In the Court of Appeals Second Appellate District of Texas at Fort Worth ___________________________ No. 02-23-00104-CV ___________________________
IN THE ESTATE OF CLAUDE M. COOPER, JR., DECEASED
On Appeal from Probate Court No. 2 Tarrant County, Texas Trial Court No. 2021-PR03242-2A
Before Bassel, Wallach, and Walker, JJ. Memorandum Opinion by Justice Wallach MEMORANDUM OPINION
This appeal arises from the probate court’s denial of the Texas Citizens
Participation Act (TCPA) motion to dismiss filed by Appellants Mary Sue Cooper
Huffman and Virginia Cooper Downes (collectively, the Trustees), who are co-
trustees of a testamentary trust (the Trust) in favor of their now-deceased brother,
Claude Cooper, Jr. Their motion sought dismissal of the breach-of-fiduciary-duty
claims filed by Claude’s son, Appellee James Franklin Cooper. James’s claims are
based on (1) Mary Sue’s withdrawing $100,000 from the Trust shortly before Claude’s
death, allegedly to create a trust for Claude’s other child and (2) the Trustees’ filing
two suits for declaratory relief regarding the proper distribution of trust assets. The
Trustees’ motion was overruled by operation of law.
On appeal, the Trustees argue in one issue with multiple subparts that the
probate court erred by denying, either in whole or in part, the Trustees’ TCPA motion
to dismiss James’s claims. From the record before this court, the TCPA applies to
James’s claims against the Trustees, James did not produce prima facie evidence for
most of his claims but did produce prima facie evidence of one of the claims, and the
Trustees negated as a matter of law the claims against Virginia and all but one claim
against Mary Sue. Accordingly, we reverse the trial court’s denial of the TCPA motion
as to all claims against Virginia and all but one claim against Mary Sue, but we affirm
the trial court’s denial of the motion as to the claim against Mary Sue based on her
withdrawing $100,000 from the Trust.
2 Background
I. The Trust
The Trust was created in the will of Ruth Messer Cooper, a lifelong resident of
Alabama. The will divided Ruth’s assets among her three children: Mary Sue, Virginia,
and Claude. Claude’s share was placed in the Trust, and Mary Sue and Virginia were
named as trustees. Ruth’s will gave Claude the power to appoint in his will who would
receive the Trust’s assets upon his death. The will further provided that if Claude did
not exercise the power of appointment, the Trustees were to distribute the Trust’s
assets per stirpes to Claude’s descendants. At the time of his death, Claude had two
children: James and his sister Rachel.
II. Claude’s Will and Death
Claude executed a will in 2019. The will left nothing to Rachel but did not
expressly mention the Trust. Claude died on August 21, 2021. Rachel was present at
his death, but James was not.
According to Mary Sue, shortly before Claude’s death, she asked him if he
wanted to “do something for Rachel,” and Claude said yes. Mary Sue then withdrew
$100,000 from the Trust and placed it in a bank account “with the expectation that
[she] would work out the details of a trust for Rachel.”
Claude’s funeral was held on September 18. On September 20, James sent Mary
Sue an email in which he thanked her for putting together the memorial service for his
father and asked her to respond to an attached email, which his attorney had sent him
3 ten days before, regarding the withdrawn funds.1 The attorney’s email stated that
Mary Sue had “stole[n] from [Claude’s] assets” and would be held civilly and
criminally liable:
I find it most disturbing that you mentioned that [Mary] Sue removed $100,000.00 from the trust account for the benefit of Rachel. First of all, the trust for your father was set up to provide for your father during his lifetime, the trust assets belonged to your father only. The trust did not list you or your sister as beneficiaries. If [Mary] Sue did remove money from the trust, she is in violation of the Texas Trust Code and will be held liable. If [Mary] Sue removed money from the estate after your father’s death, she is also liable under the Texas Probate Code. The money must be placed back into the trust account, or the Judge could order a bench warrant for your aunt’s arrest, either way you look at it, [Mary] Sue stole from your father’s assets.
[Mary] Sue is in violation of her fiduciary duty to your father and the penalty could be severe. [Mary] Sue can be prosecuted both civilly and criminally since she is a Trustee.
Remember, your father disinherited his daughter in his Will and he never revoked his Will.
Please forward this email to [Mary] Sue or have her attorney contact me. [Emphases added.]
The Trustees’ attorney in Alabama sent a letter to James’s attorney responding
to the email. The letter stated that the funds had been returned to the Trust, with
interest, and it enclosed the August and September financial statements for the Trust.
The letter further stated that the Trustees’ attorney and their Texas counsel had
reviewed Claude’s will and did not believe that it exercised the power of appointment,
James’s brief states that his demand for the money’s return occurred before 1
Claude’s death, but the record does not support this assertion.
4 and consequently, the Trustees were proposing a distribution plan. See Ala. Code § 19-
3B-817(a). Under that plan, the Trustees would distribute half of the Trust’s assets to
James and Rachel before December 2021 and would hold the remainder in the trust
account until filing the Trust’s final income tax return and paying all trust expenses.
See id. § 19-3B-817(b). They also asked James and Rachel to sign a release waiving a
formal accounting and releasing the Trustees from liability regarding the Trust’s
management.2 After receiving the release, the Trustees planned to distribute the
remainder of the Trust’s assets after paying expenses and filing the Trust’s tax returns.
James’s attorney responded with a letter that the Trustees’ attorney interpreted
as an objection to the distribution plan. The attorneys exchanged letters disagreeing
about whether Claude had exercised a power of appointment in his will and whether
the Trust’s assets belonged to Claude’s estate.
III. The Trustees’ Litigation
After James filed an application to probate Claude’s will, the Trustees filed a
plea in intervention. In their plea, they asked the trial court for two declarations:
(1) Claude had not exercised the power of appointment over the Trust and
(2) because Claude did not exercise the power of appointment, the assets in the Trust
must be distributed per stirpes. They also requested attorney’s fees.
2 Such a release would not release a trustee from liability for a breach of duty if at the time of its signing, the beneficiary “did not know of the material facts relating to the alleged breach and the trustee had actual knowledge of the facts relating to the alleged breach.” See Ala. Code § 19-3B-1009.
5 After severing the Trustees’ claims into a separate proceeding, the probate
court granted partial summary judgment for the Trustees, declaring that Claude had
not exercised in his will the testamentary power of appointment granted to him in
Ruth’s will. The trial court denied summary judgment on the Trustees’ second
requested declaration that the Trust’s assets should be distributed per stirpes. The
Trustees then nonsuited their second request for declaratory relief. Ten days after the
Trustees nonsuited their second request, James filed a “Plea in Interevetion [sic] for
Declaratory Relief and Request for Temporary Unjunction [sic],” requesting a
declaratory judgment that the Trust had been terminated. Despite the trial court’s
partial summary judgment, James also requested a declaration that Claude’s will had
left the Trust’s assets to James.
A few days later, the Trustees filed a petition for declaratory judgment in
Alabama. In that Alabama suit, the Trustees asked the Alabama trial court to
determine the proper distribution of the Trust’s assets. They further asked the
Alabama trial court to declare that the Trustees had not breached their fiduciary duties
by filing their declaratory judgment actions and by Mary Sue’s withdrawal of funds.
The Trustees then moved for final judgment in their Texas suit, which the trial
court granted in part. The trial court’s interlocutory judgment incorporated its
previous summary judgment order declaring that Claude’s will had not exercised the
power of appointment regarding the Trust, and it awarded the Trustees attorney’s
fees.
6 IV. James’s Suit
Ten days after the trial court signed its interlocutory judgment, James filed
counterclaims in the Trustees’ Texas suit for breach of fiduciary duty against the
Trustees.3 James alleged that because of the $100,000 withdrawal from the Trust, he
had been damaged by “thousands of dollars of fees” as well as “losses on the assets
[that the Trustees had] sold to remove the funds.” James further alleged that the
Trustees’ “theft” caused a conflict of interest such that when Claude died, the only
“possible legitimate course of action to take assuming for the sake of argument that
they are not completely disingenuous about the alleged conflict in the interpretation
of Ruth and Claude’s Wills” was “to provide James with half of the [T]rust proceeds,”
to “interplead the other half of the funds into the registry of the Court,” and “to note
that because of the complete conflict with them attempting to mitigate their past
deeds, they can take no further role with regard to the half of the money that it could
be argued [Rachel] had an interest in.”
James further contended that the Trustees had brought their declaratory
judgment action to hide their withdrawal of funds and to withhold his share of the
trust from him “in order to obtain litigation costs leverage over him.” He alleged that
the Trustees had “improperly requested that [the Alabama trial court] give them
another shot at” the declaratory relief that they had nonsuited in the Texas
The record does not reflect the status of the Alabama suit involving the same 3
issues.
7 proceeding. He claimed that he had suffered damages by the Trustees selling the
Trust’s assets at a net loss and by “[l]ocking [him] into [s]tock losses he otherwise
would not have incurred, by refusing to turn over ANY of his trust to him.”
The Trustees filed a TCPA motion to dismiss James’s counterclaims, asserting
that James’s breach-of-fiduciary-duty claims arose from their exercise of their right to
petition—specifically, their requests for declaratory relief in the probate court and in
the separate petition that they had filed in Alabama. The Trustees attached exhibits to
their motion, including a copy of Ruth’s will; a copy of Claude’s will; the Alabama
petition; the email from James’s attorney that James had forwarded to Mary Sue
shortly after Claude’s funeral; and letters between the Trustees’ attorney and James’s
attorney showing their disagreement over whether Claude’s will had included or
needed to include a power of appointment. They also attached Mary Sue’s affidavit in
which she stated that she had withdrawn the $100,000 after Claude had said he
wanted to do something for Rachel and after Mary Sue had “spoke[n] with James
about it, and James said that he was okay with putting $100,000 in a trust for Rachel if
James could be the trustee.”
James filed a response to the TCPA motion. He asserted that the day before
Claude died, the Trustees had “essentially stole[n] $100,000 from the [T]rust to give to
one of their daughters to hold in trust for someone who indisputably had absolutely
no right to the [sic] any of [the] funds, or any benefit from them, let alone to the
completely mystifying sum of exactly $100,000.” He further alleged that “the Trustees’
8 actions have continued to lock [James] into equities in the Trust which are currently
suffering heavy losses at a time at which [James], considering his proximity to
retirement, would prefer to be more risk adverse.” Although he claimed that he had
pled five separate breaches of fiduciary duty against the Trustees, his claims
complained of only three acts by the Trustees—(1) the withdrawal of money from the
Trust, (2) the Trustees’ pursuing declaratory relief in Texas rather than immediately
turning over at least half of the Trust’s assets to him, and (3) the Trustees pursuing
declaratory relief in Alabama.
James attached three exhibits to his response: a copy of the trial court’s partial
summary judgment order; the October 2021 letter from the Trustees’ Alabama
counsel stating that the $100,000 plus interest had been returned to the Trust and
proposing a plan of distribution; and three pages from one of the Trust’s account
statements. The partial account statement revealed that in mid-August 2021, some of
the securities held by the Trust had been sold, generating a little over $100,000, less
fees incurred for the sales. One of the statement pages contained a handwritten note
stating, “Cost Basic [sic] (Purchase Price) – Sale Amount = Loss: $63,911.37.” This
referred to an entry on the statement regarding one of the securities that had been
sold; the statement listed the sale amount as $24,200.38 and the cost basis as
$88,111.75. The Trustees filed a reply asserting that all James’s claims, as pled, were
predicated on the Trustees’ exercise of their right to petition for declaratory relief.
9 The trial court signed an order granting the TCPA motion in part, dismissing
all the claims against Virginia and the claims against Mary Sue that arose from the
Trustees’ filing suits in Texas and Alabama, and ordering that the Trustees and James
submit attorney’s fees evidence. The same day, the trial court signed another order
denying the TCPA motion in part and stating that the only breach-of-fiduciary-duty
claim remaining was the claim against Mary Sue regarding the withdrawal of funds,
and “[a]ll other claims [were] dismissed per [the] contemporaneous order.” However,
these orders were not signed until April 3, 2023. The trial court had held the TCPA
hearing on February 28, 2023, and as a result, the TCPA motion had already been
overruled by operation of law on March 30, 2023. See Tex. Civ. Prac. & Rem. Code
Ann. §§ 27.005(a), 27.008(a). The Trustees filed this appeal from the denial of their
motion.
Standard of Review and Burden of Proof
This court reviews a ruling on a TCPA motion to dismiss de novo. Beving v.
Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied). The party
moving for dismissal under the TCPA has the initial burden to demonstrate that the
legal action to be dismissed “is based on or is in response to: (1) the party’s exercise
of: (A) the right of free speech; (B) the right to petition; or (C) the right of association;
or (2) the act of a party described by [Texas Civil Practice and Remedies Code]
Section 27.010(b).” Tex. Civ. Prac. & Rem. Code Ann. § 27.005.
10 If the TCPA movant satisfies the burden to show the TCPA’s applicability, the
opposing party may resist dismissal by “establish[ing] by clear and specific evidence a
prima facie case for each essential element of the claim in question.” Id. § 27.005(c).
Even when the opposing party establishes a prima facie case, however, the TCPA
movant will still be entitled to dismissal if the movant “establishes an affirmative
defense or other grounds on which the moving party is entitled to judgment as a
matter of law.” Id. § 27.005(d).
In determining whether a legal action should be dismissed under the TCPA, the
trial court must consider evidence that a court could consider under Texas Civil
Procedure Rule 166a and “supporting and opposing affidavits stating the facts on
which the liability or defense is based.” See id. § 27.006(a); Stickland v. Schlegel, No. 02-
22-00281-CV, 2023 WL 8112889, at *19 (Tex. App.—Fort Worth Nov. 22, 2023, no
pet.) (mem. op.). The court must also consider the pleadings, but pleadings “are not a
substitute for clear and specific evidence of ‘each essential element of the claim in
question.’” USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195, 200 n.13 (Tex.
2023) (quoting In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)).
Discussion
I. Standing and Capacity
As an initial matter, we address the Trustees’ contention that James lacks
standing to sue them for breach of fiduciary duty. They argue that James cannot
complain about any Trust transactions that occurred before Claude died because
11 before that time James was only a “potential future beneficiary” of the Trust and thus
did not have an enforceable interest in the trust. That is, although they acknowledge
that he alleged that he suffered damages as a result of the Trustees’ conduct, they
contend that he does not have the right to sue in his individual capacity about
anything that happened while his interest in the Trust was contingent. They further
contend that he does not have standing to sue as Claude’s executor because has not
alleged any damages in that capacity. They raised this same complaint in the trial
court.
We disagree. We first observe that the Trustees do not appear to challenge
James’s standing in “the ‘proper, jurisdictional sense,’” which requires the plaintiff to
allege a concrete, particularized injury in fact. See Herbig, Tr. of Welch Fam. Tr. C v.
Welch, Tr. of Welch Manry Fam. Tr., No. 01-22-00080-CV, 2023 WL 4188074, at
*4 (Tex. App.—Houston [1st Dist.] June 27, 2023, no pet.) (quoting Berry v. Berry,
646 S.W.3d 516, 527 (Tex. 2022)); see also Heckman v. Williamson Cnty., 369 S.W.3d 137,
154 (Tex. 2012) (setting out requirements of standing doctrine). To the extent that the
Trustees do challenge James’s standing, we are unpersuaded. The Trustees
acknowledge that James has claimed that Mary Sue’s withdrawal reduced the value of
the Trust’s assets, and there is no dispute that he has an interest in at least some of
those assets or that he had that interest at the time that he filed his breach-of-
fiduciary-duty claims.
12 As we discuss below, Alabama law applies to the Trust’s administration. Under
Alabama law, the Trustees’ complaint goes to capacity rather than standing. See Daily
v. Esser, Nos. SC-2022-0672, SC-2022-0673, SC-2022-0992, 2023 WL 6324888, at
*19–20 (Ala. Sept. 29, 2023) (discussing arguments that purported to challenge
standing that in actuality related to other doctrines, such as capacity, that do not
implicate the subject-matter jurisdiction of a trial court); see also Ex parte Skelton,
275 So. 3d 144, 151 (Ala. 2018) (stating that the “doctrine of standing (particularly as a
jurisdictional concept) has no application in this private-law case”); Norvell v. Norvell,
275 So. 3d 497, 503–05 (Ala. 2018) (stating that question of whether plaintiff was the
correct person to bring his claims was “a real-party-in-interest problem” rather than a
standing problem). Our conclusion is the same applying Texas law. See Herbig,
2023 WL 4188074, at *4 (determining the argument raised by the trustee in that
case—that the plaintiff did not have standing to seek a declaratory judgment regarding
a trust—was a matter of capacity, not of standing); see also Berry, 646 S.W.3d at
527 (noting that resolving question of whether unnamed trust beneficiary was within
class of persons statutorily authorized to sue trustees for breach of duty “may overlap
with, but does not necessarily implicate, questions of standing bearing on subject-
matter jurisdiction”). Although the question of James’s capacity to sue may overlap
with questions of standing, the arguments asserted by the Trustees do not implicate
“questions of standing bearing on subject-matter jurisdiction.” See Berry, 646 S.W.3d at
527.
13 As for the question of capacity, we conclude that James is within the class of
persons authorized to sue the Trustees. First, we reject the assertion that a trustee can
never be sued by a contingent beneficiary. Alabama law provides remedies to
beneficiaries affected by a trustee’s breach of duty, see Ala. Code §§ 19-3B-1001, 19-
3B-1002, and the term “beneficiary” includes anyone who “has a present or future
beneficial interest in a trust, vested or contingent,” id. § 19-3B-103 (emphasis added).
Texas also allows a contingent or vested beneficiary to sue a trustee for breach of
fiduciary duty. See Tex. Prop. Code Ann. §§ 111.004 (defining “beneficiary” and
“interested person”), 115.011(a) (authorizing any “interested person” to bring suit
relating to trust administration); Berry, 646 S.W.3d at 527–28 (applying Texas Property
Code Sections 111.004, 115.001, and 115.011 in analysis of whether contingent trust
beneficiary was authorized by statute to bring her breach-of-fiduciary-duty claims and
concluding that she was). Even at the time that Mary Sue transferred the money,
James had a contingent interest in the Trust subject only to Claude’s power of
appointment. See Berry, 646 S.W.3d at 529. Second, and more importantly, in this case
regardless of whether the applicable laws or the terms of the Trust would have
restricted James’s ability to sue the Trustees while Claude was alive, by the time that
he did sue, his interest was no longer contingent. James now unquestionably has a
right to at least a share of the Trust’s assets, and he contends that Mary Sue’s
improper action reduced those assets. Accordingly, James was within the class of
14 persons authorized to bring his claims. See Ala. Code §§ 19-3B-101, 19-3B-1001–02;
Tex. Prop. Code Ann. §§ 111.004, 115.011(a); Berry, 646 S.W.3d at 527.
Although the Trustees cite Alabama law throughout their brief, they do not
discuss Alabama law on the question of standing or capacity. The two Texas cases
relied on by the Trustees pre-date Berry, do not mention Section 115.011 of the Texas
Property Code, and are factually distinguishable. See Moody v. Moody, 613 S.W.3d 707,
719 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (addressing whether an heir
may sue to recover property belonging to an estate when the estate’s personal
representative had declined to bring suit, and not discussing whether a trust’s
beneficiary may sue a trustee for acts taken while the beneficiary’s interest was
contingent); Davis v. Davis, 734 S.W.2d 707, 709 (Tex. App.—Houston [1st Dist.]
1987, writ ref’d n.r.e.) (involving suit by a person who was not named as a beneficiary
of a trust of which his children were beneficiaries and who would have an interest in
the trust only if one of his children died intestate).
In their reply brief, the Trustees argue that Section 115.011 does not authorize
James to bring his suit because although that provision allows an “interested person”
such as a beneficiary to bring claims under Section 115.001, a claim under Section
115.001 does not include tort claims, and thus Section 115.011 does not authorize
James to sue for breach of fiduciary duty. The Trustees do not, however, discuss Berry,
in which the Texas Supreme Court applied Sections 115.001 and 115.011 in its
analysis of whether a contingent trust beneficiary was within the class of persons
15 authorized to sue the trustee for breach of fiduciary duty. Berry, 646 S.W.3d at 527–30.
We therefore disagree that those Property Code sections have no relevance to an
analysis of who may sue a trustee for breach of fiduciary duty. Thus, even applying
Texas law, we conclude that James was authorized to bring his breach-of-fiduciary-
duty claims. We reject the Trustees’ challenge to James’s standing and capacity.
II. Step One: The TCPA’s Applicability
We begin our TCPA analysis by looking at whether the Trustees established the
TCPA’s applicability. “Under the TCPA, the filing of a petition in a lawsuit is a
communication in or pertaining to a judicial proceeding that implicates a party’s
exercise of the right to petition.” Cass v. Hughes as Tr. of Jimmy Celtyn Hughes QTIP
Marital Tr., No. 02-23-00122-CV, 2023 WL 6300593, at *5 (Tex. App.—Fort Worth
Sept. 28, 2023, pet. denied) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann.
§ 27.001(1), (4)). James’s petition alleged that the Trustees had breached their fiduciary
duty by filing the declaratory judgment actions in Texas and Alabama, and those
claims are therefore based on or are in response to the Trustees’ exercise of the right
to petition. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001, 27.003. Thus, the TCPA
applies to those claims.
Likewise, James’s claims based on the withdrawal of $100,000 are, as pled, also
based on or in response to the Trustees’ exercise of the right to petition. James filed
his breach-of-fiduciary-duty claims only after the Trustees filed their Alabama petition
seeking a declaration regarding their performance of their duties. Further, as the
16 Trustees point out, “In each of the substantive paragraphs of James’s pleadings that
mention the $100,000 withdrawal, James explicitly ties his breach of fiduciary duty
claim back to the fact that the Co-Trustees . . . [sought] declaratory relief.” For
example, James pled that the Trustees filed the declaratory proceedings to hide the
withdrawal, alleging that the Trustees had filed suit because “IF [the Trustees] could
convince the eventual trier of fact that [Rachel] was going to get half of the [T]rust,
they could certainly mitigate [their withdrawal] as simply being a ‘premature
distribution.’” He further alleged that the Trustees intentionally filed suit without first
disbursing half of the Trust’s assets to him in order to “obtain litigation costs leverage
over him” and thereby “mitigat[e] their theft.” In other words, according to James’s
petition, the Trustees’ filing suit was a continuation of and cover-up of the theft. See
Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (noting that the plaintiff’s petition is
the best evidence of the nature of the plaintiff’s action); Newstream Roanoke 6.125,
LLC v. Shore, No. 02-22-00506-CV, 2023 WL 5615871, at *4 (Tex. App.—Fort Worth
Aug. 31, 2023, no pet.) (mem. op.) (stating that TCPA movant had shown TCPA’s
applicability by showing that the claims against it were factually predicated on conduct
that fell within TCPA’s scope). The TCPA therefore applies to the claims against the
Trustees based on the theft. Having held that the TCPA applies to all of James’s
claims, we proceed to the next step of the analysis.
17 III. Step Two: Prima Facie Case
Because the Trustees established that James’s claims are based on their
assertion of the right to petition, we proceed to the second step of the analysis and
determine whether James established a prima facie case by clear and convincing
evidence.
To determine whether James made a prima facie case for his claims, we must
first determine what law applies to the claims. Texas law governs the construction of
Claude’s will. See Van Hoose v. Moore, 441 S.W.2d 597, 617 (Tex. App.—Amarillo 1969,
writ ref’d n.r.e.). As for the Trust, the limited appellate record before this court
indicates that Ruth had lived in Alabama all her life and that the Trustees lived in
Alabama and managed the Trust from there, and there is no indication that Ruth
owned any real property in Texas or that any Trust property is located in Texas.
Accordingly, Alabama law governs Ruth’s will and the Trust’s administration. See
Crossland v. Dunham, 140 S.W.2d 1095, 1096 (Tex. 1940); Lanius v. Fletcher, 101 S.W.
1076, 1077 (Tex. 1907); Wilson v. Smith, 373 S.W.2d 514, 517 (Tex. App.—San
Antonio 1963, writ ref’d n.r.e.); see also Ala. Code § 19-3B-108(g); Hoglan v. Moore,
122 So. 824, 828 (Ala. 1929). However, as noted throughout this opinion, on the
matters discussed herein, Alabama law appears to be substantially the same as Texas
law.
Under Alabama law, like Texas law, a breach-of-fiduciary-duty claim requires
proof of “(1) the existence of a fiduciary duty between the parties; (2) the breach of
18 that duty; and (3) damages suffered as a result of the breach.” Regions Bank v. Lowrey,
101 So. 3d 210, 219 (Ala. 2012); cf. Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—
Houston [14th Dist.] 2008, pet. denied) (setting out similar elements for breach of
fiduciary duty under Texas law). As for the existence of a duty, Alabama law requires a
trustee to “administer the trust solely in the interests of the beneficiaries.” Ala. Code
§ 19-3B-802; see also Regions Bank, 101 So. 3d at 219 (“A trustee owes the beneficiaries
of a trust the duty of loyalty, which requires the trustee to preserve trust assets and to
administer the trust solely in the interest of the beneficiaries.”); cf. Peek v. Mayfield,
No. 02-22-00492-CV, 2023 WL 5967886, at *9 (Tex. App.—Fort Worth Sept. 14,
2023, pet. denied) (mem. op.) (noting trustee’s duty of good faith, fair dealing, loyalty,
and fidelity to the trust’s beneficiaries). In this case, the trust instrument—Ruth’s
will—required the Trustees to hold and administer trust property for Claude’s benefit.
James alleged a breach of this duty by alleging that the Trustees had stolen trust
funds before Claude’s death, and James’s TCPA response established a prima facie
case that the Trustees had breached their duty to preserve trust assets and administer
the Trust solely for Claude’s benefit. James attached to his TCPA response a
statement from a trust account showing the withdrawal of funds, thus confirming that
shortly before Claude’s death, a little more than $100,000 had been withdrawn from
the account. He also attached a letter to his attorney from the Trustees’ attorneys
acknowledging that the funds had been withdrawn “for the benefit of Rachel.” The
letter claimed that the withdrawal had been “to fulfill Claude’s wishes,” but it
19 provided no more specific information about Claude’s alleged wishes or how the
attorneys drafting the letter had any knowledge of those wishes. That is, the letter
acknowledged a withdrawal of funds, did not provide enough facts to show how the
withdrawal was for Claude’s benefit, and stated that the withdrawal was for the
benefit of someone other than Claude.
As for damages, at the least, the partial account statement attached to James’s
TCPA response showed that the Trust had incurred “[c]ommissions/[t]rading fees”
of $1,378.70 when Trust securities were sold to raise the $100,000. Accordingly, for
James’s breach of duty claim predicated on the withdrawal of funds, he presented a
prima facie case of the claim. See Ala. Code § 19-3B-1002 (providing that a trustee
who commits a breach of trust is liable to beneficiaries for the greater of “(i) the
amount required to restore the value of the trust property and trust distributions to
what they would have been had the breach not occurred; or (ii) the profit the trustee
made by reason of the breach”).
In their reply brief, the Trustees argue that the partial account statement was
insufficient to show that the trading fees shown in the statement arose from Mary
Sue’s actions, and they point out that the Trust instrument authorized them to sell
securities and to employ and pay for investment advisors. However, the partial
account statement showed that the fees were incurred in sales of securities in mid-
August 2021—less than a week before Claude died—and that those sales generated
$107,914.16, less the fees. The Trustees’ TCPA motion acknowledged that Mary Sue
20 had spoken to Claude about doing something for Rachel “[s]hortly before he passed
away” on August 20, 2021 and that she withdrew the funds after that conversation.
This partial account statement was sufficient to make a prima facie case that the fees
were incurred because securities held by the Trust were sold to generate the
$100,000 for Rachel. The Trustees produced no controverting evidence establishing
that the fees had been generated from unrelated sales. Thus, if Mary Sue’s selling of
securities to fund a trust for Rachel was a breach of Mary Sue’s fiduciary duty, then
the trading fees are damages resulting from that breach. In summary, James produced
a prima facie case that Mary Sue’s withdrawal of funds for Rachel was a breach of the
duty that a trustee owes to trust beneficiaries and that this breach resulted in damages.
As for James’s claim that the Trustees’ mere filing of their declaratory judgment
actions constituted a breach of their duty, he did not support that claim with clear and
specific evidence. The Trustees had a duty to wind up the Trust and distribute its
assets to its beneficiaries upon the Trust’s termination, see id. § 19-3B-817(b), but first
they had to determine who those beneficiaries were. Because they believed that
Claude’s will did not exercise his power of appointment while James believed that it
did, the Trustees sought a judicial declaration of the Trust’s beneficiaries. Texas
provides a procedure for a trustee to obtain declaratory relief related to a will or trust:
A person interested as or through an executor or administrator, including . . . a trustee . . . may have a declaration of rights or legal relations in respect to the trust or estate:
21 (1) to ascertain any class of creditors, devisees, legatees, heirs, next of kin, or others;
(2) to direct the executors, administrators, or trustees to do or abstain from doing any particular act in their fiduciary capacity;
(3) to determine any question arising in the administration of the trust or estate, including questions of construction of wills and other writings; or
(4) to determine rights or legal relations of an independent executor or independent administrator regarding fiduciary fees and the settling of accounts.
Tex. Civ. Prac. & Rem. Code Ann. § 37.005. Alabama has a similar statute. See Ala.
Code § 6-6-225; see also id. §§ 19-3B-201(c) (“A judicial proceeding involving a trust
may relate to any matter involving the trust’s administration, including a request for
instructions and an action to declare rights.”), 19-3B-816(a)(26) (providing that even
after a trust’s termination, a trustee retains the powers appropriate for winding up the
administration of the trust and distributing the trust property to the persons entitled
to it). 4
Although Alabama substantive law applies to the Trust’s administration, other 4
Texas courts have said that Texas’s Declaratory Judgments Act is procedural in nature and therefore applies to Texas suits even when applying the substantive law of another state. See, e.g., Man Indus. (India), Ltd. v. Midcontinent Express Pipeline, LLC, 407 S.W.3d 342, 353 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); cf. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (noting that Texas’s Declaratory Judgment Act is “merely a procedural device for deciding cases already within a court’s jurisdiction”). For purposes of our discussion, it does not matter which state’s declaratory judgment act applies to the Texas suit because either way, the Trustees were authorized to bring their suit.
22 Thus, the Trustees were authorized by statute to bring their Texas and Alabama
suits to resolve a dispute with James over, among other issues, whether Claude’s will
included a power of appointment and whether, under the Trust instrument, the
Trust’s assets should be distributed per stirpes. Further, although James contends that
the Trustees’ declaratory judgment actions were “completely unnecessary,” his
petition acknowledged that Ruth’s will contained two terms that he viewed as
conflicting with respect to the power of appointment issue; that he and the Trustees
disagreed about the proper construction of Ruth’s will, Claude’s will, and the
administration of the Trust, including how the Trustees should wind up the Trust; and
that the disagreement existed before the Trustees filed suit and continued after.
Further, several days before the Trustees filed their Alabama suit, James filed his own
claim for declaratory relief regarding the proper disposition of the Trust’s assets,
thereby recognizing that a dispute existed among the parties about the proper
construction of Claude’s will and who the Trust’s beneficiaries were.
James argued in his petition that if the Trustees truly believed that a declaratory
judgment action was necessary, they should have immediately provided him with half
of the Trust’s assets and interpled the other half of the funds “so that any contesting
parties could, if necessary, bring a cause of action to interpret [Ruth’s] Will.” He
contended that by not following that course of action, they breached their fiduciary
duty. But bringing suit for declarations related to Ruth’s and Claude’s wills is exactly
what the Trustees did, and James’s argument about giving him half of the Trust’s
23 assets upfront ignores the fact that if the Trustees succeeded in their action, they
could be awarded attorney’s fees. See Ala. Code §§ 6-6-231, 19-3B-709; MacKenzie v.
First Ala. Bank, 598 So. 2d 1367, 1371 (Ala. 1992) (stating that the trial court’s
authority to render a declaratory judgment under Section 6-6-225 included the
authority under Section 6-6-231 “to ‘make such award of costs as may seem equitable
and just,’” including an award of attorney’s fees for the trustee to be paid from the
trust); cf. Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Tex. Prop. Code Ann. §
114.064; see also Boyce v. Boyce, Nos. 01-21-00166-CV, 01-21-00477-CV, 2022 WL
17419376, at *15 (Tex. App.—Houston [1st Dist.] Dec. 6, 2022, pet. denied) (mem.
op.) (noting that Texas’s Trust Code and Texas’s Declaratory Judgments Act both
authorize the award of attorney’s fees). Cf. In re McIntire, No. 07-22-00249-CV, 2023
WL 113059, at *2 (Tex. App.—Amarillo Jan. 5, 2023, orig. proceeding) (mem. op.)
(holding that trial court did not abuse its discretion by not ordering trustee to deposit
the trust corpus into the registry of the trial court pending trial of beneficiaries’ claims
against trustee). Further, even when a trust terminates, a trustee of an Alabama trust
has the right “to retain a reasonable reserve for the payment of debts, expenses, and
taxes.” Ala. Code § 19-3B-817. James’s plan of action would have resulted in the
Trustees retaining a reserve solely from the half of the Trust’s assets that is potentially
Rachel’s share.
James further argued that the reason that the Trustees did not turn over half
the funds to him right away was to prevent him from having enough money to mount
24 a legal defense. However, James’s own petition made clear that before the Trustees
filed suit, he and they had disagreed about and retained legal counsel to discuss the
proper disposition of trust property. Additionally, James provided no evidence that
the actual purpose of the Trustees’ litigation was to prevent him from successfully
pursing a breach-of-fiduciary-duty claim based on the withdrawal.
In his brief, James proposes a hypothetical situation in which Rachel has died
and has no children, and he then asserts that the Trustees “have provided NO
evidence that [these hypothetical facts] are not true.” James argues that, if this
hypothetical were true, then the Trustees would have “created a controversy where
none existed.” However, if James wanted to rely on a set of facts to show that the
Trustees’ declaratory judgment actions were unnecessary, then he had the burden to
produce evidence of those facts. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
The Trustees did not have the burden to negate every possible scenario under which
their litigation would have been unnecessary.
James did not establish a prima facie case that the Trustees breached their duty
by pursuing statutorily authorized relief to resolve the parties’ dispute. The trial court
therefore abused its discretion by failing to dismiss the claims against them based on
their pursuing the two declaratory judgment suits.
IV. Step Three: The Trustees’ Defenses
Because James established a prima facie case for the claim against the Trustees
based on the withdrawal, we review the record to see if they established as a matter of
25 law an affirmative defense or some other ground on which they are entitled to
judgment. See id. § 27.005(d).
Regarding Virginia, the Trustees negated her liability. Their motion included
Mary Sue’s affidavit in which she stated that she withdrew the funds after Claude and
James approved the withdrawal:
After Claude’s health began to deteriorate, I asked Claude if he wanted to do something for Rachel. Claude said, “Yes.” I spoke with James about it, and James said that he was okay with putting $100,000 in a trust for Rachel if James could be the trustee. I removed $100,000 from Claude’s trust and placed it in an account at the State Employees Credit Union with the expectation that I would work out the details of a trust for Rachel. I withdrew the funds from Claude’s trust and placed them in the SECU account before Claude’s death.
This evidence established that it was Mary Sue who solely was responsible for the
withdrawal. James, on the other hand, provided no evidence that Virginia had
anything to do with the withdrawal.
On appeal, James does not assert that he produced evidence of Virginia’s
participation in the withdrawal, but he argues that Virginia breached her fiduciary duty
by negligently not noticing Mary Sue’s action. However, he did not allege in his
petition that Virginia had been negligent in not noticing or mitigating Mary Sue’s
actions or in any other manner. Rather, he repeatedly alleged that both Trustees had
withdrawn the money and had thereby committed theft.5 Even in his TCPA response,
James asserted in the trial court and asserts in his brief that the money had 5
been paid to the daughter of one of the Trustees. However, James did not specify
26 he acknowledged that the Trustees had claimed that only Mary Sue had been involved,
and he asserted that Virginia was a co-conspirator in attempting to “mitigate the
damages” from Mary Sue’s withdrawal, but he did not allege that Virginia had been
negligent, and he produced no evidence of Virginia’s participation.
Mary Sue swore in her affidavit that she had been responsible for the
withdrawal, and James produced no evidence to the contrary. Accordingly, the trial
court abused its discretion by denying the TCPA motion regarding any claim against
Virginia based on the withdrawal.
Mary Sue contends that the trial court should have dismissed the claims against
her as well because she withdrew the money with Claude’s (and for that matter,
James’s) permission. We will assume for purposes of this opinion that withdrawing
funds from the Trust at Claude’s request to “do something” for Rachel would qualify
as an act done for Claude’s benefit.6 Nevertheless, Mary Sue’s affidavit was not
sufficient to establish as a matter of law that she did not breach her duty by her
action.
which Trustee or identify the daughter, and nothing in the record supports this assertion. 6 The Trustees argue that the Trust’s terms gave them the authority to sell securities, to acquire property that may not be a proper investment under the law, and to invade the Trust corpus for Claude’s benefit. James has not argued that the Trustees could not have sold the securities, even at a loss, if they did so for Claude’s benefit.
27 A TCPA movant may establish a defense through affidavit testimony. Id.
§ 27.006 (stating that a court ruling on a TCPA motion may consider affidavits and
other evidence that a court could consider under Texas Rule of Civil Procedure 166a).
However, to prove facts through an interested witness such as Mary Sue, the
testimony must be “uncontroverted, clear, positive, direct, credible, free from
contradiction, and susceptible to being readily controverted.” See Residential Dynamics,
LLC v. Loveless, 186 S.W.3d 192, 198 (Tex. App.—Fort Worth 2006, no pet.). The
phrase “‘could have been readily controverted’ does not simply mean that the
movant’s summary judgment proof could have been easily and conveniently rebutted.
Rather, it means that testimony at issue is of a nature which can be effectively
countered by opposing evidence.” Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989).
“[I]f the non-movant must, in all likelihood, come forth with independent evidence to
prevail, then summary judgment may well be proper in the absence of such
controverting proof,” but “[i]f the credibility of the affiant or deponent is likely to be
a dispositive factor in the resolution of the case, then summary judgment is
inappropriate.” Id.
The Trustees had the burden to prove that the withdrawal was not a breach of
Mary Sue’s duty. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); see also First Ala.
Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 424 (Ala. 1982) (stating that as
party asserting defense of acquiescence, ratification, or equitable estoppel, the trustee
defendant had the burden of proving the defense). Mary Sue’s affidavit gives no
28 indication that anyone else was present for her conversation with Claude during which
he said that he wanted to do something for Rachel, which means that only Mary Sue
can testify about the conversation with Claude. Thus, Mary Sue’s credibility “is likely
to be a dispositive factor in the resolution of the case.” See Casso, 776 S.W.2d at 558.
Although Mary Sue’s testimony could be sufficient at trial to establish that Claude
agreed to the withdrawal, given the circumstances, granting the TCPA motion based
on Mary Sue’s affidavit alone would be inappropriate. See id.
Of course, even if Mary Sue were not acting for Claude’s benefit and did
breach her duty, under Alabama law, a trustee is not liable for a breach of duty to a
beneficiary if the beneficiary consents to the transaction. Ala. Code § 19-3B-1009.
However, that exception does not apply if “at the time of the consent . . . the
beneficiary did not know of the material facts relating to the alleged breach and the
trustee had actual knowledge of the facts relating to the alleged breach.” Id. Even if
Mary Sue’s affidavit could be readily controverted, Mary Sue’s affidavit is too short on
details about Claude and Mary Sue’s conversation to establish as a matter of law that
Claude knew all the material facts related to Mary Sue’s plan to establish a trust for
Rachel funded by $100,000 from the Trust or that Claude had given Mary Sue carte
blanche to decide what the “something” done for Rachel should be. 7
7 Texas law likewise authorizes a trust beneficiary to release a trustee from a duty or liability if the beneficiary is acting on full information. Tex. Prop. Code Ann. § 114.005; Austin Tr. Co. as Tr. of Bob & Elizabeth Lanier Descendants Trs. for Robert Clayton Lanier, Jr. v. Houren, 664 S.W.3d 35, 47, 50, 53 (Tex. 2023) (citing Trust Code
29 Mary Sue also stated in her affidavit that she talked to James about the
withdrawal and that he consented to the withdrawal, and unlike her affidavit
statements regarding Claude’s consent, this assertion is one that is capable of being
controverted by James. However, Mary Sue’s affidavit does not establish James’s
consent as a matter of law. Although the affidavit stated that James consented to her
withdrawing $100,000 for Rachel, it does not provide enough details to establish that
James knew all the material facts that Mary Sue knew of her plan or that he agreed to
leave the details to her discretion. Thus, even if James cannot succeed on a claim for a
breach of a duty because James consented to that breach, the affidavit is insufficient
to establish his consent as a matter of law. See id.; see also Tex. Prop. Code Ann.
§ 114.005. The Trustees provided no other evidence establishing James’s consent as a
matter of law.
Additionally, the Trustees did not negate the existence of damages. The
evidence is undisputed that Mary Sue returned $100,000, plus interest, to the Trust
account. However, James’s evidence established a prima facie case that $1,378.70 in
trading fees were incurred in raising the $100,000, and the Trustees produced no
evidence that Mary Sue had deposited $1,378.70 to make up for those trading fees. If
Mary Sue’s actions constituted a breach of duty, then the assessment of those trading
and noting that a beneficiary may not hold a trustee liable for the consequences of the trustee’s breach of duty when the beneficiary consented to the act with full knowledge of all the material facts that the trustee knew, i.e., when the beneficiary is informed enough to understand the nature and consequences of what he or she is releasing).
30 fees were a direct result of that breach, and consequently, the Trustees did not
establish as a matter of law that Mary Sue’s alleged breach of fiduciary duty had not
caused any damages. Accordingly, the trial court did not abuse its discretion by
denying the TCPA motion as to the claim that Mary Sue breached her fiduciary duty
by withdrawing money from the Trust for Rachel.
The Trustees did not negate as a matter of law the breach-of-fiduciary-duty
claim against Mary Sue relating to the withdrawal of funds. Accordingly, the trial court
did not abuse its discretion by not dismissing that claim against her.
V. Attorney’s Fees
In his appellee’s brief, James argues that attorney’s fees for the Trustees
“should never be considered by this Court or the Trial Court” because any attorney’s
fees incurred by the Trustees were “neither reasonable nor necessary.” However, we
have held that the trial court should have granted the Trustees’ TCPA motion as to all
of James’s claims except the claim against Mary Sue based on her
$100,000 withdrawal, and an award of reasonable attorney’s fees and costs incurred in
defending against a legal action is mandatory when a court orders dismissal of the
legal action under the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). We
therefore reject James’s argument that the trial court cannot consider attorney’s fees
on remand.
31 Conclusion
Having sustained in part and overruled in part the Trustees’ sole issue, we
dismiss all of James’s claims against Virginia and all of his claims against Mary Sue
except for the breach-of-fiduciary-duty claim against her based on her withdrawing
funds from the Trust. We remand this case to the trial court for further proceedings
consistent with this opinion.
/s/ Mike Wallach Mike Wallach Justice
Delivered: March 14, 2024