ACCEPTED 04-14-00751-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/1/2015 2:41:33 PM KEITH HOTTLE CLERK NO. 04–14–00751–CV
IN THE COURT OF APPEALS FILED IN FOR THE FOURTH DISTRICT OF TEXAS4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 07/1/2015 2:41:33 PM KEITH E. HOTTLE Clerk JOSEFINA ALEXANDER GONZALEZ, ET AL,
Appellants,
v.
RAYMOND S. DE LEON II, ET AL,
Appellees. __________________________________________________________________
APPELLEE RAYMOND S. DE LEON’S RESPONSE TO APPELLANTS’ POST–SUBMISSION BRIEF
JUDITH R. BLAKEWAY State Bar No. 02434400 Judith.Blakeway@strasburger.com JAMES MAVERICK MCNEEL State Bar No. 24035491 James.McNeel@strasburger.com LAURA C. MASON State Bar No. 24028227 Laura.Mason@strasburger.com 2301 Broadway San Antonio, Texas 78215 Telephone: (210) 250-6000 Facsimile: (210) 250-6100
ATTORNEYS FOR APPELLEE RAYMOND S. DE LEON II, TRUSTEE
1887483.1/SPSA/26517/0102/070115 Argument
There are two independent reasons supporting the trial court's dismissal of
Appellants’ trust administration claims. First, Appellants have no standing to assert
trust administration claims because they are not “affected by the administration” of
the Family Trust. Second, the trial court correctly dismissed the trust administration
claims because Webb County Court at Law No. 2 had acquired dominant
jurisdiction. Appellants never address the second basis. Thus, even if they had
standing to bring trust administration claims––which is not conceded––the trial
court correctly dismissed those claims because of the prior pending action in County
Court at Law No. 2. Because either reason is a sufficient basis to affirm the trial
court’s dismissal of the trust administration claims, it is not necessary for this Court
to reach the issue of standing.
If the Court nevertheless decides to address the trust administration standing
issue, Appellants had no standing to assert trust administration claims. Appellants
were not affected by De Leon’s status as a limited partner in limited partnerships
which they control by virtue of their control over the limited liability company that
is the general partner of the partnerships. And they had no standing under the
statute attached to their post submission brief, Texas Property Code Section
112.054. Under Section 112.054, standing is limited to a trustee or beneficiary (“on
the petition of a trustee or beneficiary a court may order that the trustee be changed,
1887483.1/SPSA/26517/0102/070115 2 that the terms of the trust be modified. . . .”) TEX. PROP. CODE §112.054(a). So the
trial court correctly ruled that Appellants lacked standing.
Management v. appointment. Appellants disclaim any intent to control the
successor trustee, but they want to control who can become their partner because
they want to maintain control of the partnerships. They want to assure that whoever
is appointed will not interfere with their management of the partnerships.
Voting interest. Appellants claim that they are affected by the trustee’s
appointment because the trust has enough votes to prevent the other partners from
amending or terminating the partnership agreements. This is a spurious argument.
Because they are in control, they have no desire to amend or terminate the
partnerships. This is like saying, “the rich as well as the poor have the right to sleep
under bridges.” True, but why would they want to?
Moreover, that the trust has a vote as a limited partner is insufficient to confer
standing on other partners to challenge appointment of the trustee. Appellants have
an interest in the partnership; they have no interest––pecuniary or otherwise––in the
trust. Their purported interest in the trust is even more attenuated than the interests
found insufficient in the cases cited at Appellee’s Brief pp. 13–14. If those parties
do not have standing to sue, then neither do Appellants.
Standing v. merits. It is ironic that Appellants base their claim to standing on
their duty to see that the trust’s intent and partnership purposes are fulfilled. The
very reason that Appellees sued is because Rocio Guerra and her children, the only
1887483.1/SPSA/26517/0102/070115 3 descendants of settlors Delfina and Josefina, and the intended beneficiaries of their
bounty, have not received pro rata distributions from partnerships, of which they
own 90 percent.
It is also ironic that Appellants now make a distinction between standing and
merits, when their whole argument is premised on the assumption that De Leon’s
appointment was void, which addresses the merits, which the trial court never
reached because it found Appellants did not have standing.
Appellants also claim that they had standing because they were ordered to
produce books and records, which their partner indisputedly had a right to examine.
If their theory of standing were correct, any entity subpoenaed to produce records
pertaining to a trust––for example, financial institutions or accounting firms––would
have standing to challenge a trustee’s appointment. Standing is not that broad.
Effect of appointment. Finally, Appellants claim that they have standing
because of the relief sought in the trustee’s derivative action. It is apparent that
Appellants’ real interest is not only in controlling the process by which the trustee is
selected, but also controlling the trustee himself, so that they can continue to use the
partnerships for their own benefit, depriving the intended beneficiaries of their
inheritance.
None of this is to say that Appellants are without recourse. But their recourse
is not to challenge the process by which the trustee was appointed but to bring their
trust administration claims in Webb County Court at Law No. 2, where the district
1887483.1/SPSA/26517/0102/070115 4 court properly ordered that these claims be pursued. Allowing Appellants to bypass
that court would circumvent the rulings of the county court, interfering with the
jurisdiction of the court having dominant jurisdiction.
Conclusion
The trial court correctly sustained the plea to the jurisdiction that Appellants
lacked standing, ordered that trust administration claims must be brought in the
pending actions in Webb County Court No. 2 and dismissed the remaining claims.
Those orders should be affirmed.
1887483.1/SPSA/26517/0102/070115 5 Respectfully submitted,
STRASBURGER & PRICE, LLP
By: /s/ Judith R. Blakeway JUDITH R. BLAKEWAY State Bar No. 12434400 JAMES MAVERICK MCNEEL State Bar No. 24035491 LAURA C. MASON State Bar No. 24028227 2301 Broadway San Antonio, Texas 78215 Telephone: (210) 250-6000 Facsimile: (210) 250-6100
ATTORNEYS FOR APPELLEE RAYMOND S. DE LEON, II, TRUSTEE OF THE DELFINA & JOSEFINA ALEXANDER FAMILY TRUST
CERTIFICATE OF COMPLIANCE
In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this
Response to Appellants’ Post–Submission Brief contains no more than 827 words.
/s/ Judith R. Blakeway Judith R. Blakeway
1887483.1/SPSA/26517/0102/070115 6 CERTIFICATE OF SERVICE
Pursuant to E-Filing Standing Order, I certify that on July 1, 2015, I electronically filed the foregoing with the Clerk of Court using the EFile.TXCourts.gov electronic filing system which will send notification of such filing to the following:
Robinson C. Ramsey Jeffrey T. Knebel State Bar No. 16523700 State Bar No.
Free access — add to your briefcase to read the full text and ask questions with AI
ACCEPTED 04-14-00751-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/1/2015 2:41:33 PM KEITH HOTTLE CLERK NO. 04–14–00751–CV
IN THE COURT OF APPEALS FILED IN FOR THE FOURTH DISTRICT OF TEXAS4th COURT OF APPEALS SAN ANTONIO, TEXAS SAN ANTONIO, TEXAS 07/1/2015 2:41:33 PM KEITH E. HOTTLE Clerk JOSEFINA ALEXANDER GONZALEZ, ET AL,
Appellants,
v.
RAYMOND S. DE LEON II, ET AL,
Appellees. __________________________________________________________________
APPELLEE RAYMOND S. DE LEON’S RESPONSE TO APPELLANTS’ POST–SUBMISSION BRIEF
JUDITH R. BLAKEWAY State Bar No. 02434400 Judith.Blakeway@strasburger.com JAMES MAVERICK MCNEEL State Bar No. 24035491 James.McNeel@strasburger.com LAURA C. MASON State Bar No. 24028227 Laura.Mason@strasburger.com 2301 Broadway San Antonio, Texas 78215 Telephone: (210) 250-6000 Facsimile: (210) 250-6100
ATTORNEYS FOR APPELLEE RAYMOND S. DE LEON II, TRUSTEE
1887483.1/SPSA/26517/0102/070115 Argument
There are two independent reasons supporting the trial court's dismissal of
Appellants’ trust administration claims. First, Appellants have no standing to assert
trust administration claims because they are not “affected by the administration” of
the Family Trust. Second, the trial court correctly dismissed the trust administration
claims because Webb County Court at Law No. 2 had acquired dominant
jurisdiction. Appellants never address the second basis. Thus, even if they had
standing to bring trust administration claims––which is not conceded––the trial
court correctly dismissed those claims because of the prior pending action in County
Court at Law No. 2. Because either reason is a sufficient basis to affirm the trial
court’s dismissal of the trust administration claims, it is not necessary for this Court
to reach the issue of standing.
If the Court nevertheless decides to address the trust administration standing
issue, Appellants had no standing to assert trust administration claims. Appellants
were not affected by De Leon’s status as a limited partner in limited partnerships
which they control by virtue of their control over the limited liability company that
is the general partner of the partnerships. And they had no standing under the
statute attached to their post submission brief, Texas Property Code Section
112.054. Under Section 112.054, standing is limited to a trustee or beneficiary (“on
the petition of a trustee or beneficiary a court may order that the trustee be changed,
1887483.1/SPSA/26517/0102/070115 2 that the terms of the trust be modified. . . .”) TEX. PROP. CODE §112.054(a). So the
trial court correctly ruled that Appellants lacked standing.
Management v. appointment. Appellants disclaim any intent to control the
successor trustee, but they want to control who can become their partner because
they want to maintain control of the partnerships. They want to assure that whoever
is appointed will not interfere with their management of the partnerships.
Voting interest. Appellants claim that they are affected by the trustee’s
appointment because the trust has enough votes to prevent the other partners from
amending or terminating the partnership agreements. This is a spurious argument.
Because they are in control, they have no desire to amend or terminate the
partnerships. This is like saying, “the rich as well as the poor have the right to sleep
under bridges.” True, but why would they want to?
Moreover, that the trust has a vote as a limited partner is insufficient to confer
standing on other partners to challenge appointment of the trustee. Appellants have
an interest in the partnership; they have no interest––pecuniary or otherwise––in the
trust. Their purported interest in the trust is even more attenuated than the interests
found insufficient in the cases cited at Appellee’s Brief pp. 13–14. If those parties
do not have standing to sue, then neither do Appellants.
Standing v. merits. It is ironic that Appellants base their claim to standing on
their duty to see that the trust’s intent and partnership purposes are fulfilled. The
very reason that Appellees sued is because Rocio Guerra and her children, the only
1887483.1/SPSA/26517/0102/070115 3 descendants of settlors Delfina and Josefina, and the intended beneficiaries of their
bounty, have not received pro rata distributions from partnerships, of which they
own 90 percent.
It is also ironic that Appellants now make a distinction between standing and
merits, when their whole argument is premised on the assumption that De Leon’s
appointment was void, which addresses the merits, which the trial court never
reached because it found Appellants did not have standing.
Appellants also claim that they had standing because they were ordered to
produce books and records, which their partner indisputedly had a right to examine.
If their theory of standing were correct, any entity subpoenaed to produce records
pertaining to a trust––for example, financial institutions or accounting firms––would
have standing to challenge a trustee’s appointment. Standing is not that broad.
Effect of appointment. Finally, Appellants claim that they have standing
because of the relief sought in the trustee’s derivative action. It is apparent that
Appellants’ real interest is not only in controlling the process by which the trustee is
selected, but also controlling the trustee himself, so that they can continue to use the
partnerships for their own benefit, depriving the intended beneficiaries of their
inheritance.
None of this is to say that Appellants are without recourse. But their recourse
is not to challenge the process by which the trustee was appointed but to bring their
trust administration claims in Webb County Court at Law No. 2, where the district
1887483.1/SPSA/26517/0102/070115 4 court properly ordered that these claims be pursued. Allowing Appellants to bypass
that court would circumvent the rulings of the county court, interfering with the
jurisdiction of the court having dominant jurisdiction.
Conclusion
The trial court correctly sustained the plea to the jurisdiction that Appellants
lacked standing, ordered that trust administration claims must be brought in the
pending actions in Webb County Court No. 2 and dismissed the remaining claims.
Those orders should be affirmed.
1887483.1/SPSA/26517/0102/070115 5 Respectfully submitted,
STRASBURGER & PRICE, LLP
By: /s/ Judith R. Blakeway JUDITH R. BLAKEWAY State Bar No. 12434400 JAMES MAVERICK MCNEEL State Bar No. 24035491 LAURA C. MASON State Bar No. 24028227 2301 Broadway San Antonio, Texas 78215 Telephone: (210) 250-6000 Facsimile: (210) 250-6100
ATTORNEYS FOR APPELLEE RAYMOND S. DE LEON, II, TRUSTEE OF THE DELFINA & JOSEFINA ALEXANDER FAMILY TRUST
CERTIFICATE OF COMPLIANCE
In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this
Response to Appellants’ Post–Submission Brief contains no more than 827 words.
/s/ Judith R. Blakeway Judith R. Blakeway
1887483.1/SPSA/26517/0102/070115 6 CERTIFICATE OF SERVICE
Pursuant to E-Filing Standing Order, I certify that on July 1, 2015, I electronically filed the foregoing with the Clerk of Court using the EFile.TXCourts.gov electronic filing system which will send notification of such filing to the following:
Robinson C. Ramsey Jeffrey T. Knebel State Bar No. 16523700 State Bar No. 11589000 rramsey@langleybanack.com Osborne, Helman, Knebel & Scott, LLP Joyce W. Moore 301 Congress Ave., Suite 1910 State Bar No. 14357400 Austin, TX 78701 jwmoore@langleybanack.com Telephone: (512) 542–2015 Paula C. Boston Facsimile: (512) 541–2011 State Bar No. 24089661 jtknebel@ohkslaw.com pboston@langleybanack.com Langley & Banack, Inc. Tom Bassler 745 E. Mulberry, Ste. 900 State Bar No. 01894300 San Antonio, Texas 78212–3166 Thomas G. Bassler, P.C. Telephone: (210) 736–6600 306 W. Sunset, Suite 119 Facsimile: (210) 735–6889 San Antonio, Texas 78209 Attorneys for Appellants Telephone: (210) 836–8885 Facsimile: (210) 826–2236 thomas@basslerlaw.com
Jesus “Jesse” Guillen State Bar No. 24011090 1308 San Augustin Laredo, TX 78040 Telephone: (956) 725–5899 Facsimile: (877) 874–6560 jguillen@guillenlawoffice.com Attorneys for Appellee Rocio Guerra
/s/ Judith R. Blakeway Judith R. Blakeway
1887483.1/SPSA/26517/0102/070115 7