive relief relating to
the 2009 and 2012 irrevocable trusts or the GRAT's of 2012 and 2014. The case we are
presenting to this Court is nairnw and simple.
Interdiction Determination in New Orleans

If the New Orleans court interdicts Mr. Benson, such adjudication alone would constitute
grounds for this Court to remove Mr. Benson as Trustee of the Testamentary Trust.
For the sake of argument, ifthe New Orleans court were somehow persuaded against
interdiction, that finding would not preclude this Court from removing Mr. Benson as Trustee
under Texas Property Code 113.082. The standard of competence for a fiduciary under Texas
law is a high standaid.

February 3, 2015
Page 5
Telephonic Conference
All counsel discussed whether a telephonic conference with the Court prior to the hearing
would be useful. We do not believe it is necessary from our perspective. However, if the Court
would find it useful, we will gladly do as the Court wishes.
Renee Benson loves her father and cares deeply about his health and happiness. We
appreciate the Court's interest in this important matter.
Cc:
Phillip Wittmann, Esq.

David Beck, Esq.
Emily Harrison Liljenwall, Esq.

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ACCEPTED

IN THE COURT OF APPEALS FOR THE

ESTATE OF SHIRLEY L. BENSON

THOMAS MILTON BENSON, JR., AS TRUSTEE OF THE

On Interlocutory Appeal from Probate Court No. 2,

ATTORNEYS FOR APPELLEE

A trustee is a fiduciary whose duties are prescribed by the

The beneficiary demonstrated both actual and threatened

Tom committed an actual, or at least a threatened, breach of

Tom breached, and threatened to breach, the Trust through his

Tom committed an actual, and a threatened, breach of trust by

Though actual harm to the Trust was shown, no showing of harm

The Trustee had ample notice that a receivership had been

The appointment of receivers is not an injunction, and thus not

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

El Tacaso, Inc. v. Jireh Star, Inc.,

Statutes and Rules

STATEMENT OF THE CASE

Action to remove trustee and request for temporary injunction

Petitioner: Renee Benson

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

Granted temporary relief, including:

STATEMENT REGARDING ORAL ARGUMENT

automotive facilities in New Orleans and will have no right to give

SUMMARY OF THE ARGUMENT

the basic legal framework for deciding a trust case.

A trustee is a fiduciary whose duties are prescribed by the

The beneficiary demonstrated both actual and threatened breaches

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

According to the trial court, [i]t appears the

Tom committed an actual, or at least a threatened, breach of

By unilaterally cutting off all communication with the beneficiary, Shirleys

A trustee does not have unlimited discretionhe must act

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

By severing all contact with Renee, Tom failed to act as the

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

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

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

Tom breached, and threatened to breach, the Trust through his

Tom breached the Trust by abruptly transferring $25

Tom actually breached the Trust, or at the least threatened

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

Tom committed an actual, and a threatened, breach of trust by

Tom instructed the Trusts bookkeeper, Mary Polensky, to surreptitiously

Though actual harm to the Trust was shown, no showing of harm

Tom asserts that no evidence supports a temporary receivership because the

The Trustee had ample notice that a receivership had been

Renees counsel orally renewed the request for a temporary

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

The appointment of receivers is not an injunction, and thus not

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

Sudden, inexplicable withdrawal of trust funds from Lone Star

Testimony by Trustees bookkeeper that Trustee told her to

Trustees letter to beneficiaries ending contact with them,

Excessive fear exhibited by Trustees statement to a dealership

This statement stood in contrast to evidence of the Trustees trusted

Trustees health problems (1 Supp. CR 15)

Toms due-process challenges to the Amended Order fail.

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

/s/ Harriet ONeill

Attorneys for Appellee Renee Benson

/s/ Harriet ONeill

/s/ Harriet ONeill

CURL STAHL GEIS