Estate of Shirley L. Benson

ACCEPTED
04-15-00087-CV
FOURTH COURT OF APPEALS
SAN ANTONIO, TEXAS
3/6/2015 7:31:17 PM
KEITH HOTTLE
CLERK

No. 04-15-00087-CV

FILED IN
IN THE COURT OF APPEALS 4th COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS
AT SAN ANTONIO 3/6/2015 7:31:17 PM
KEITH E. HOTTLE
Clerk
ESTATE OF SHIRLEY L. BENSON;
THOMAS MILTON BENSON
AS TRUSTEE OF THE
SHIRLEY L. BENSON TESTAMENTARY TRUST,
Appellant,

v.
RENEE BENSON,
Appellee.

Appeal from Probate Court No. 2, Bexar County, Texas,
Trial Court Cause 155,172 & 155,172-A

BRIEF OF APPELLANT
BECK REDDEN LLP
David J. Beck
State Bar No. 00000070
Russell S. Post
State Bar No. 00797258
rpost@beckredden.com
Troy Ford
State Bar No. 24032181
tford@beckredden.com
Owen J. McGovern
State Bar No. 24092804
omcgovern@beckredden.com
1221 McKinney, Suite 4500
Houston, TX 77010
(713) 951-3700
(713) 951-3720 (Fax)

COUNSEL FOR APPELLANT, THOMAS MILTON BENSON, JR.,
AS TRUSTEE OF THE SHIRLEY L. BENSON TESTAMENTARY TRUST
Oral Argument Requested
 IDENTITY OF PARTIES AND COUNSEL

APPELLANT:

Thomas Milton Benson, Jr., as Trustee of the Shirley L. Benson Testamentary
Trust

COUNSEL FOR APPELLANT ON APPEAL COUNSEL FOR APPELLANT IN THE
AND IN THE TRIAL COURT: TRIAL COURT:

David J. Beck Phillip A. Wittmann
Russell S. Post (Admitted pro hoc vice in probate court)
Troy Ford STONE PIGMAN WALTHER
Owen J. McGovern WITTMANN L.L.C.
BECK REDDEN LLP 546 Carondelet Street
1221 McKinney Street, Suite 4500 New Orleans, Louisiana 70130-3558
Houston, Texas 77010-2010

APPELLEE:

Renee Benson

COUNSEL FOR APPELLEE ON APPEAL AND IN THE TRIAL COURT:

Bennett L. Stahl Harriet O’Neill
CURL STAHL GEIS LAW OFFICE OF HARRIET O’NEILL, P.C.
700 N. St. Mary’s Street, Suite 1800 919 Congress Avenue, Suite 1400
San Antonio, TX 78205 Austin, Texas 78701

Emily Harrison Liljenwall Douglas Alexander
SCHOENBAUM, CURPHY & ALEXANDER, DUBOSE, JEFFERSON &
SCANLAN, P.C. TOWNSEND LLP
112 E. Pecan, Suite 3000 515 Congress Ave., Suite 2350
San Antonio, Texas 78205 Austin, Texas 78701

TRIAL COURT:

Judge Tom Rickhoff
Bexar County Probate Court #2
100 Dolorosa, Room 117
San Antonio, TX 78205-3002

1884.1/557750
 TABLE OF CONTENTS
PAGE

IDENTITY OF PARTIES AND COUNSEL ...........................................................................i

TABLE OF CONTENTS ................................................................................................. ii

TABLE OF AUTHORITIES .............................................................................................. v

STATEMENT OF THE CASE ..........................................................................................ix

STATEMENT REGARDING ORAL ARGUMENT ............................................................... x

ISSUES PRESENTED .....................................................................................................xi
STATEMENT OF FACTS................................................................................................. 1

SUMMARY OF ARGUMENT ........................................................................................... 7

ARGUMENT ................................................................................................................. 9

I. Without evidence of a material breach of trust, neither a
temporary injunction nor a receivership is appropriate. ....................... 9
A. Both temporary injunctions and receiverships require
evidence of a breach of trust. ...................................................... 9

1. To suspend a Trustee, Petitioner must
demonstrate both a material breach of trust and
material financial harm. .................................................... 9

2. Receivership likewise requires a breach of trust. ........... 10

B. No evidence indicates a breach of trust. ................................... 11

1. Lone Star Capital Bank................................................... 13

2. Bensco, Inc. and Uptown Blanco, Ltd. ........................... 15

3. Moving the bookkeeper. ................................................. 16

4. Lack of communication. ................................................. 18

5. Discontinuance of monthly disbursement and
replacement of board of directors. .................................. 19
1884.1/557750 ii
 C. Because there is no evidence of a breach of trust, this
Court should reverse and render a decision denying
Petitioner’s application. ............................................................ 21

II. Neither a temporary injunction nor a receivership can be
defended under the requirements of equity. ........................................ 21
A. Both temporary injunctions and receiverships demand
serious judicial restraint. ........................................................... 22

1. Petitioner must demonstrate irreparable harm to
receive either a temporary injunction or a
receivership. .................................................................... 22

2. Receivership also requires evidence that no less
invasive equitable remedy—such as a
temporary injunction—is adequate................................. 24

B. Petitioner’s failure to show any irreparable harm is
fatal to both her temporary injunction and receivership
claims. ....................................................................................... 25

1. Petitioner has presented no evidence of “harm.” ........... 25

2. Petitioner presented no evidence that her
alleged injuries were “irreparable.” ................................ 26

C. Even if Petitioner demonstrated irreparable harm, the
temporary injunction and receivership are overbroad
and unnecessarily intrusive. ...................................................... 29

III. The trial court’s Orders are facially flawed and void. ........................ 31
A. Lack of notice............................................................................ 33

1. Mr. Benson never received notice or a hearing
on Petitioner’s application to appoint receivers
or its subsequent amendments to that Order. ................... 34

2. Mr. Benson never received notice of the grounds
for Petitioner’s application to appoint receivers. ............. 35

1884.1/557750 iii
 3. The trial court’s continued ad hoc alteration of
its Order denies Mr. Benson notice of its basis
and the ability to effectively be heard on his
objections. ....................................................................... 36

B. The Second Amended Order is facially void. ........................... 38

PRAYER ..................................................................................................................... 41

CERTIFICATE OF SERVICE .......................................................................................... 42

CERTIFICATE OF COMPLIANCE .................................................................................. 43

APPENDIX
Order Suspending Trustee & Appointing Temporary Co-
Receivers with Restrictions (CR 67 – 83) ...............................................Tab A
Addendum to Order (CR 84 – 88) ........................................................... Tab B
Amended Order Granting Injunction, Suspending Trustee &
Appointing Limited Temporary Co-Receivers with Restrictions
(CR 98 – 109) .......................................................................................... Tab C
Second Amended Order Granting Injunction, Suspending
Trustee & Appointing Limited Temporary Co-Receivers with
Restrictions (Supp CR 4 – 17) .................................................................Tab D
Notice of Accelerated Interlocutory Appeal (CR 110 – 112) ................. Tab E
(Amended) Notice of Accelerated Interlocutory Appeal
(2 Supp CR _1) ......................................................................................... Tab F
Second Amended Notice of Accelerated Interlocutory Appeal
(2 Supp CR _) ..........................................................................................Tab G
Last Will and Testament of Shirley L. Benson (PX1) ............................Tab H

1
The Second Supplement to the Clerk’s Record has been requested has not yet been filed.

1884.1/557750 iv
 TABLE OF AUTHORITIES

CASE PAGE(S)

Alpert v. Riley,
274 S.W.3d 277 (Tex. App.—Houston
[1st Dist.] 2008, pet. denied)............................................................................... 19

Ballenger v. Ballenger,
694 S.W.2d 72 (Tex. App.—Corpus Christi
1985, no writ) ...................................................................................................... 28

Benefield v. State,
266 S.W.3d 25 (Tex. App.—Houston
[1st Dist.] 2008, no pet.) .....................................................................9, 21, 24, 27

Chapa v. Chapa,
04-12-00519-CV, 2012 WL 6728242
(Tex. App.—San Antonio Dec. 28, 2012, no pet.) ............................................. 24
Coastal Transp. Co. v. Crown Cent. Petroleum Corp.,
136 S.W.3d 227 (Tex. 2004) .............................................................................. 20
Cunningham v. Parkdale Bank,
660 S.W.2d 810 (Tex. 1983) .............................................................................. 33

Di Portanova v. Monroe,
229 S.W.3d 324 (Tex. App.—Houston
[1st Dist.] 2006, pet. denied)...................................................................13, 19, 20
Easton v. Brasch,
277 S.W.3d 558 (Tex. App.—Houston
[1st Dist.] 2009, no pet.) ..................................................................................... 11

Elliott v. Weatherman,
396 S.W.3d 224 (Tex. App.—Austin
2013, no pet.) ....................................................................... 23, 24, 29, 33, 34, 35

Fortis Benefits v. Cantu,
234 S.W.3d 642 (Tex. 2007) .............................................................................. 11

1884.1/557750 v
Frequent Flyer Depot, Inc. v. Am. Airlines, Inc.,
281 S.W.3d 215 (Tex. App.—Fort Worth
2009, pet. denied)................................................................................................ 10

Gonzales v. Tex. Employment Com’n,
653 S.W.2d 308 (Tex. App.—San Antonio
1983), writ refused NRE (Dec. 14, 1983) .....................................................33, 34

Hughes v. Marshall Nat. Bank,
538 S.W.2d 820 (Tex. Civ. App.—Tyler
1976), writ dismissed w.o.j.) ........................................................................16, 33

Indep. Am. Sav. Ass’n v. Preston 117 Joint Venture,
753 S.W.2d 749 (Tex. App.—Dallas
1988, no writ) ...................................................................................................... 24

Int’l Broth. of Elec. Workers Local Union 479
v. Becon Const. Co., Inc.,
104 S.W.3d 239 (Tex. App.—Beaumont
2003, no pet.) ...................................................................................................... 39
Intercont’l Terminals Co., LLC
v. Vopak N. Am., Inc.,
354 S.W.3d 887 (Tex. App.—Houston
[1st Dist.] 2011, no pet.) ....................................................................................... 9
InterFirst Bank San Felipe, N.A. v. Paz Const. Co.,
715 S.W.2d 640 (Tex. 1986) .............................................................................. 38

Jones v. Blume,
196 S.W.3d 440 (Tex. App.—Dallas
2006, pet. denied)................................................................................................ 12
Khaledi v. H.K. Global Trading, Ltd.,
126 S.W.3d 273 (Tex. App.—San Antonio
2003, no pet.) .................................................................................................. 9, 22
Lagos v. Plano Econ. Dev. Bd., Inc.,
378 S.W.3d 647 (Tex. App.—Dallas
2012, no pet.) ................................................................................................23, 29
Loftin v. Martin,
776 S.W.2d 145 (Tex. 1989) .............................................................................. 33

1884.1/557750 vi
Markel v. World Flight, Inc.,
938 S.W.2d 74 (Tex. App.—San Antonio
1996, no writ) ................................................................................................25, 26

Mueller v. Beamalloy, Inc.,
994 S.W.2d 855 (Tex. App.—Houston
[1st Dist.] 1999, no pet.) ..................................................................................... 11

Ritchie v. Rupe,
443 S.W.3d 856 (Tex. 2014) .............................................................................. 11

Sw. Research Inst. v. Keraplast Technologies, Ltd.,
103 S.W.3d 478 (Tex. App.—San Antonio
2003, no pet.) ...................................................................................................... 23
Tom James Co. v. Mendrop,
819 S.W.2d 251 (Tex. App.—Fort Worth
1991, no writ) ...................................................................................................... 22
In re Toyota Motor Sales, U.S.A.,
407 S.W.3d 746 (Tex. 2013) .............................................................................. 33
Tuma v. Kerr County,
336 S.W.3d 277 (Tex. App.—San Antonio
2010, no pet.) ................................................................................................38, 39
Twyman v. Twyman,
01-08-00904-CV, 2009 WL 2050979
(Tex. App.—Houston [1st Dist.]
July 16, 2009, no pet.)......................................................................................... 22

Univ. Interscholastic League v. Torres,
616 S.W.2d 355 (Tex. Civ. App.—San Antonio
1981, no writ) ................................................................................................38, 39

Walker v. Packer,
827 S.W.2d 833 (Tex. 1992) .............................................................................. 27
Williams v. Dep’t of Criminal Justice-Institutional Div.,
04-03-00774-CV, 2004 WL 28660
(Tex. App.—San Antonio Jan. 7, 2004, pet. denied) ......................................... 25

1884.1/557750 vii
STATUTES
Civil Practice and Remedies Code § 64.001(a) ....................................................... 10

Tex. Civ. P. & Rem. Code § 64.001(b) ................................................................... 11

TEX. CIV. PRAC. & REM. CODE 64.203....................................................................... 3

TEX. PROP. CODE
§ 113.051............................................................................................................. 12
§ 113.082............................................................................................................. 10
§ 113.082(a)(1) ................................................................................................... 11
§ 113.151............................................................................................................. 18
§ 114.001(b) ........................................................................................................ 15
§ 114.001(c) ........................................................................................................ 27
§ 114.008(a)(3) ................................................................................................... 28
§ 114.008(a)(5) ................................................................................................... 11

RULES
TEX. R. CIV. P.
680....................................................................................................................... 31
682....................................................................................................................... 11
683.................................................................................................................23, 38
695a ....................................................................................................................... 3

OTHER AUTHORITIES
65 Am. Jur. 2d Receivers § 10 ................................................................................. 24
BLACK’S LAW DICTIONARY 976 (6th ed. 1990) ....................................................... 12
Ken Belson,
A Messy Family Battle for New Orleans Teams,
N.Y. TIMES, Mar. 6, 2015 ..................................................................................... 7

RESTATEMENT (SECOND) OF TRUSTS § 173 cmt. d. .................................................. 18
RESTATEMENT (THIRD) OF TRUSTS § 37 cmt. e. .................................................12, 18

1884.1/557750 viii
 STATEMENT OF THE CASE

Nature of the case Petitioner filed a petition seeking (1) removal of
her father as trustee of a trust in which she is a
beneficiary and (2) naming herself in his place.

Course of proceedings Upon filing her petition, Petitioner sought a
temporary restraining order—ex parte—which the
trial court granted. CR 23-27. At the subsequent
hearing on the temporary injunction, the trial court
announced sua sponte that it would appoint two
receivers rather than issue a temporary injunction.

Trial Court’s Disposition The trial court signed an order appointing receivers
on February 9, 2015. Tab A. The order said
nothing about injunctive relief.

In addition, the court signed an Addendum to that
order providing further background. Tab B. Not
long thereafter—and without notice or further
hearing—the court signed an amended order,
expanding the scope of relief by adding a
temporary injunction to the prior receivership
order. Tab C.

Appellant, Mr. Benson, filed timely notices of
appeal from both of these orders. Tab E & F. He
then filed a motion to expedite the appeal with this
Court and noted some irregularities with the case.
In response—again without notice—the trial court
signed yet another amended order. Tab D. Mr.
Benson again filed a timely notice of appeal. Tab
G.

1884.1/557750 ix
 STATEMENT REGARDING ORAL ARGUMENT

This case urgently needs an expedited decision. Appellant welcomes the

opportunity to present oral argument if it will be helpful to the Court and will assist

in expediting the decision of this accelerated appeal, and in that event, his counsel

stands ready to appear for oral argument at the Court’s convenience.

That said, the trial court’s errors can be readily identified based on the briefs,

and time is of the essence. Appellant has not sought to stay the order under review

because he does not wish to divert the resources of the Court to collateral matters;

instead, he filed a motion to expedite this appeal in order to secure complete relief

as quickly as possible and minimize the damage that is done to the Trust each day.

For the same reason, the Court may determine that oral argument is unnecessary.

Appellant entrusts that decision to the Court’s discretion and stands ready to assist

the Court as necessary.

1884.1/557750 x
 ISSUES PRESENTED

1. Did the trial court abuse its discretion by failing to require evidence
supporting a breach of trust, as required to grant either a temporary
injunction or receivership?
2. Did the trial court abuse its discretion by failing to require evidence of
irreparable harm and failing to consider less-intrusive remedies, as required
to grant either a temporary injunction or receivership?
3. Did the trial court abuse its discretion by (a) failing to provide notice and an
opportunity to be heard before appointing a receiver, or (b) failing to state
the reasons it found lesser-remedies inadequate, as required by Texas Rule
of Civil Procedure 683?

1884.1/557750 xi
 STATEMENT OF FACTS

This litigation started off as a simple trustee removal case. A daughter,

Petitioner Renee Benson, was unhappy with her father, Thomas Milton Benson, Jr.

The only thing unusual was the amount at stake. Mr. Benson is the trustee of the

Shirley L. Benson Testamentary Trust (“Trust”), which according to his daughter

has “substantial” assets. 1 CR 9. The daughter, who is one of the beneficiaries of

the Trust, filed a petition alleging vague fears that someday, something might

happen to damage the Trust. She sought to remove her father as trustee and to give

herself control of all its assets. 1 CR 5-21.

But things quickly got off track. Although the facts in the Original Petition

indicated—at the very most—minor and easily remedied oversights, 1 CR 9-12,

the trial court signed an expansive ex parte TRO suspending Mr. Benson from

taking any actions related to the Trust he has administered competently and loyally

for almost 35 years. 1 CR 23-27.

Later, the trial court held an evidentiary hearing on Petitioner’s request for a

temporary injunction. 3 RR 5-303; 4 RR 5-178. Following the hearing, however,

the trial court did not grant a temporary injunction as Petitioner requested. Rather,

believing the appointment of a receiver was “a lesser restrictive option,” 5 RR 14,

than a narrowly tailored injunction, the trial court announced—for the first time—

that it would be appointing two receivers to “assist” Mr. Benson as the Trustee,

preventing him from taking on “more than he can bear.” 1 Supp. CR 16-17.
1884.1/557750
 This announcement was made without any notice that the trial court was

considering such a drastic remedy; without any argument, briefing, or presentation

of evidence on the issue; and without reference to the applicable principles of law.

Making matters worse, the trial court declined to state any reasons for its decision

to grant relief that had never been requested or discussed. 4 RR 168-69.

Ever since this sudden, unexpected announcement, the litigation has lost all

semblance of due process. The trial court has continued to dribble out various

additions and amendments to the order with tweaks here and clarifications there—

trying to salvage an order that never should have been signed in the first place.

Because this situation is so unusual, Mr. Benson will detail the various orders.

I. The Original Order

On Monday, February 9, 2015, after the evidence closed in the hearing on

the temporary injunction, the parties reconvened to discuss the order the trial court

planned to sign implementing the relief he had described on the preceding Friday.

Mr. Benson objected to the proposed order, arguing that it was unwarranted, much

broader than had been anticipated, and unnecessary to address the asserted harms.

5 RR 17. The trial court overruled these objections and signed an order styled the

“Order Suspending Trustee & Appointing Temporary Co-Receivers with

Restrictions.” CR 77 (“Original Order”). It said nothing about injunctive relief.

1884.1/557750 2
 The trial court added an “Addendum” to the order. CR 84. This Addendum

purported to explain the appointment of the receivers. But it did not address the

basic requirements for such an appointment. For example, there was no

explanation why a lesser remedy would not work. Mr. Benson appealed. CR 110.

The newly-appointed Co-Receivers went quickly to work on their tasks—

without even waiting until their bonds and the applicant’s bond had been posted,

which were conditions precedent to their appointment under the Original Order.

See CR 78; TEX. CIV. PRAC. & REM. CODE 64.203; TEX. R. CIV. P. 695a. Before

long, the Co-Receivers sent the trial court a letter asking him to expand their

powers to reach additional assets.

II. The Amended Original Order
Without notice to Mr. Benson or an opportunity to be heard on this request,

the trial court amended the Original Order. CR 98. But the trial court did not

content itself with granting the Co-Receivers additional powers. It took the

opportunity to expand the scope of the relief awarded, responding to Mr. Benson’s

objections at the previous hearing by adding a temporary injunction to the prior

receivership order. Further, it expanded their power, granting them discretion “to

determine the extent of co-ownership with assets held by others or other entities

not before the court.” CR 100. This order, restyled as an “Amended Order

Granting Injunction, Suspending Trustee, and Appointing Limited Temporary Co-

Receivers with Restrictions”—(“Amended Order”)—inserted language granting

1884.1/557750 3
injunctive relief, but failed to include the requirements of Texas Rules of Civil

Procedure 683 and 684.

Mr. Benson filed an amended notice of appeal to challenge this Amended

Order. CR 113. He also filed a motion to expedite the appeal in this Court.

In that motion, Mr. Benson noted the irregularities associated with this case

and the Amended Order’s failure to meet the requirements of Rules 683 and 684.

This Court declined to expedite the appeal, but ordered the record to be filed

without any extensions and instructed the parties to prosecute the appeal promptly.

III. The Second Amended Original Order

Recognizing the problems with the Amended Order, Petitioner responded by

submitting yet another amended order to the trial court in an effort to cure its

errors. 2 Supp. CR _.2 Mindful of what had already taken place, Mr. Benson sent

the trial court a letter emphasizing that he should have “an opportunity to be heard

before any further action is taken in this matter.” 2 Supp. CR _. The trial court

denied Mr. Benson that opportunity. Later that day—March 2, 2015—the trial

court responded by once again amending its Order, restyled as the “Second

Amended Order Granting Injunction, Suspending Trustee, and Appointing Limited

Temporary Co-Receivers with Restrictions.” 1 Supp. CR 4. Once again, Mr.

Benson had no opportunity to be heard.

2
The Second Supplement to the Clerk’s Record has been requested but has not yet been filed.

1884.1/557750 4
 Mr. Benson filed an amended notice of appeal. 2 Supp. CR _.

***
Because this controversy concerns the control of a trust, a bit of background

on the Trust is in order. Shirley L. Benson—wife of Trustee Thomas Benson and

mother of Petitioner Renee Benson—died in November 1980. Petitioner is the

only surviving child of Mr. and Mrs. Benson.

Mrs. Benson’s will transferred her residuary estate into a testamentary trust

(“Trust”) and named Mr. Benson as Trustee. Tab H. The Trust names Mr.

Benson as the income beneficiary during his life, with the remainder passing to

their children upon his death. Under the trial court’s March 10, 2000 Judgment

Modifying Trust and Life Estate, Petitioner was named current permissible

principal beneficiary and a remainder beneficiary of the Trust. The other

remainder beneficiaries are The Rita Mae LeBlanc Irrevocable Trust of 1991, The

Ryan Joseph LeBlanc Irrevocable Trust of 1991, and The Dawn Marie Benson

Irrevocable Trust of 1991.

The Trust’s assets consist of interests in real property, businesses, and cash.

Of particular relevance to this case are:

 The Trust owns a non-controlling interest in Bensco, Inc. Bensco, Inc., is a
Texas corporation whose wholly-owned subsidiaries include three Texas and
two Louisiana automobile dealerships. 3 RR 161. Bensco pays certain fees to
Renson Enterprises, which is wholly-owned by Petitioner. 3 RR 134. The
Trust owns one share less than fifty percent of Bensco. The Trust does not have
a controlling interest in Bensco. 3 RR 133.

1884.1/557750 5
 The Trust owns a 97% interest in Lone Star Capital Bank. 3 RR 49. Lone
Star Capital Bank was formed in 2003 as a result of the merger of two banks. It
specializes in banking products and services for entrepreneurs, small and
medium sized businesses, executives, professionals, and real estate investors.
 The Trust holds several million dollars in cash. The Trust holds less than $5
million in accounts at Frost Bank in San Antonio. 3 RR 78.
 The Trust owns other real estate. The Trust owns real estate interests in
Louisiana and Texas. 3 RR 161.
 The Trust owns a 99% interest in Uptown Blanco, Ltd. Uptown Blanco,
Ltd. was founded at Petitioner’s urging for the purpose of purchasing,
renovating, and renting buildings in Blanco, Texas. 3 RR 161. The venture has
not been financially successful. Uptown Blanco, Ltd. has a legal identity
separate from the Trust and is managed by its 1% general partner—an entity
that is 100% owned by Petitioner, not the Trustee. Of the $20.7 million the
Trust has invested in Uptown Blanco, the vast majority of those funds have
been loaned to the Trust from Mr. Benson. 4 RR 31.
In his 35 years as Trustee, Mr. Benson has diligently managed the Trust in

the best interests of its beneficiaries. The Trust grants Mr. Benson sole discretion

over the distribution of Trust principal. 3 RR 212.

Mr. Benson utilizes the assistance of accountants, bookkeepers, and business

advisors to manage the affairs of the Trust. Petitioner has never alleged that Mr.

Benson improperly removed or utilized Trust assets, destroyed Trust records,

purposely caused a decrease in the Trust’s value, or otherwise committed a breach

of trust. And even though he is the income beneficiary of the Trust—as well as

Trustee—he has never taken an income disbursement or management fee out of the

Trust; in fact, Mr. Benson is personally owed over $17 million from the Trust. 3

RR 231; 4 RR 31.

1884.1/557750 6
 SUMMARY OF ARGUMENT
The dispute between Mr. Benson and his daughter has received considerable

attention and even attracted national news coverage. See Ken Belson, A Messy

Family Battle for New Orleans Teams, N.Y. TIMES, Mar. 6, 2015,

http://www.nytimes.com/2015/03/07/sports/football/tom-benson-saints-owner-and-

heirs-are-locked-in-an-inheritance-dispute.html. This high-profile case should be

subject to the same rules and laws as any other case, but that has not been the

experience so far. To the contrary, Mr. Benson’s experience in the trial court has

been highly irregular.

Following the close of evidence at a two-day hearing on Petitioner’s request for

a temporary injunction, the court announced—for the first time—that it would be

appointing a receiver to “assist” Mr. Benson in his duties as Trustee, thereby

preventing him from taking-on “more than he can bear.” 1 Supp. CR 16-17. And

turning Texas law on its head, the trial court suggested that the appointment of a

receiver would be “a lesser restrictive option” than a narrowly-tailored temporary

injunction. 5 RR 14.

The court’s announcement was made without notice that the trial court was

considering such a drastic remedy; without argument, briefing, or the presentation

of evidence on that issue; and without reference to the principles of law governing

such an action. The parties have been dealing with the fallout of that sudden

announcement ever since.
1884.1/557750 7
 The trial court has issued three orders since the hearing on Petitioner’s

application for temporary injunction. The most recent order, styled the “Second

Amended Order Granting Injunction, Suspending Trustee, and Appointing Limited

Temporary Co-Receivers with Restrictions,” 1 Supp. CR 4, constitutes an abuse of

discretion for three reasons. First, it fails to require that Petitioner meet her burden

to present evidence of a breach of trust. Second, it fails to require evidence of an

irreparable harm and the inadequacy of less-intrusive remedies. Third, the Second

Amended Order was issued following a series of repeated violations of Mr.

Benson’s right to notice and due process, and it is void for failure to comply with the

mandatory requirements of Texas Rule of Civil Procedure 683.

1884.1/557750 8
 ARGUMENT

I. Without evidence of a material breach of trust, neither a temporary
injunction nor a receivership is appropriate.

Temporary injunctions and receiverships are both “extraordinary remedies,”

and neither issues as a matter of right. Khaledi v. H.K. Global Trading, Ltd., 126

S.W.3d 273, 279-80 (Tex. App.—San Antonio 2003, no pet.) (“A temporary

injunction is an extraordinary remedy and does not issue as a matter of right.”);

Benefield v. State, 266 S.W.3d 25, 31 (Tex. App.—Houston [1st Dist.] 2008, no

pet.) (“The appointment of a receiver . . . is a harsh, drastic, and extraordinary

remedy, to be used cautiously.”). As such, Petitioner bears the burden of proof and

must provide evidence supporting each element of her claims to these

extraordinary forms of relief. Intercont’l Terminals Co., LLC v. Vopak N. Am.,

Inc., 354 S.W.3d 887, 891 (Tex. App.—Houston [1st Dist.] 2011, no pet.);

Benefield, 266 S.W.3d at 32 (“The burden of proof to show the existence of

circumstances justifying the appointment of a receiver rests on the party seeking

the appointment.”).

A. Both temporary injunctions and receiverships require evidence of
a breach of trust.

1. To suspend a Trustee, Petitioner must demonstrate both a
material breach of trust and material financial harm.

To obtain a temporary injunction, Petitioner must establish a “probable right

to recovery” on her cause of action: Removal of Trustee under Texas Property

1884.1/557750 9
Code, § 113.082. “A probable right of recovery is shown by alleging a cause of

action and presenting evidence tending to sustain it.” Frequent Flyer Depot, Inc. v.

Am. Airlines, Inc., 281 S.W.3d 215, 220 (Tex. App.—Fort Worth 2009, pet.

denied).

Section 113.082(a)(1) provides that a trustee may be removed if: “the trustee

materially violated or attempted to violate the terms of the trust and the violation or

attempted violation results in a material financial loss to the trust.” TEX. PROP.

CODE § 113.082.3 Thus, to obtain a temporary injunction, Petitioner must present

evidence tending to sustain the allegation that Mr. Benson materially violated or

attempted to materially violate the terms of the trust and that his violation or

attempted violation resulted in material financial loss. Granting a temporary

injunction without evidence of both elements would be an abuse of discretion.

2. Receivership likewise requires a breach of trust.

The statutory authorization for appointing a receiver is Section 114.008 of

the Texas Property Code, which lists available “Remedies for Breach of Trust.”

Under Section 114.008,4 a court may “appoint a receiver to take possession of the

3
The trial court explicitly declined to find Mr. Benson incapacitated. 4 RR 167; 1 Supp. CR 16.
Further, the other potential grounds for removal—failure “to make an accounting that is required
by law or by the terms of the trust” and “other cause for removal”—were neither argued by
Petitioner nor addressed in the trial court’s Addendum.
4
The trial court also purports to justify its ruling under Civil Practice and Remedies Code
§ 64.001(a). But there was no notice of this basis for receivership. Petitioner’s pleadings fail to
even mention § 64.001(a), much less present argument or evidence supporting its elements.
(footnote continued on next page)

1884.1/557750 10
trust property and administer the trust” if it finds that “a breach of trust has

occurred or might occur.” TEX. PROP. CODE § 114.008(a)(5). To remove the

Trustee under § 114.008, Petitioner must prove that Mr. Benson “materially

violated or attempted to violate the terms of the trust and the violation or attempted

violation results in a material financial loss to the trust.” TEX. PROP. CODE

§ 113.082(a)(1) (emphasis added); see also TEX. PROP. CODE § 114.008(a)(7)

(incorporating TEX. PROP. CODE § 113.082). She failed to do either.

B. No evidence indicates a breach of trust.

To obtain either a temporary injunction or a receivership, Petitioner must

present evidence demonstrating that Mr. Benson committed or attempted to

Accordingly, this provision cannot support the trial court’s ruling. TEX. R. CIV. P. 682 (“No writ
of injunction shall be granted unless the applicant therefore shall present his petition to the judge
verified by his affidavit and containing a plain and intelligible statement of the grounds for such
relief.”) (emphasis added); see also Easton v. Brasch, 277 S.W.3d 558, 560 (Tex. App.—
Houston [1st Dist.] 2009, no pet.) (“We hold the trial court abused its discretion by granting
injunctive relief to Brasch, who never pleaded for injunctive relief.”).

Second, the Property Code provides a specific grant of authority to appoint a receiver over trust
assets. See TEX. PROP. CODE § 114.008(a)(5). As the Supreme Court recently emphasized,
courts should not disrupt such comprehensive statutory schemes. See Ritchie v. Rupe, 443
S.W.3d 856, 880 (Tex. 2014) (“When the Legislature has enacted a comprehensive statutory
scheme, we will refrain from imposing additional claims or procedures that may upset the
Legislature’s careful balance of policies and interests.”). Accordingly, the trial court had no
authority to appoint a receiver under the broad, catch-all provisions of § 64.001 when there is a
specific statute that controls. See Mueller v. Beamalloy, Inc., 994 S.W.2d 855, 861 (Tex. App.—
Houston [1st Dist.] 1999, no pet.). “Equity follows the law.” Fortis Benefits v. Cantu, 234
S.W.3d 642, 648 (Tex. 2007). It does not rewrite it.

Finally, even if § 64.001 were applicable, Petitioner has not met her burden of demonstrating that
the Trust property is “in danger of being lost, removed, or materially injured.” TEX. CIV. PRAC.
& REM. CODE § 64.001(b). See infra Part II.B.

1884.1/557750 11
commit a material breach of trust and that his breach resulted in material financial

loss. The “terms of the trust” include a fiduciary’s common law duties. TEX.

PROP. CODE § 113.051.

Although the trial court found that Mr. Benson committed a breach of trust,

it failed to identify either (1) which duty Mr. Benson allegedly breached or (2) how

Mr. Benson breached that duty. Indeed, the evidence presented at the hearing

offered no legally sufficient evidence of a past or potential material breach of trust.

“Material” events are defined as “important” events that “hav[e] influence or

effect.” BLACK’S LAW DICTIONARY 976 (6th ed. 1990). This language reflects the

general rule that “[n]ot every breach of trust warrants removal of the trustee.”

RESTATEMENT (THIRD) OF TRUSTS § 37 cmt. e. Only “gross or continued

inadequacies” might warrant judicial intervention on matters of trustee

performance. Id.

The trial court’s Addendum and Petitioner’s application cite five events—(1)

transferring funds out of Lone Star Capital Bank, (2) refusing to a make payment

owed by Bensco, Inc.—not the Trust—and a discretionary payment supporting

Uptown Blanco, Ltd. from Trust assets, (3) moving the bookkeeper, (4) Mr.

Benson’s unwillingness to meet with Petitioner, and (5) his discontinuance of

discretionary Trust disbursements and his decision to replace members of Lone Star

Capital Bank’s board of directors—as grounds for finding a breach of trust.

1884.1/557750 12
However, the evidence presented at the hearing provided no legally sufficient

evidence of a material breach of trust, a potential breach of trust, or material

financial loss to the Trust or its beneficiaries. The trial court therefore abused its

discretion in imposing a temporary injunction and appointing the Co-Receivers.

1. Lone Star Capital Bank.

On January 7, 2015, Mr. Benson transferred approximately $20 million of

his personal assets—as well as $4.7 million of Trust cash—from Lone Star Capital

Bank to Frost National Bank. 3 RR 78. The trial court’s Addendum notes this

withdrawal, and then chastises Mr. Benson for failing to “return[] all the funds.” 1

Supp. CR 16. Nowhere, however, does the trial court explain why Mr. Benson

should return the funds or which fiduciary duty he may have breached. Without a

breach of a recognized duty, the trial court cannot substitute its discretion for that

of the Trustee. Di Portanova v. Monroe, 229 S.W.3d 324, 330 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied) (“A court cannot substitute its discretion for

that of a trustee, and can interfere with the exercise of discretionary powers only in

cases of fraud, misconduct, or clear abuse of discretion.”).

Even accepting only the evidence supporting Petitioner’s position, she failed

as a matter of law to prove a material breach or potential breach of trust. To begin

with, it is uncontested that the transferred funds remain in the possession of the

Trust. They have not been dissipated or misallocated; they have simply been

1884.1/557750 13
transferred to a different financial institution. The Trustee has no duty to keep

Trust funds in a specific bank account, so it cannot be a breach of trust to transfer

the funds to a different bank.

Further, Petitioner has not presented any affirmative evidence suggesting

that there was any harm to the Trust or its assets, much less the “material financial

loss” required for a breach of trust. At the hearing, Tom Roddy (Chairman of the

Board of Lone Star Capital Bank) testified that there was nothing illegal about

moving either Trust or personal funds to Frost National Bank, 3 RR 119, and—

most importantly—that the transaction had no impact on the book value of Lone

Star, 3 RR 122. He also testified that only $4.7 million of the $25 million Mr.

Benson transferred to another bank actually belonged to the Trust. 3 RR 78. This

means that the transferred Trust assets only accounted for approximately 2% of the

Bank’s total deposits, not the 12% stated in the trial court’s Addendum. 1 Supp.

CR 13. These facts are not evidence of any breach, much less a material breach, or

material financial loss of any type to the Trust.

Without some factual basis tending to establish both a breach of trust and a

material financial loss, the trial court had an insufficient basis for its ruling. The

evidence in this record conclusively establishes that the conduct in question—

moving assets from one financial institution to another respected and fully-

capitalized financial institution (Frost National Bank)—is not a breach of trust as a

1884.1/557750 14
matter of law. Trustees are free to exercise business judgment, and these decisions

about Trust assets are protected by the business judgment rule. See TEX. PROP.

CODE § 114.001(b).

2. Bensco, Inc. and Uptown Blanco, Ltd.

The record also conclusively establishes that Mr. Benson did not breach any

fiduciary duties by failing to pay certain expenses for Bensco, Inc. and Uptown

Blanco, Ltd. At the hearing, Petitioner acknowledged that the Trust does not own

Bensco’s airplane and that Bensco—not the Trust—is responsible for paying

Renson Enterprises’ management fee.5 3 RR 272-73. Mary Polenski, the

bookkeeper for the Trust, also testified that Uptown Blanco is responsible for

paying its own property insurance, and then seeks reimbursement from the Trust.

4 RR 26. These facts establish as a matter of law that Mr. Benson—as Trustee—

had no duty to pay any of these bills. Without a duty, there can be no breach of

trust.

Nor is there any evidence suggesting that failure to pay these bills was

material to the Trust, or that non-payment caused material financial loss. The

whole point of including a materiality requirement in the statute is to eliminate

hyper-technical grievances about immaterial events as grounds for removing a

5
Renson Enterprises is owned by Petitioner and provides management services to Bensco, Inc.
3 RR 65. It does not provide any services to the Trust—which owns only a minority position in
Bensco, Inc.—and is not owned or operated by the Trust.

1884.1/557750 15
Trustee. Mr. Benson’s one-time failure to make discretionary payments on behalf

of Uptown Blanco is not a “gross or continued inadequac[y]” in Mr. Benson’s

performance as Trustee, and is insufficient as a matter of law to support a finding

that Mr. Benson has committed a material breach of trust, or that these acts caused

material financial loss to the Trust.

3. Moving the bookkeeper.

In December 2014, Mr. Benson requested that his personal bookkeeper—

Mary Polenski—leave her office at Renson Enterprises and relocate to another

location. Petitioner alleges that this action constitutes a breach of trust, but

provides no evidence demonstrating either a duty to locate the bookkeeper at

Renson or material harm resulting to the Trust from that action.

Nothing in the record indicates that Mr. Benson breached his duties to keep

accurate records, provide an accounting, or provide material information. Mary

Polenski testified that (1) the Trust records are being maintained as always, (2) no

records have been destroyed, and (3) no one has requested Trust information since

the relocation of her previous office at Renson Enterprises. 4 RR 28-30. Absent

evidence of destruction of records or the intent to do so, ordering a temporary

injunction to protect those records is inappropriate. See Hughes v. Marshall Nat.

Bank, 538 S.W.2d 820, 824 (Tex. Civ. App.—Tyler 1976, writ dismissed w.o.j.)

(“[W]e fail to perceive how this evidence could constitute any evidence showing

1884.1/557750 16
the books and records were in danger of being lost, removed or materially

damaged.”). Moreover, Ms. Polenski’s testimony conclusively disproved any

allegation that she is “unreachable.” 4 RR 53 (playing voicemail received from

Tom Roddy after Mary relocated offices).

The trial court concluded that Mr. Benson’s decision to relocate the Trust’s

bookkeeper “breached the relationship of trust that existed over the life of this only

parent trustee and only child beneficiary.” 1 Supp. CR 14. But Texas law does not

recognize a fiduciary duty of “trust” between a father and a child—certainly not

one that depends on the physical location of the father’s bookkeeper—and such a

relationship cannot serve as grounds for removing Mr. Benson as Trustee.

As with her other claims, Petitioner failed to present legally sufficient

evidence of a material breach of trust or material harm to the Trust from Mr.

Benson’s actions. Petitioner’s evidence did not identify any breach of duty

regarding the Trust records, and there is no evidence that asking Mary Polenski to

change her location has in any way interfered with the administration of the Trust

or caused material financial loss to its assets or beneficiaries. 4 RR 28-30. This

claim would not support judicial intervention without “repeat or flagrant”

misconduct by the Trustee. RESTATEMENT (THIRD) OF TRUSTS § 37 cmt. e. There

was no such evidence.

1884.1/557750 17
 4. Lack of communication.

As Trustee, Mr. Benson has a duty to communicate certain information to

the Trust’s beneficiaries. Under § 113.151, “[a] beneficiary by written demand

may request the trustee to deliver to each beneficiary of the trust a written

statement of accounts covering all transactions since the last accounting or since

the creation of the trust, whichever is later.” TEX. PROP. CODE § 113.151. This

obligation is not unlimited, however, and “the trustee is not obligated or required to

account to the beneficiaries of a trust more frequently than once every 12 months.”

Id. Similarly, while the Trustee must communicate all material facts affecting the

beneficiary’s rights, “the trustee is not under a duty to the beneficiary to furnish

information to him in the absence of a request for such information.”

RESTATEMENT (SECOND) OF TRUSTS § 173 cmt. d.

Petitioner did not present—and the trial court did not cite—any evidence of

a “written demand” for an accounting, a request for material information, or a

refusal by Mr. Benson to provide any information required by his duties. Instead,

the trial court cites Mr. Benson’s statement that “I want no contact with any of

you” and chides him for failing “to explain his statements.” 1 Supp. CR 14, 16.

Rather than establish a duty and demonstrate a breach, the trial court asserts that

Mr. Benson’s statement “is most contrary to the evident intention of the settlers

[sic] of the trust at the time it was established.” 1 Supp. CR 14. However,

1884.1/557750 18
Petitioner has presented no evidence of the “settlor’s intent,” and has cited no

provision of the Trust agreement imposing a duty to maintain social interaction

with the beneficiaries. Absent a duty, there can be no breach, and Mr. Benson’s

desire to avoid social interaction with the beneficiaries is not grounds for removal.

5. Discontinuance of monthly disbursement and replacement
of board of directors.

Finally, Mr. Benson’s decisions to (1) discontinue Petitioner’s $10,000

monthly disbursement from the Trust and (2) remove Petitioner, Tom Roddy, and

others from Lone Star’s board of directors were unquestionably within his

discretion as Trustee. 3 RR 212. Petitioner has no right to receive a monthly

disbursement, as “[u]nder a discretionary trust, the beneficiary is entitled only to

the income or principal that the trustee, in his discretion, shall distribute to the

beneficiary.” Di Portanova v. Monroe, 229 S.W.3d 324, 330 (Tex. App.—

Houston [1st Dist.] 2006, pet. denied). And as Mr. Roddy admits, neither he,

Petitioner, nor anyone else has a right to serve on Lone Star’s board of directors or

to manage any aspect of Trust assets. 3 RR 132, 133. These rights are reserved to

the Trustee. See Alpert v. Riley, 274 S.W.3d 277, 291 (Tex. App.—Houston [1st

Dist.] 2008, pet. denied) (“Once a settlor completes a transfer of assets to a trust,

the beneficiaries gain beneficial title and the trustee gains sole legal title in, and

exclusive control over, the trust property, subject to the trust instrument.”)

(emphasis added).

1884.1/557750 19
 Because principal distributions and trust administration are the exclusive

province of the Trustee, “[a] court cannot substitute its discretion for that of a

trustee, and can interfere with the exercise of discretionary powers only in cases of

fraud, misconduct, or clear abuse of discretion.” Di Portanova, 229 S.W.3d at

330. Petitioner presented no evidence demonstrating either a material breach of

duty or a material financial loss to the Trust as a result of these actions. The only

rationale cited by the trial court was (1) potential Lone Star Bank customer concern

and (2) potential damage from failing to assure “major interested parties”—such as

employees like Mr. Roddy—of the Trust’s continued “stability and calmness.”6

However, there was no testimony demonstrating customer concern at the hearing;

the trial court appears to have inferred this rationale from Mr. Roddy’s testimony.

3 RR 291. However, had Mr. Roddy testified that customers might be concerned

about the withdrawal, that would not constitute evidence to support this motion, as

opinion testimony speculating on how employees and customers will react is not

evidence. See Coastal Transp. Co. v. Crown Cent. Petroleum Corp., 136 S.W.3d

227, 232 (Tex. 2004) (“[O]pinion testimony that is conclusory or speculative is not

relevant evidence, because it does not tend to make the existence of a material fact

more probable or less probable.”).

6
The trial court notes with alarm that Mr. Roddy “resigned duties while on the stand.” 1 Supp.
CR 16. However, Mr. Roddy resigned as Trustee of Renson’s 401(k) account—not Lone Star
Bank—which has never managed any of the Trust’s assets. 3 RR 116.

1884.1/557750 20
 Because Petitioner failed to present any evidence demonstrating (1) a

material breach of trust and (2) a material financial loss to the Trust, the trial court

abused its discretion in appointing receivers, granting her application for a

temporary injunction, and suspending Mr. Benson from his duties as Trustee.

C. Because there is no evidence of a breach of trust, this Court
should reverse and render a decision denying Petitioner’s
application.

Absent any evidence demonstrating a breach of trust, it is an abuse of

discretion to grant either a temporary injunction or receivership. In re Toyota

Motor Sales, U.S.A., 407 S.W.3d 746, 759-61 (Tex. 2013); Loftin v. Martin, 776

S.W.2d 145, 148 (Tex. 1989). Given the complete lack of evidence to support

Petitioner’s burden, Mr. Benson respectfully requests that this Court reverse the

trial court’s order and render judgment on Petitioner’s pleadings for a temporary

injunction and a receivership.

II. Neither a temporary injunction nor a receivership can be defended
under the requirements of equity.

As “extraordinary” equitable remedies, temporary injunctions and

receiverships are only appropriate when (1) the premises for the remedy exist and

(2) the requirements for equitable relief are satisfied. Petitioner has not established

a breach of trust, and has presented no evidence demonstrating that less intrusive

remedies are inadequate. Without evidence demonstrating the inadequacy of lesser

remedies, it is an abuse of discretion to grant either a temporary injunction or

1884.1/557750 21
appoint a receiver. See, e.g., Benefield, 266 S.W.3d at 32 (“because remedies at

law were not even considered, they could not have been deemed ‘inadequate’ as

required by” Texas law).

A. Both temporary injunctions and receiverships demand serious
judicial restraint.

Courts must be judicious in exercising their power to impose temporary

injunctions, and even more so when appointing receivers. These are remedies of

last resort, and may only be imposed if the movant demonstrates (1) irreparable

harm and (2) that less restrictive remedies are inadequate to protect its interests.

1. Petitioner must demonstrate irreparable harm to receive
either a temporary injunction or a receivership.

To obtain a temporary injunction, Petitioner must establish “a probable,

imminent, and irreparable injury in the interim if the injunction is not granted.”

Khaledi v. H.K. Global Trading, Ltd., 126 S.W.3d 273, 280 (Tex. App.—San

Antonio 2003, no pet.). An irreparable injury is one for which there is no adequate

remedy at law—i.e., that “cannot be adequately compensated in damages or . . . the

damages cannot be measured by any certain pecuniary standard.” Twyman v.

Twyman, 01-08-00904-CV, 2009 WL 2050979, at *4 (Tex. App.—Houston [1st

Dist.] July 16, 2009, no pet.); Tom James Co. v. Mendrop, 819 S.W.2d 251, 253

(Tex. App.—Fort Worth 1991, no writ) (“An injunction will not issue if damages

are sufficient to compensate the plaintiff for any wrong committed by the

defendant and if the damages are subject to measurement by an ascertainable
1884.1/557750 22
pecuniary standard.”). Irreparable injury is also a pre-requisite for appointing a

receiver.7

To be valid, “[a]n injunction should be broad enough to prevent a repetition

of the ‘evil’ sought to be corrected, but not so broad as to enjoin a defendant from

lawful activities.” Lagos v. Plano Econ. Dev. Bd., Inc., 378 S.W.3d 647, 650 (Tex.

App.—Dallas 2012, no pet.). Petitioner must present evidence demonstrating the

need for “both the kind of relief granted and the specific restrictions” imposed. Id.

Thus, an injunction “must not be framed so broadly as to prohibit the enjoyment of

lawful rights.” Sw. Research Inst. v. Keraplast Technologies, Ltd., 103 S.W.3d

478, 482 (Tex. App.—San Antonio 2003, no pet.). Rather, it “must be specific in

its terms and describe in reasonable detail the act or acts to be restrained.” Id.

(citing TEX. R. CIV. P. 683). Failure to properly limit the scope of a temporary

injunction is an abuse of discretion requiring modification or vacatur. Id. at 483.

Thus, a temporary injunction is only valid if (1) there is no adequate remedy

at law and (2) a less-invasive injunction would be inadequate.

7
“A trial court should not appoint a receiver if another remedy exists at law or in equity that is
adequate and complete.” Elliott v. Weatherman, 396 S.W.3d 224, 228 (Tex. App.—Austin 2013,
no pet.) (emphasis added)

1884.1/557750 23
 2. Receivership also requires evidence that no less invasive
equitable remedy—such as a temporary injunction—is
adequate.

The true remedy of last resort—which courts consider “extraordinarily

harsh” and are “particularly loathe to utilize”—is receivership. Indep. Am. Sav.

Ass’n v. Preston 117 Joint Venture, 753 S.W.2d 749, 750 (Tex. App.—Dallas

1988, no writ). This reluctance “stems from the understanding that the power to

appoint a receiver is in derogation of a fundamental property right of a legal owner

to possession and enjoyment of his or her property.” 65 Am. Jur. 2d Receivers § 10.

Receivership not only requires a showing of irreparable harm, but also proof

that less-invasive equitable remedies would be inadequate. Chapa v. Chapa, 04-

12-00519-CV, 2012 WL 6728242, at *6 (Tex. App.—San Antonio Dec. 28, 2012,

no pet.) (“As an extraordinary remedy, appointment of a receiver must be based on

evidence showing an immediate risk of harm, and that there is no other lesser

remedy at law or in equity.”); Elliott, 396 S.W.3d at 228 (“A trial court should not

appoint a receiver if another remedy exists at law or in equity that is adequate and

complete.”); Benefield, 266 S.W.3d at 32-33.

Because a temporary injunction is another remedy “in equity,” a receivership

is only appropriate if (1) no adequate legal remedy exists and (2) a temporary

1884.1/557750 24
injunction is inadequate to protect movant’s rights.8 And since neither a temporary

injunction nor receivership is appropriate if a less-invasive remedy exists, Petitioner

must present evidence demonstrating the inadequacy of (1) legal remedies and (2)

lesser injunctive relief. She has done neither.

B. Petitioner’s failure to show any irreparable harm is fatal to both
her temporary injunction and receivership claims.

1. Petitioner has presented no evidence of “harm.”

As an initial matter, Petitioner has not presented any evidence of “harm” to

the Trust. See supra Part I.B. No assets have been removed from the Trust, the

Trust documents are being maintained as always, and the book value of Lone Star

Capital Bank has not decreased. 3 RR 122.

Further, “[a] party’s fear and apprehension that another party might take or

do certain actions are not sufficient to establish injury.” Williams v. Dep’t of

Criminal Justice-Institutional Div., 04-03-00774-CV, 2004 WL 28660, at *1 (Tex.

App.—San Antonio Jan. 7, 2004, pet. denied) (citing Markel v. World Flight, Inc.,

938 S.W.2d 74, 79–80 (Tex. App.—San Antonio 1996, no writ)). Such testimony

“is not sufficient to establish any injury, let alone ‘irreparable’ injury.” Markel,

938 S.W.2d at 80. The trial court’s unfounded assertion that Mr. Benson’s

8
The trial court disagrees, casting receivership as a kindly, intermediate measure to “assist” Mr.
Benson in his duties by preventing him from taking-on “more than he can bear.” 1 Supp. CR 16-
17. It also misunderstands the drastic nature of receivership, referring to it as “a lesser restrictive
option” than a narrowly tailored injunction. 5 RR 14.

1884.1/557750 25
decision to transfer funds from Lone Star to Frost National Bank “impaired the

bank’s functions and could cause other depositors concern”9 is patently insufficient

and entirely speculative, as is its statement that “[t]he court was left to wonder

whether this was a rational fear and where the funds would go next.” 1 Supp. CR

13-14. Petitioner has the burden to provide “evidence of a concrete and

imminently threatened injury.” Int’l Ass’n of Firefighters, 554 S.W.2d at 817

(emphasis added). Petitioner presented no evidence suggesting either depositor

concern or the probability of additional movement of Trust assets. Depositors’

hypothetical concerns and the trial court’s “wonder” and “concern” over “where

the funds would go next” are “not sufficient to establish any injury, let alone

‘irreparable’ injury.” Markel, 938 S.W.2d at 80 (emphasis added).

2. Petitioner presented no evidence that her alleged injuries
were “irreparable.”
The trial court abused its discretion by failing to require that Petitioner

demonstrate that her harm was “irreparable.” This failure is readily apparent from

the trial court’s own statement of the applicable law, to wit:

It is sufficient to consider only the trustee’s actions and statements
and whether they damaged the trust.
1 Supp. CR 16.

9
Whether Lone Star’s functionality was “impaired” is only relevant if it decreases the value of
the bank. And even if evidence established that the bank’s value has decreased—which it does
not—that evidence would be irrelevant at this point because the bank is not for sale.

1884.1/557750 26
 That is incorrect. As discussed, the inadequacy of other legal relief is a

requirement for either a temporary injunction or a receivership. Because “[a] trial

court has no ‘discretion’ in determining what the law is or applying the law to the

facts,” Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992), it was an abuse of

discretion to grant Petitioner’s relief without considering whether her harm was

irreparable. See Benefield, 266 S.W.3d at 32 (“because remedies at law were not

even considered, they could not have been deemed ‘inadequate’ as required by”

Texas law).

The trial court’s Addendum does not consider the existence of legal

remedies, and Petitioner presented no evidence suggesting their inadequacy.

However, the existence of legally adequate remedies is clear from the text of the

Texas Property Code itself. Texas Property Code, § 114.001(c) provides that “[a]

trustee who commits a breach of trust is chargeable with any damages resulting

from such breach of trust, including but not limited to: (1) any loss or depreciation

in value of the trust estate as a result of the breach of trust; (2) any profit made by

the trustee through the breach of trust; or (3) any profit that would have accrued to

the trust estate if there had been no breach of trust.” TEX. PROP. CODE

§ 114.001(c). Furthermore, § 114.008(a) of the Texas Property Code—the very

section Petitioner relies upon for her Trustee removal claim—specifically provides

that any breach of trust may be remedied by “compel[ling] the trustee to redress a

1884.1/557750 27
breach of trust, including compelling the trustee to pay money or to restore

property.” TEX. PROP. CODE § 114.008(a)(3) (emphasis added). Because an

irreparable harm is one that “cannot be adequately compensated in damages,” and

any perceived losses from Mr. Benson’s alleged breach of trust are recoverable as

damages, the alleged harm is not irreparable and therefore cannot form the basis

for a temporary injunction.

Absent some alternative reason that damages are unavailable, such as the

Trustee’s insolvency, the availability of damages is fatal to Petitioner’s requests for

both a temporary injunction and receivership. However, she has presented no

evidence that Mr. Benson would be incapable of responding in damages for any

breach of trust he might commit. See Ballenger v. Ballenger, 694 S.W.2d 72, 77-

78 (Tex. App.—Corpus Christi 1985, no writ) (“The record shows that appellants

are solvent and capable of responding in damages for any wrongful acts which

appellants may be held to have committed against appellee. Therefore, even if all

of the facts alleged by appellee in his petition for injunctive relief are ultimately

found to be true by the trier of facts, the granting of the temporary injunction

constituted an abuse of the discretionary power of the trial court.”).

Faced with the clear text of the Texas Property Code authorizing damages

for a breach of trust, it was an abuse of discretion to grant Petitioner’s temporary

1884.1/557750 28
injunction without any evidence demonstrating that Petitioner’s asserted harm was

irreparable.

C. Even if Petitioner demonstrated irreparable harm, the temporary
injunction and receivership are overbroad and unnecessarily
intrusive.

If this Court finds that Petitioner has no adequate remedy at law, she still

failed to demonstrate that a less intrusive injunction would be inadequate to protect

Petitioner’s interests. See Elliott, 396 S.W.3d at 228 (“[A] trial court should not

appoint a receiver if another remedy exists at law or in equity that is adequate and

complete.”) (emphasis added). As with monetary damages, no evidence was

presented on lesser remedies at the hearing, and the trial court did not address that

issue in its Addendum.

Petitioner’s alleged harms are not wide-ranging; they are narrow complaints

about Mr. Benson’s conduct that could be easily remedied by a narrow temporary

injunction. Rather than follow the mandate that “[a]n injunction should be broad

enough to prevent a repetition of the ‘evil’ sought to be corrected, but not so broad

as to enjoin a defendant from lawful activities,” Lagos, 378 S.W.3d at 650, the trial

court ordered the complete suspension of Mr. Benson as Trustee, and then took the

even more drastic action of appointing two Co-Receivers to manage the Trust in

his place. Petitioner has presented no evidence to justify either the relief granted or

the scope of these restrictions. See id.

1884.1/557750 29
 Had the trial court engaged in the proper analysis, it would have found less-

invasive, adequate alternatives. Consider Lone Star Capital Bank. If the trial court

was concerned that Mr. Benson’s actions might constitute a breach of trust, a

simple injunction requiring that Mr. Benson (1) return the withdrawn Trust funds

and (2) refrain from replacing the board of directors pending litigation would

certainly be sufficient to prevent those harms to the Bank or its brand. It would put

hypothetically concerned depositors at ease, assure potentially worried employees,

and protect Petitioner’s purported right to serve on the board of directors. The

same analysis applies to Mr. Benson’s discretionary distributions to Petitioner,

discretionary payment of bills for Uptown Blanco, and the decision to move Mary

Polenski to a different office. A simple, limited injunction requiring that he

continue to make (1) traditional distributions and payments and (2) return the

Trust’s bookkeeper to her Renson office—as Petitioner requested in her motion—

would certainly be sufficient to accomplish these goals.

But the trial court did not even consider these remedies. Instead, it jumped

immediately to the most intrusive, most expensive options available. Its failure to

require evidence demonstrating that less invasive legal or injunctive relief would

adequately address Petitioner’s asserted harms was an abuse of discretion.

1884.1/557750 30
III. The trial court’s Orders are facially flawed and void.

From the ex parte TRO that kicked off this litigation through the trial court’s

most recent Order, this case has proceeded in an ad hoc manner that bears no

resemblance to the procedures required under Texas law. See TEX. R. CIV. P. 21(b).

The repeated and flagrant denials of Mr. Benson’s due process right to notice and an

opportunity to be heard have resulted in a facially invalid Order suspending him as

Trustee and exposing the Trust and its beneficiaries to significant and irrevocable

harm.

On January 20, 2015—despite minimal evidence of damage and no

indication that such damage would occur before notice and a hearing 10—the trial

court granted Petitioner’s expansive application for an ex parte TRO, enjoining

Mr. Benson from taking any actions related to the Trust he had administered

competently and loyally for almost 35 years. CR 23-27. The TRO contained a

notice of hearing, which provided:

It is further ORDERED that a hearing on Petitioner’s request for
temporary injunction be and hereby is set for the 4th day of February,
2015, at 9:30 o’clock a.m., in Probate Court No. 2, Bexar County,
Texas.
CR 27.

10
TEX. R. CIV. P. 680 (“No temporary restraining order shall be granted without notice to the
adverse party unless it clearly appears from specific facts shown . . . that immediate and
irreparable injury, loss or damage will result to the applicant before notice can be served and a
hearing had thereon.”) (emphasis added).

1884.1/557750 31
 This was the only notice of hearing contained in the TRO, and the first and

only notice of a hearing received by Mr. Benson in this case.

On February 4th and 5th, Mr. Benson’s attorneys appeared in Bexar County

Probate Court No. 2, as required by the TRO, and presented evidence and

argument opposing the imposition of a temporary injunction. Following the close

of evidence, however, the trial court did not grant or deny a temporary injunction.

Under the mistaken belief that it constituted a “lesser restrictive option,” 5 RR 14,

the trial court announced that it would be appointing two Co-Receivers to “assist”

Mr. Benson in his management of the Trust, thereby preventing him from taking

on “more than he can bear.” 1 Supp. CR. 16-17.

This announcement, made without any notice that the trial court was

considering such a drastic remedy, was only the beginning. Over Mr. Benson’s

constant objections, the trial court has continued to revise and amend its order,

which is now on its third iteration. The most recent order—styled the “Second

Amended Order Granting Injunction, Suspending Trustee, and Appointing Limited

Temporary Co-Receivers with Restrictions”—was made after the trial court received

a letter from Mr. Benson’s counsel specifically requesting that no further

amendments without notice and an opportunity to be heard. 2 Supp. CR _.

1884.1/557750 32
 A. Lack of notice.

Before forfeiting control of the Trust he has administered for nearly 35 years,

Mr. Benson was entitled to notice and a hearing on the appointment of a receiver.

Such notice is required by the traditional rules of equity, the constitutional right to

due process, and Texas Rule of Civil Procedure 21(b). Hughes, 538 S.W.2d at 824

(“[T]he procedure to be followed in the appointment of a receiver is governed by the

rules of equity.”). “Procedural due process ‘requires notice that is reasonably

calculated to inform parties of proceedings which may directly and adversely affect

their legally protected interests.’” Cunningham v. Parkdale Bank, 660 S.W.2d 810,

813 (Tex. 1983). Thus, procedural due process requires not only notice of a hearing

on receivership, but also notice of the grounds for the application. See Gonzales v.

Tex. Employment Com’n, 653 S.W.2d 308, 310 (Tex. App.—San Antonio 1983, writ

refused n.r.e.) (“These basic rights mandate that parties receive ‘adequate notice

detailing the reasons’ giving rise to the hearing so they might have the opportunity to

prepare their side of the controversy.”) (emphasis added). Appointing a receiver

over real property—such as some of the assets contained within the Trust—without

notice constitutes an abuse of discretion. Elliott, 396 S.W.3d at 229

(“[A]ppointment of a receiver over real property without notice is expressly

forbidden.”).

1884.1/557750 33
 1. Mr. Benson never received notice or a hearing on
Petitioner’s application to appoint receivers or its subsequent
amendments to that Order.

Mr. Benson was not given notice that the trial court was considering

appointing the Co-Receivers until after the close of evidence at Petitioner’s

temporary injunction hearing. The Austin Court of Appeals considered this precise

situation in Elliott v. Weatherman. 396 S.W.3d 224, 228 (Tex. App.—Austin 2013,

no pet.). After the close of evidence at petitioner’s hearing to temporarily enjoin the

trustee’s actions, the trial court appointed a receiver to administer certain trust assets.

The Austin court reversed that decision as an abuse of discretion. Finding that the

trustee had only been served notice of a temporary injunction hearing—not a

receivership hearing—the court held that the temporary injunction hearing did not

serve as an adequate substitute for the receivership hearing, as “the record does not

show that his request for receivership was ever separately set for hearing.” Id. at

329. So even though both parties received notice and held a hearing on petitioner’s

application for temporary injunction, it was an abuse of discretion to appoint a

receiver without notice and a hearing on that issue.

As in Elliott, the trial court’s decision to appoint a receiver at the close of the

temporary injunction hearing denied Mr. Benson notice of the fact that the court was

considering Petitioner’s application to appoint a receiver. The only notice served

was for the February 4 hearing on Petitioner’s application for temporary injunction.

That notice made no mention of a hearing on any application to appoint a receiver,
1884.1/557750 34
which is a distinct application requiring distinct notice.11 Similarly, the temporary

injunction hearing itself was not a hearing on the application for a receiver. The

issue of appointing a receiver only arose after the conclusion of evidence on whether

to grant a temporary injunction; no evidence or argument has been presented on

whether to appoint a receiver. Because Mr. Benson never received notice that the

trial court was considering appointing a receiver, it was an abuse of discretion to

appoint a receiver under these circumstances.

2. Mr. Benson never received notice of the grounds for
Petitioner’s application to appoint receivers.

Further, Mr. Benson has been denied notice of the grounds upon which

appointment of a receiver was being considered. Petitioner’s application for a

temporary injunction contained no facts or legal argument urging the trial court to

appoint a receiver, and provided Mr. Benson with no notice of what actions he had

taken that are alleged to justify such a harsh remedy, much less why lesser legal or

equitable remedies would be ineffective. Without such information, Mr. Benson

lacked—and continues to lack—“adequate notice detailing the reasons giving rise to

the hearing,” depriving him of his constitutional right to appear in court and present

his side of the argument. Even today, Mr. Benson has not received: (1) any formal

notice of such an application from Petitioner; (2) any briefing from Petitioner on

11 See Elliott, 396 S.W.3d at 229 (“Weatherman did not make his oral request until after the
close of evidence at the [temporary injunction] hearing, and the record does not show that his
request for receivership was ever separately set for hearing.”).

1884.1/557750 35
why a receivership is required; (3) any evidence demonstrating the need for a

receivership; or (4) any explanation why lesser remedies, such as a limited

injunction or damages, would be insufficient to remedy the minor harms alleged in

Petitioner’s Application.

3. The trial court’s continued ad hoc alteration of its Order
denies Mr. Benson notice of its basis and the ability to
effectively be heard on his objections.

Having suspended Mr. Benson and appointed Co-Receivers over the Trust

without notice, the trial court continually seeks to deny him notice of the basis for its

actions or an opportunity to effectively object to its rulings. Following the

temporary injunction hearing, Mr. Benson objected to the proposed receivership

order, arguing that it was unwarranted, much broader than had been anticipated,

and unnecessary to address the asserted harms. 5 RR 17. The trial court overruled

his objections and issued the Original Order, along with an “Addendum” purporting

to explain the court’s actions. CR 84. However, it failed to provide any notice as to

why a receivership was necessary or why a narrow temporary injunction was

inadequate. It simply appointed the Co-Receivers.

Nine days later—without notice, a hearing, or an explanation—the trial court

issued a new order imposing a temporary injunction. Rather than simply granting

the temporary injunction, this Amended Order—without even waiting for the Co-

Receivers to post their bond—significantly expanded the Co-Receivers’ powers,

1884.1/557750 36
granting them discretion “to determine the extent of co-ownership with assets held

by others or other entities not before the court.” CR 100.

Given the significant expense of the Co-Receivers, Mr. Benson filed a motion

to expedite consideration of this appeal on February 23, 2015. Noting the Amended

Order’s failure to meet the requirements of Rules 683 and 684, Mr. Benson’s motion

called those deficiencies to this Court’s attention. That motion was denied on

February 25, 2015, but this Court noted that no extensions would be granted on the

filing of the record or briefing deadlines.

Recognizing the problems with the Amended Order, Petitioner responded by

submitting yet another amended order to the trial court in an effort to cure its errors.

Mr. Benson sent the court a letter on March 2, 2015, emphasizing that he should

have “an opportunity to be heard before any further action is taken in this matter.” 2

Supp. CR __. But there was no such opportunity. Later that afternoon, the trial

court responded by once again amending its Order, restyled as the “Second

Amended Order Granting Injunction, Suspending Trustee, and Appointing Limited

Temporary Co-Receivers with Restrictions.” 1 Supp. CR 4. Once again, Mr.

Benson had no opportunity to be heard.

The trial court’s continued refusal to provide Mr. Benson with either (1)

notice of the basis for its “extraordinary” and expensive violations of his rights as

Trustee or (2) an opportunity to effectively contest that basis—either at the trial

1884.1/557750 37
court or on appeal—violates his due process rights and his rights under Texas Rule

of Civil Procedure 21(b). He asks this Court to reverse the trial court’s Orders.

B. The Second Amended Order is facially void.

Even as amended, the trial court’s current Order is facially void for failure to

meet the requirements of Texas Rule of Civil Procedure 683, which governs the

form of a temporary injunction. The rule is “mandatory and must be strictly

followed.” InterFirst Bank San Felipe, N.A. v. Paz Const. Co., 715 S.W.2d 640,

641 (Tex. 1986). “Where a temporary injunction is issued and does not conform to

Rule 683, the nonconformity constitutes an abuse of discretion and mandates

reversal.” Univ. Interscholastic League v. Torres, 616 S.W.2d 355, 358 (Tex. Civ.

App.—San Antonio 1981, no writ).

A temporary injunction is void if it fails to “set forth the reasons for its

issuance.” TEX. R. CIV. P. 683. “The Texas Supreme Court has interpreted this

rule to require ‘the order set forth the reasons why the court deems it proper to

issue the writ to prevent injury to the applicant in the interim; that is, the reasons

why the court believes the applicant’s probable right will be endangered if the writ

does not issue.’” Tuma v. Kerr County, 336 S.W.3d 277, 279 (Tex. App.—San

Antonio 2010, no pet.). “Because probable injury subsumes the elements of

irreparable injury and no adequate remedy at law, a valid injunction must articulate

the reasons why the identified probable injury is an irreparable one for which

1884.1/557750 38
applicant[] ha[s] no adequate legal remedy.” Int’l Broth. of Elec. Workers Local

Union 479 v. Becon Const. Co., Inc., 104 S.W.3d 239, 244 (Tex. App.—Beaumont

2003, no pet.). Thus, “the mere recital of ‘no adequate remedy at law’ and

‘irreparable harm’ in the order lacks the specificity required by Rule 683.” Tuma,

336 S.W.3d at 280; Torres, 616 S.W.2d at 358.

The trial court’s most recent Order fails this test. Concerned that neither the

First Amended Order nor the Addendum addressed Rule 683’s requirements, the

trial court amended its First Amended Order to proclaim that:

Petitioner will have no adequate remedy at law, and Petitioner will be
irreparably harmed. The courts [sic] reasons are found in the attached
addendum.
1 Supp. CR 5.

This statement is conclusory, as it merely asserts “no adequate remedy at

law” and that “Petitioner will be irreparably harmed.” Tuma, 336 S.W.3d at 280;

Torres, 616 S.W.2d at 358. It therefore fails to “articulate the reasons why”

Petitioner’s asserted injuries are irreparable, and does nothing to alleviate the First

Amended Order’s deficiency. Nor is that deficiency cured by the statement’s

citation to the Addendum, which is unchanged from the First Amended Order and

contains only the conclusory statement that “[t]he court considered whether, within

the four corners, and the resulting testimony, the court’s ultimate decision, was

compelled and no other.” 1 Supp. CR 13.

1884.1/557750 39
 The closest the Addendum comes to articulating a reason why the Trust is

facing irreparable harm is its statement that “[t]he actions of the trustee will likely

damage the trustee’s local brand significantly over this next year if not reversed

soon and if the major interested parties are not reassured that the previous status

quo obtain [sic] accompanied by stability and calmness.” 1 Supp. CR 16. This

statement does not specify either (1) which actions by Mr. Benson create a harm or

(2) which Trust brand is at risk of harm. But more importantly, this statement is

also conclusory (and wholly unsupported by the evidence). There is no discussion

of why Petitioner’s undefined harm would be irreparable, i.e., why Petitioner has

no adequate remedy at law, and the record demonstrates that legal remedies were

never considered. Absent an articulation of the reasons why the alleged harm is

irreparable, the temporary injunction suspending Mr. Benson—and the

accompanying order appointing Co-Receivers in his absence—is void for failure to

satisfy the mandatory requirements of Rule 683.

1884.1/557750 40
 PRAYER

Appellant Thomas Milton Benson, Jr. respectfully requests that this Court

reverse the trial court’s order and (a) render judgment denying Petitioner a

temporary injunction and a receivership, or (b) alternatively vacate the order and

remand for further proceedings in accordance with this Court’s opinion. Appellant

further requests all relief to which he is entitled in law or in equity.

Respectfully submitted,

BECK REDDEN LLP

By: /s/ David J. Beck
David J. Beck
State Bar No. 00000070
dbeck@beckredden.com
Russell S. Post
State Bar No. 00797258
rpost@beckredden.com
Troy Ford
State Bar No. 24032181
tford@beckredden.com
Owen J. McGovern
State Bar No. 24092804
omcgovern@beckredden.com
1221 McKinney, Suite 4500
Houston, TX 77010
(713) 951-3700
(713) 951-3720 (Fax)

Attorneys for Appellant,
Thomas Milton Benson, Jr., as Trustee
of the Shirley L. Benson Testamentary
Trust

1884.1/557750 41
 CERTIFICATE OF SERVICE

I hereby certify that on March 6, 2014, a true and correct copy of the above
and foregoing Brief of Appellant was forwarded to all counsel of record by the
Electronic Filing Service Provider as follows:

Bennett L. Stahl
CURL STAHL GEIS
700 North St. Mary’s Street, Suite 1800
San Antonio, TX 78205
blstahl@csg-law.com

Emily Harrison Liljenwall
SCHOENBAUM, CURPHY & SCANLAN, P.C.
112 E. Pecan, Suite 3000
San Antonio, TX 78205
eliljenwall@scs-law.com

Harriet O’Neill
LAW OFFICE OF HARRIET O’NEILL, P.C.
919 Congress Avenue, Suite 1400
Austin, TX 78701
honeill@harrietoneilllaw.com

Douglas Alexander
ALEXANDER, DUBOSE, JEFFERSON & TOWNSEND LLP
515 Congress Ave., Suite 2350
Austin, TX 78701
dalexander@adjtlaw.com

Attorneys for Appellee Renee Benson

/s/ David J. Beck
David J. Beck

1884.1/557750 42
 CERTIFICATE OF COMPLIANCE
1. This brief complies with the type-volume limitation of Tex. R. App. P.
9.4 because it contains 9,814 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9.4(i)(2)(B).

2. This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point Times New Roman font.

Dated: March 6, 2015.

/s/ David J. Beck
David J. Beck
Attorney for Appellant
Thomas Milton Benson, Jr., as Trustee
of the Shirley L. Benson Testamentary
Trust

1884.1/557750 43
 No. 04-15-00087-CV

IN THE COURT OF APPEALS
FOR THE FOURTH DISTRICT OF TEXAS
AT SAN ANTONIO

ESTATE OF SHIRLEY L. BENSON;
THOMAS MILTON BENSON
AS TRUSTEE OF THE
SHIRLEY L. BENSON TESTAMENTARY TRUST,
Appellant,
v.
RENEE BENSON,
Appellee.

Appeal from Probate Court No. 2, Bexar County, Texas,
Trial Court Cause 155,172 & 155,172-A

APPENDIX TO BRIEF OF APPELLANT

Tab
A Order Suspending Trustee & Appointing Temporary Co-Receivers with
Restrictions (CR 67 – 83)
B Addendum to Order (CR 84 – 88)
C Amended Order Granting Injunction, Suspending Trustee & Appointing
Limited Temporary Co-Receivers with Restrictions (CR 98 – 109)
D Second Amended Order Granting Injunction, Suspending Trustee &
Appointing Limited Temporary Co-Receivers with Restrictions (Supp CR
4 – 17)
E Notice of Accelerated Interlocutory Appeal
(CR 110 – 112)
F (Amended) Notice of Accelerated Interlocutory Appeal
(2 Supp CR _)
G Second Amended Notice of Accelerated Interlocutory Appeal (2 Supp CR _)
H Last Will and Testament of Shirley L. Benson (PX1)

1884.1/557750
 TAB A
Order Suspending Trustee & Appointing Temporary Co-Receivers
with Restrictions (CR 67 – 83)
 CAUSE NO. 155,572

ESTATE OF § IN THE PROBATE COURT
§
SHIRLEY L. BENSON, § NUMBER TWO
§
DECEASED § BEXAR COUNTY, TEXAS

CAUSE NO. 155,572-A

RENEE BENSON § INTHEPROBATECOURT
§
v. §
§ NUMBER TWO
THOMAS MILTON BENSON, JR., AS §
TRUSTEE OF THE SHIRLEY L. §
BENSON TESTAMENTARY TRUST § BEXAR COUNTY, TEXAS

5821917.3

 .'J 0 2 ' s 0 p l 3 0 q
 ORDER SUSPENDING TRUSTEE &
APPOINTING TEMPORARY CO-RECEIYERS WITH RESTRICTIONS

The Court has considered the request of Renee Benson, Petitioner, for the

appointment of a temporary receiver and for her to serve as substitute trustee as set out in

her Original Petition for Removal of Trustee and Application for Temporary Injunctive

Relief. The court responds with a limited temporary appointment of co-receivers for the

Shirley L. Benson Testamentary Trust (the "Trust). Such appointment is immediately

necessary for purposes of managing and conserving the Trust's property during litigation,

the collateral litigation in Louisiana or until the parties resolve their dispute and a family

trustee qualifies, and the need for court action no longer exists.

The appointment of temporary co-receivers for the Trust's property is

warranted on equitable grounds and under Texas Property Code§ l 14.008(a)(5) and

Texas Civil Practice and Remedies Code§ 64.00l(a). The court realizes and

acknowledges that the trustee has served competently for decades and deserves to know

why the court acted. The court's reasons are found in the addendum attached hereto.

The powers and duties of the Temporary Co - Receivers are set forth in this

Order. To the extent that Petitioner seeks to reqmre the Temporary Co -

receivers to fulfill all duties and responsibilities that trustees owe to beneficiaries

arising under statutory law, common law, or trust instruments, including any fiduciary duties,

such relief is DENIED.

IT IS THEREFORE ORDERED THAT:

This Court assumes exclusive jurisdiction over all assets, momes,

securities, and property (whether real or personal, tangible or intangible) of whatever
5821917.3

 V02150Pl310
 kind and character, wherever located, which directly or indirectly belong to the Trust in

whole or in part ("Receivership Assets"). The Court also assumes exclusive jurisdiction

over all books, records, and other informational and electronic documents that belong to

the Trust or relate in any way to the Receivership Assets ("Receivership Records").

2. Phil Hardberger and Arthur Bayem, residents of San Antonio, Bexar

County, Texas, and citizens and qualified voters of Texas, are hereby appointed Co-

Receivers of the Receivership Assets and Receivership Records (collectively, the
~1.:;:> 'i?v)
"Receivership Estate"). Each shall file a bond in the amount of$. 2{?0; "IT"~ Jc{;nditioned &{> /(...
as provided by law and approved by this Court. The costs of such bonds shall be paid

from the Receivership Estate. However, considering the growing volume of the collateral

litigation, all significant decisions will be presented for court approval so they will share

in the court's judicial immunity. The co-receivers are encouraged not to duplicate work in

separate law firms but reach an agreement on division of duties. /1, ($ urd-er is lvrr~ .er
lo,,Jrt-fOflej, *'e
DY'\ '?e.fi"tt~"Y- R~ee.~e/I.~~" posfiflJV... bi>nJ.. {I\ tt.rt11'dllt" of ~~ooJooD.'!_o.
3. On filing their bonds, together with the oath prescribed by law, the

Receivers are authorized, subject to the control of this Court, to do any and all acts

necessary to the proper and lawful conduct of the Receivership, and to immediately take

and have complete and exclusive control, possession, and custody of the Receivership

Estate and to any assets traceable to the Receivership Estate.

2

5821917.3

 V02150Pl311 '
 4. The Receivers are ordered to well and faithfully perform the duties of their

office; to timely account for all monies, securities, and other properties which may come

into their hands as Receivers; to be compensated for their services on an hourly-fee basis;

to hire professionals, as the Receivers deem necessary or advisable, to provide services to

the Receivers or the Receivership Estate; to file periodic applications for this Court to

approve the payment of their fees and those of any professionals they may hire; and to

abide by and perform all duties set forth in this Order and as required by law.

5. As of the date of the entry of this Order, the Receivers are, subject to the

control of this Court, also specifically directed and authorized to perform the following

acts and duties:

(a) Take possession of the Receivership Estate, insure it against hazards

and risks, and attend to its maintenance.

(b) Manage and direct the business and fmancial affairs of the

Receivership Estate and any entity owned or controlled by the

Receivership Estate (consistent with the proportion of ownership or

control held by the Receivership Estate);

(c) Retain or remove, as the Receivers deem necessary or advisable,

any officer, director, independent contractor, employee or agent

of the Receivership Estate.

(d) Collect, marshal, and take custody, control, and possession of all

assets traceable to the Receivership Estate in whole or in part,

3

5821917.3

 V021SOPl312
 wherever situated, including the income and profit therefrom and all

sums of money now or hereafter due or owing to the Receivership

Estate.

(e) Collect, receive, and take possession of all goods, chattel, rights,

credits, momes, effects, lands, leases, books and records, work

papers, records of account, including computer maintained

information, contracts, financial records, monies on hand in banks

and other financial initiations, and other papers of individuals,

partnerships, or corporations whose interests are now directly or

indirectly held by or under the direction, possession, custody, or

control of the Receivership Estate.

(f) Institute such actions or proceedings to impose a constructive trust,

obtain possession of property or assets, avoid transfers or

obligations, seek damages, and/or recover judgment with respect to

any assets or records that are traceable to the Receivership Estate in

whole or in part or any persons who may have caused an injury to

the Receivership Estate.

(g) Obtain, by presentation of this Order, documents, books, records,

accounts, deposits, testimony, or other information within the

custody or control of any person or entity sufficient to identify

4

5821917.3

 VOZ\SOP\3\3
•.
accounts, properties, liabilities, and causes of action of the

Receivership Estate.

(h) Make such ordinary and necessary transfers, payments, distributions,

and disbursements as the Receivers deem advisable or proper for the

maintenance or preservation of the Receivership Estate.

(i) Perform all acts necessary to conserve, hold, manage, and preserve

the value of the Receivership Estate, in order to prevent any

irreparable loss, damage, and injury to the Estate.

U) Obtain any insurance, including but not limited to errors and omissions

insurance, related to the performance of the Receivers' duties under

this Order, with the costs of such insurance to be paid from the

Receivership Estate.

(k) Enter into such agreements in connection with the administration of

the Receivership Estate, including, but not limited to, the

employment of such managers, agents, custodians, consultants,

investigators, attorneys, and accountants as the Receivers judge

necessary to perform the duties set forth in this Order and to

compensate them from the Receivership Estate. The Receivers are

specifically authorized to hire Cox Smith Matthews Incorporated

and Langley & Bannack, Inc.

5

5821917 .3

 ,\J02150Pl31~,
 (I) Collect and compromise demands, institute, prosecute, compromise,

adjust, intervene in, or become party to such actions or proceedings

in state or federal courts that the Receivers deem necessary and

advisable to preserve the value of the Receivership Estate, or that the

Receivers deem necessary and advisable to carry out the Receivers'

mandate under this Order and any subsequent order and likewise to

defend, compromise, or adjust or otherwise dispose of any or all

actions or proceedings instituted against the Receivership Estate that

the Receivers deem necessary and advisable to carry out the

Receivers' mandate under this Order and any subsequent order.

6. It is further ordered that the Receivers must, within 3/l days of their

qualification, file in this action an inventory of all property of which the Receivers have

taken possession. If the Receivers subsequently identify or come into possession of

additional property, then they shall file a supplemental inventory as soon as practical.

7. The powers and duties of the Temporary Co-Receivers are prescribed by

this Order. Their duties and obligations run to this Court. They are not appointed to serve

as trustees of the Trust and do not, by accepting this appointment, assume fiduciary or

other duties that a trustee would owe to beneficiaries. However, the Receivers may, in the

exercise of their discretion and judgment, respond to requests or other inquiries made by

the parties to this proceeding or beneficiaries of the Trust.

6

5821917.3

 V02150Pl315 ·
...

8. It is further ordered that all persons who receive notice of this Order are

enjoined from taking any actions to transfer, withdraw, conceal or encumber any property

of the Receivership Estate, and shall not take any action to interfere with the Receivers'

exclusive possession of the property of the Receivership Estate. Any such interference

may be punished by contempt.

SIGNED and ENTERED on this the~y ofFebruary, 2015.

7
5821917.3

 .'J021SOPl31b·
 TAB B
Addendum to Order (CR 84 – 88)
...

Addendum to Order

PRELIMINARIES

All preliminary matters were resolved by agreement prior to the hearing primarily
through the courts pre-hearing "Inquiry of the court" and the responses thereto by the parties.
(Appellate exhibits 1, 2 & 3) The parties agreed the court had jurisdiction and venue and that all
notices and services were complete and no party, attorney or the court, had a conflict. The
attorneys representing the trustee were admitted properly by Pro Hae Vice and no recusal or
continuances were requested. Counsel for the trustee objected to media recording. That request
was granted as the Texas Supreme Court rule of one by notice to the clerk was not satisfied.

All counsel were advised of the court's intention to appoint receivers at the conclusion of
the hearing. That notice is required when a receiver is to be appointed over real estate. The
hearing was then continued until Monday, February 9, 2015 at 4:00 p.m. which was selected for
the convenience of the attorneys for the trustee and the court.

ACTION AND ST ATEMENTS OF THE TRUSTEE ADVERSELY AFFECTING THE TRUST

The court considered whether, within the four comers of the initial pleadings, and the
resulting testimony, the court's ultimate decision, was compelled and no other. That is to
temporarily suspend the trustee and temporarily appoint limited-power co-receivers. Significant
actions by the trustee and his few known statements motivating those acts negatively impacted
the trust and were of particular concern though all the acts of the trustee are considered.

The statement, "is my money safe?" made to the banker led to the disconcertingly sudden
withdrawal of the trust funds and the trustees own funds. (The Trustee appeared to express
unnecessary fear considering the harm to the trust that was likely to result). This was 12% of the
banks capitalization and the bank is 97% owned by the trust. The trustee himself had appointed
all the members of the bank's long-term executives and board. There appeared no reason why the
funds would be safer at Frost and there was no evidence that these trust funds are still at Frost
Bank. Both sides presented evidence that this action impaired the banks functions and could

1
 V02150P1311
cause other depositors concern. The court was left to wonder whether this was a rational fear and
where the funds would go next.

"Take the trust and related records, secretly depart, and don't tell the beneficiaries where
you are." This is a paraphrase of the trustee's words as delivered by the trustee's bookkeeper.
Other than insuring that the beneficiaries could not be informed about the trust in the future,
again a sudden departure from the historic trust relationship, this act had no purpose and no
positive for the trust. It breached the relationship of trust that existed over the life of this only
parent trustee and only child beneficiary.

"You are the only person I trust in San Antonio." The dealership General Manager
quoted the trustee. The evidence was that the trustee had trusted relationships with an extensive
array of key managers for many decades. Indeed long-term loyalty was a hallmark of his
business. This statement, provided by the respondent's witness, unexplained by the trustee, along
with the foregoing statements, carries a tone of sudden excessive fear. The court cannot deduce
from the record how this feeling follows from the actions of the beneficiary but no acts of the
daughter would seem to justify this conclusion that all long-term executive associates in San
Antonio are disloyal or involved in a conspiracy.

"l want no contact with any of you ... Sincerely yours" referring specifically to the
beneficiaries. Though drafted by a lawyer friend, only the attorney for the trustee was left to
explain its meaning. His conclusion is an opinion and the statements of his legal team are not
evidence. The trustee, though available, did not appear. The bookkeeper testified she saw him in
San Antonio earlier. This no contact statement is most contrary to the evident intention of the
settlers of the trust at the time it was established. Again, the evidence of the daughter's behavior
that would generate this anger was meager. The questions on cross-examination inferred that her
lack of business acumen disappointed the trustee. However, the trustee is also father. He was
known to revere family, church and friends, and particularly love his only surviving child. It
appears extreme to disclaim all his parental care, a serious life-altering change at his age, when
families celebrate parents and grandparents. Wretched relationships cannot be good for this
trustee who suffered the tragic early loss of two children and two wives. Without apparent cause,
the trustee stopped the $ l 0,000 payments to the beneficiary after decades. The only explanation
offered was he determined she could not function up to his standards as a businesswoman.

2
 V021SOP1318
Apparently he has also fired the beneficiary, her son and daughter and collapsed her business,
Renson, which administered the key car dealerships which are trust property. If he was
disappointed in her business sophistication and he unemployed her, it seems he would continue
payments.

HEALTH

The trustee is 87 Yi years old with a quadruple bypass, numerous recent hospitalizations
and surgeries, macular degeneration, a concussion and other health problems not well established
by the evidence. However, all the direct evidence and all the witnesses agreed; there are
substantial health issues and this trustee does not seem to be improving. "He is not the same"/
"He is the same", all lay opinions, most by witnesses lacking direct contact. There were vague
references to an Internist, Dr. Goldman and a Dr. Harris. It would be hard to find a reported case
with more health issues and less professional analysis. While the court considers only the
evidence from this case, the court is not obligated to ignore four decades of experience, largely in
specialty courts that deal with the vulnerable. Nor should the courts take nothing away from
mandated continuing legal education which most recently featured Lady Astor Regrets and the
Glasser case, cited in this courts "Inquiry." This court has significant experience with the
scenario presented including thousands of open guardianships and has never established or
rejected a permanent guardianship without the testimony of a medical doctor. Without one, the
court finds it impossible to draw accurate conclusions about the trustee's health but the court
need not. The trustee himself confesses that "at my age" the pressures are too much.

This court was without the benefit of witnesses who are at arms-length with the trustee,
like; spouse, doctor, nurse, nutritionist, surgeon, dismissed caregivers, housekeeper, cook,
someone. The trustee appeared only briefly in the media clips. While the court always
maintained the finding on capacity would remain in New Orleans, the forum that is proper and
the litigant's choice, this court cannot disregard the issue of the trustee's fitness to serve.

THE WITNESS

It is unusual that all the witnesses were forthright, deliberate, professional and credible.
More remarkable, they did not conflict on essential facts, i.e. the no contact note, movement of
trust records and money. This is a tribute to the trustee's judgment of character and the settlers

3
 V021SOP131q
parenting skills. But, the remainder of their testimony was opinion and speculation following
questions like "Why do you think the trustee .... ?" "Would it surprise you that. ... ?"

THE CONTENTIONS

It appears the movant by the evidence and pleadings alleges incapacity, undue influence
and elder abuse (isolating the trustee from his family). This court finds it unnecessary to reach
these issues and cannot with this evidence. It is sufficient to consider only the trustee's actions
and statements and whether they damaged the trust, not why he acted, perplexing as that is.

It appears the respondent trustee's defense is that his actions do not constitute a trust
breach. The court disagrees. The court allowed the respondent the past three days to reverse his
decisions, such as returning all the funds, releasing the records and an opportunity to explain his
statements. Now the court is forced to appoint receivers with the expertise and stature to reverse,
where appropriate, these decisions and limit, if possible, the damage to this trust. The court
charges the receiver with these responsibilities and urges them to surrender other law firm work
in order to intensify the first month efforts. This will be expensive, but necessary. The actions of
the trustee will likely damage the trustee's local brand significantly over this next year if not
reversed soon and if the major interested parties are not reassured that the previous status quo
obtain accompanied by stability and calmness. (One executive resigned duties while on the
stand). Time is of the essence. Early efforts will generate less ultimate costs and make for a
shorter receivership. Receivers are advised to get court approval for all significant decisions to
insure their efforts are transparent, to the parties and court, so that the court's judicial immunity
will enure to them.

Because the trustee served decades with generosity and distinction, the court is most
hesitant to intervene and suspend him. The court is also loath to participate in an endless, costly
Dickensian kerfuffle and will be vigilant to extricate the receivers. However, it is obvious that
the trustee is facing the pressures of; the overreaching expectations of sports fans, the media's
scrutiny, an interdiction contest with the beneficiary, a potential dispute over related trusts with
huge assets as well as a likely pre-death will contest. All litigation where the trustee and his only
child are the principal adversaries. Even this revered trustee is mortal and no court should be

4

 V02150Pl320
complicit in allowing him more than he can bear if a reasonable and safe alternative is found to
"assist" him.

5


V021SOP1321
 TAB C
Amended Order Granting Injunction, Suspending Trustee
& Appointing Limited Temporary Co-Receivers with Restrictions
(CR 98 – 109)
 CAUSE NO. 155,572

ESTATE OF § IN THE PROBATE COURT
§
SHIRLEY L. BENSON, § NUMBER TWO
§
DECEASED § BEXAR COUNTY, TEXAS

CAUSE NO. 155,572-A

RENEE BENSON § IN THE PROBATE COURT
§
V. §
§ NUMBER TWO
THOMAS MILTON BENSON, JR., AS §
TRUSTEE OF THE SHIRLEY L. §
BENSON TESTAMENTARY TRUST § BEXAR COUNTY, TEXAS

AMENDED ORDER GRANTING INJUNCTION, SUSPENDING TRUSTEE &
APPOINTING LIMITED TEMPORARY CO-RECEIVERS WITH RESTRICTIONS

The Court has considered 1:he request of Renee Benson, Petitioner, for an injunction for

the suspension of the trustee and for the appointment of a temporary receiver and receivers to

serve as set out in her Original Petition for Removal of Trustee and Application for Temporary

Injunctive Relief. The court respords with a limited temporary appointment of co-receivers with

restrictions (hereinafter co-receivers) for the Shirley L. Benson Testamentary Trust (the "Trust")

and the Estate of Shirley L. Bensen (the "Estate"). Such appointment is immediately necessary

for purposes of managing and con:;erving the Trust's and the Estate's property during litigation,

the collateral litigation in Louisiani or until the parties resolve their dispute and a family trustee

qualifies, and the need for court action no longer exists.

The appointment of co-receivers for the Trust's and the Estate's property is warranted on

equitable grounds and under Texa~ Property Code§ 114.008(a)(5) and Texas Civil Practice and

Remedies Code § 64.00l(a). The court realizes and acknowledges that the trustee has served

 V02150Plb13
competently for decades and deserves to know why the court acted. The court's reasons are found

in the addendum attached hereto.

The powers and duties of be temporary co-receivers are set forth in this Order. To the

extent that Petitioner seeks to n:quire the temporary co-receivers to fulfill all duties and

responsibilities that trustees owe t) beneficiaries arising under statutory law, common law, or

trust instruments, including any fid·1ciary duties, such relief is DENIED.

IT IS THEREFORE ORDERED THAT:

1. This Court assumes exclusive jurisdiction over all assets, monies, securities, and

property (whether real or persom.l, tangible or intangible) of whatever kind and character,

wherever located, which directly m· indirectly belong to the Trust or the Estate in whole or in part

("Receivership Assets") and the court assumes the power to determine what assets are properly

that of the "Estate" and which are properly that of the "Trust". The Court also assumes exclusive

jurisdiction over all books, records, and other informational and electronic documents that

belong to the Trust or the Estate c·r relate in any way to the Receivership Assets ("Receivership

Records") and the court assumes the power to determine what documents relate to the "Estate

and which relate to the "Trust".

2. Phil Hardberger and Arthur Bayern, residents of San Antonio, Bexar County,

Texas, and citizens and qualified voters of Texas, are hereby appointed Co-Receivers of the

Receivership Assets and Receivership Records (collectively, the "Receivership Estate"). Each

shall file a bond in the amount of $500,000.00, conditioned as provided by law and approved by

this Court. The costs of such bonds shall be paid from the Receivership Estate. However,

considering the growing volume of the collateral litigation, all significant decisions will be

presented for court approval so th~y will share in the court's judicial immunity. The co-receivers

2
 V02150Plbl4
are encouraged not to duplicate wor< in separate law firms but reach an agreement on division of

duties. This Order is further conditioned on Petitioner Renee Benson posting a bond in the

amount of$500,000.00.

3. On filing their bond~:, together with the oath prescribed by law, the Receivers are

authorized, subject to the control of this Court, to do any and all acts necessary to the proper and

lawful conduct of the Receivershif', and to immediately take and have complete and exclusive

control, possession, and custody of the Receivership Estate and to any assets traceable to the

Receivership Estate.

4. The Receivers are o:·dered to well and faithfully perform the duties of their office;

to timely account for all monies, securities, and other properties which may come into their

hands as Receivers; to be compensated for their services on an hourly-fee basis; to hire

professionals, as the Receivers deem necessary or advisable, to provide services to the Receivers

or the Receivership Estate; to file ;)eriodic applications for this Court to approve the payment of

their fees and those of any professionals they may hire; and to abide by and perform all duties set

forth in this Order and as required by law.

5. As of the date of the entry of this Order, the Receivers are, subject to the control

of this Court, also specifically directed and authorized to perform the following acts and duties:

(a) Identify anc~ take possession of the Receivership Estate after determining

the extent of co-ownership with assets held by others or other entities not

before the court, insure it against hazards and risks, and attend to its

maintenanc~.

(b) Manage and direct the business and financial affairs of the Receivership

Estate and any entity owned or controlled by the Receivership Estate

3
 V02150Plb15
 (consistent \.\ith the proportion of ownership or control held by the

Receivership Estate);

(c) With the Cc•urt's consent, retain or remove, as the Receivers deem

necessary or advisable, any officer, director, independent contractor,

employee or ;1gent of the Receivership Estate.

(d) Collect, marnhal, and take custody, control, and possession of all assets

traceable to the Receivership Estate in whole or in part, wherever situated,

including th{: income and profit therefrom and all sums of money now or

hereafter dm: or owing to the Receivership Estate.

(e) Collect, receive, and take possession of all goods, chattel, rights, credits,

monies, effects, lands, leases, books and records, work papers, records of

account, including computer maintained information, contracts, financial

records, monies on hand in banks and other financial initiations, and other

papers of individuals, partnerships, or corporations whose interests are

now directly or indirectly held by or under the direction, possession,

custody, or 1;ontrol of the Receivership Estate.

(t) With the consent of the Court, institute such actions or proceedings to

impose a constructive trust, determine the assets of the "Estate" or "Trust"

and then tc• obtain possession of property or assets, avoid transfers or

obligations, seek damages, and/or recover judgment with respect to any

assets or records that are traceable to the Receivership Estate in whole or

in part or a;1y persons who may have caused an injury to the Receivership

Estate.

4
 V02150Plbfb
(g) Obtain, by presentation of this Order, documents, books, records,

accounts, der·osits, testimony, or other information within the custody or

control of any person or entity sufficient to identify accounts, properties,

liabilities, and causes of action of the Receivership Estate.

(h) Make such ordinary and necessary transfers, payments, distributions, and

disbursements as the Receivers deem advisable or proper for the

maintenance or preservation of the Receivership Estate.

(i) Perform all acts necessary to conserve, hold, manage, and preserve the

value of the Receivership Estate, in order to prevent any irreparable loss,

damage, and injury to the Estate.

(j) Obtain any insurance, including but not limited to errors and omissions

insurance, related to the performance of the Receivers' duties under this

Order, with the costs of such insurance to be paid from the Receivership

Estate.

(k) Enter into such agreements in connection with the administration of the

Receivership Estate, including, but not limited to, the employment of such

managers, agents, custodians, consultants, investigators, attorneys, and

accountants as the Receivers judge necessary to perform the duties set

forth in thi~: Order and to compensate them from the Receivership Estate.

The Recei,ers are specifically authorized to hire Cox Smith Matthews

Incorporated and Langley & Banack, Inc.

(l) With the Court's consent, collect and compromise demands, institute,

prosecute, compromise, adjust, intervene in, or become party to such

5
 V02150Plbll
 actions or proceedings in state or federal courts that the Receivers deem

necessary and advisable to preserve the value of the Receivership Estate,

or that the Receivers deem necessary and advisable to carry out the

Receivers' rrandate under this Order and any subsequent order and

likewise to defend, compromise, or adjust or otherwise dispose of any or

all actions or proceedings instituted against the Receivership Estate that

the Receiven deem necessary and advisable to carry out the Receivers'

mandate under this Order and any subsequent order.

6. It is further ordered that the Receivers must, within 30, days of their qualification,

file in this action an inventory of all property of which the Receivers have taken possession. If

the Receivers subsequently identify or come into possession of additional property, then they

shall file a supplemental inventory as soon as practical.

7. The powers and duties of the temporary co-receivers are prescribed by this Order.

Their duties and obligations run tc· this Court. They are not appointed to serve as trustees of the

Trust and do not, by accepting this appointment, assume fiduciary or other duties that a trustee

would owe to beneficiaries. However, the Receivers are encouraged by the Court to be

transparent with the parties and collateral parties on all substantive anticipated actions and they

may, in the exercise of their discrttion and judgment, respond to requests or other inquiries made

by the parties to this proceeding or beneficiaries of the Trust.

8. It is further ordered that all persons who receive notice of this Order are enjoined

from taking any actions to transfer, withdraw, conceal or encumber any property of the

Receivership Estate, and shall n:.lt take any action to interfere with the Receivers' exclusive

6
 V02150Plb18
possession of the property of the Receivership Estate. Any such interference may be punished by

contempt.

9. It is further ordered 1hat the injunction requested by Renee Benson is GRANTED

and that Thomas Milton Benson, Jr. be and is hereby suspended from serving as Trustee of the

Trust and the Co-Receivers are appointed.

SIGNED and ENTERED on this the _ft_ day of February, 2015

7
 '1021 sop J&, 9 .
 Addendum to Order

PRELIMINARIES

All preliminary matters were resolved by agreement prior to the hearing primarily
through the courts pre-hearing "Inquiry of the court" and the responses thereto by the parties.
(Appellate exhibits 1, 2 & 3) The p:irties agreed the court had jurisdiction and venue and that all
notices and services were complete and no party, attorney or the court, had a conflict. The
attorneys representing the trustee were admitted properly by Pro Hae Vice and no recusal or
continuances were requested. Counsel for the trustee objected to media recording. That request
was granted as the Texas Supreme Court rule of one by notice to the clerk was not satisfied.

All counsel were advised of the court's intention to appoint receivers at the conclusion of
the hearing. That notice is required when a receiver is to be appointed over real estate. The
hearing was then continued until l\londay, February 9, 2015 at 4:00 p.m. which was selected for
the convenience of the attorneys for the trustee and the court.

ACTION AND ST ATEMENTS OF THE TRUSTEE ADVERSELY AFFECTING THE TRUST

The court considered whether, within the four comers of the initial pleadings, and the
resulting testimony, the court's ultimate decision, was compelled and no other. That is to
temporarily suspend the trustee and temporarily appoint limited-power co-receivers. Significant
actions by the trustee and his few ;mown statements motivating those acts negatively impacted
the trust and were of particular concern though all the acts of the trustee are considered.

The statement, "is my money safe?" made to the banker led to the disconcertingly sudden
withdrawal of the trust funds and :he trustees own funds. (The Trustee appeared to express
unnecessary fear considering the harm to the trust that was likely to result). This was 12% of the
banks capitalization and the bank is 97% owned by the trust. The trustee himself had appointed
all the members of the bank's lon;~-term executives and board. There appeared no reason why the
funds would be safer at Frost and there was no evidence that these trust funds are still at Frost
Bank. Both sides presented evidence that this action impaired the banks functions and could

1

 VOZISOPlbZO
cause other depositors concern. The court was left to wonder whether this was a rational fear and
where the funds would go next.

"Take the trust and related records, secretly depart, and don't tell the beneficiaries where
you are." This is a paraphrase of the trustee's words as delivered by the trustee's bookkeeper.
Other than insuring that the benefic! aries could not be informed about the trust in the future,
again a sudden departure from the t.istoric trust relationship, this act had no purpose and no
positive for the trust. It breached the relationship of trust that existed over the life of this only
parent trustee and only child benefi;iary.

"You are the only person I trust in San Antonio." The dealership General Manager
quoted the trustee. The evidence was that the trustee had trusted relationships with an extensive
array of key managers for many de;ades. Indeed long-term loyalty was a hallmark of his
business. This statement, provided by the respondent's witness, unexplained by the trustee, along
with the foregoing statements, carr.es a tone of sudden excessive fear. The court cannot deduce
from the record how this feeling follows from the actions of the beneficiary but no acts of the
daughter would seem to justify thi~. conclusion that all long-term executive associates in San
Antonio are disloyal or involved in a conspiracy.

"I want no contact with an~' of you . . . Sincerely yours" referring specifically to the
beneficiaries. Though drafted by a lawyer friend, only the attorney for the trustee was left to
explain its meaning. His conclusion is an opinion and the statements of his legal team are not
evidence. The trustee, though available, did not appear. The bookkeeper testified she saw him in
San Antonio earlier. This no contact statement is most contrary to the evident intention of the
settlers of the trust at the time it was established. Again, the evidence of the daughter's behavior
that would generate this anger wa!; meager. The questions on cross-examination inferred that her
lack of business acumen disappointed the trustee. However, the trustee is also father. He was
known to revere family, church and friends, and particularly love his only surviving child. It
appears extreme to disclaim all hi; parental care, a serious life-altering change at his age, when
families celebrate parents and graqdparents. Wretched relationships cannot be good for this
trustee who suffered the tragic early loss of two children and two wives. Without apparent cause,
the trustee stopped the $10,000 p . b-0 • IV . fl,
"' ,
I

~ -.....
A. Should my brother-in-law, AUGUST CHARLES BEN$0N, survive me, C{T
I direct that my Independent Executor grant to my said brother-in-law
the option to buy all of my interest in the stock of Katy Road Chrysler-
Plymouth, Inc . , the price of such stock ~o be its current book
value at the date of my death . This option shall apply on an all
or nothing basis and my brother-in-law shall not be entitled to purchase
any of my interest less than my entire interest . My Independent
Executor shall grant such option to my brother-in-law in writing as
soon as possibl e after issuance of his Letters Testamentary.
such option must be exercised by my brother-in-law within ninety (90)
days from the date of grant or it shall lapse. If my brother-in-law
elects to exercise this option, the terms of the purchase price
shall be a minimum of one-fifth (1/5) of the purchase price in
cash payable within ninety (90) days after exercise with the
balance of the purchase price represented by a promissory note
with interest at eight percent (8%} secured by such stock with
equal annual installments payable over a five (S) year period .
B. Should my brother-in-law, JEROME JOSEPH BENSON , survive me,
I direct that my Independent Executor grant to my said brother-in-law
the option to buy all of my interest in the stock of Chrysler-Plymouth
City Company , Inc . , the price of such stock to be its current
book value at the date of my death . This option shall apply on
an all or nothing basis and my brother-in-law shall not be entitled to
purchase any of my interest less than my entire interest. My
Independent Executor shall grant such option to my brother- in-law in
writing as soon as possible after issuance of his Letters Testamentary.
Such option must be exercised by my brother- in-law within ninety (90)
days from the date of grant or it shall lapse. If my brother-in-law
elects to exercise this option, the terms of the purchase shall be a
the purchase price in cash payable
exercise, with the balance of the
a promissory note with interest
by such stock with equal ~u
)
'
v· ~

/

over a five (SI year per~fn.225~ {~o. o.c?
J'etJJllie- (Jt:?4. Lai
.
( 2) To my mother, ~ LANDRY, if she should
survive me, cash in the sum of $:h-~~(tt) .B;?.F month
during the remainder of her life6·m~~· 0 0 "'ih@ ' ...._.
. t i
(3) To my maid, VIOLA SEARCY, if she should surviv me,
cash in the sum of $3-ej1-.00 p~r month during the remainder
of her lifetime. )'ITl-OO· <>-<>.,.¢,j! .
It is my desire that the above payments be commenced as soon
after my death as practical . My Independent Executor in his sole
and absolute discretion, may satisfy the foregoing bequests (if
payable) by purchasing from some reputable life insurance company
contract (without cash value and
wherein and whereby su , company will

-6-
.:-----
....,.........-
_.,.,.

agree to make the monthly payments hereinabove set out, and by
delivering said annuity contract to the above designated bene-

ficiaries in full satisfaction of said bequests.

All of the remaining net income of the Trust, to the extent

that it is available, shall be paid to my husband, THOMAS MILTON BENSON,

JR., if he shall survive me, during his lifetime in such installments

and at such times as may be most convenient to the Trustees, but

in no event less than quarterly. At the death of my husband, the

accrued or undistributed income on hand shall be retained by the

Trustee and shall not be apportioned or payable to his estate.

B. During the lifetime of my said husband, the FROST NATIONAL

BANK OF SAN ANTONIO, in its sole discretion as Trustee, shall

have the power to pay from the principal such amounts as are in

its discretion necessary to provide adequately for the health,

maintenance and support of my said husband in the manner to which

he is accustomed at the time of my death, and always taking into

consideration the resources available to him from other sources,

as it is my desire that such other resources be first expended.

c. 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.

D. Upon the death of my husband, THOMAS MILTON BENSON, JR. , or

if he fails to survive me and if my son, ROBERT CARTER BENSON, has

survived me, then the trust shall be divided into as many equal

shares as I have children (RENE BENSON, JEANNE MARIE BENSON and

ROBERT CARTER BENSON) then living and children who have died leaving

issue who are then living (such deceased child's share shall be

divided per stirpes for his or her issue). The net income and

principal from each beneficiary ' s share shall be used within the

sole discretion of my Trustees for his or her support, maintenance

-7-
 ___.....__... _
E. As each beneficiary of any trust created by Paragraph

D of Article VI of this Will attains the age of thirty (30) years,

the Trustees shall distribute one-half (1/2) of the then principal

and undistributed income to him or her in fee simpl e . As each

beneficiary attains the age of thirty-five (35) years, the Trustees

shall distribute all of the remaining principal and undistributed

income to him or her in fee simple and the trust shall terminate

as to such share.

F. Should any beneficiary die prior to receiving his or

her full distribution hereunder, then such beneficiary ' s share

shall continue to be held under the same terms and conditions

hereof for the benefit of such beneficiary ' s surviving issue per

stirpes or absent same, for the equal benefit of such beneficiary's

surviving brothers and/or sisters, or if any are deceased , for

their surviving issue per stirpes, or absent same, for the benefit

of my surviving issue per stirpes .

VII.

~he £oiiowing gcnorai provisions shall be applicable to all

trusts created hereunder.
A. Should any interest of any trust not be vested absolutely

within one (1) day less than twenty-one (21) years after the last

to die among myself, my spouse and my issue living at the time of

my death, then and in such event, any such unvested interest

shall immediately vest in the then income beneficiary or bene-

ficiaries despite any terms hereof to the contrary.

B. Should any beneficiary of any trust be a minor or

within the judgment of the Trustees of such trust incapable of

managing his or her affairs, distributions to such beneficiary

may be made to the beneficiary or to his or her parent, guardian

or the person with whom such beneficiary lives, or applied direct

for the benefit of such beneficiary without the necessity for

guardianship or responsibility for the application for such

80122527 (-:(\
 ---:--
...

D. The interest of any beneficiary in any trust shall be

free from the interference or control of any creditor or spouse

and shall not be susceptibl e to ant icipation , alienation, assignment ,

sale, transfer, mortgage , pledge or subject to the debts, liabili ties

or obligations of such beneficiary or to attachment, garnishment,
bankruptcy or any other legal or judicial processes .

E. Although I have provided in part for separate trusts,

the assets of such trusts may remain commingled and unsegregated

so long as proper and separate books and accounts are maintained.

F. The trusts shal l be administered by the Trustees in

accordance with the provisions of the Texas Trust Act (Article

7425b-l, et seq . , Vernon ' s Revised Statutes of Texas and subsequent

amendments thereto) , except the terms of this instrument shall

control when in conflict with the provisions of said Act and the

Trustees shall always serve without bond or other security . The

Trustees may purchase life insurance and annuities and the Trustees

shall not be required to conform to the provisions of said Act

with regard to depletion reserve on mineral proper ties, but may
use their discretion in such matters. The Trustees in the investment

and reinvestment of trust assets, shall not be restricted to

investments authorized for Trustees nor fee l compelled to diversify,

but may within their full discretion invest in or may continue to

invest in or partici pate in non-produc.tive or speculative investments

and business ventures as partner, joint-venturer , or stockholder;

may sell , buy, borrow, mortgage, encumber and hypothecate; and

may generally transact trust affairs with the freedom and absence

of restraint enjoyed by an individual . in the management of his

own affairs.
G. Any successor Trustee (or Executor) shall be responsible
on~y £or the assets actually turned over t o him or it and shall

have no
0£ nis
f-
----..---- .. ..,-.,.,.--
...~..,..~.,,,,~

VIII.

I name, constitute and appoint, individually and in the
order named as my Independent Executor, my husband, THOMAS MILTON

BENSON, JR., then my brother-in-law, LARRY JOHN BENSON, and then the

FROST NATIONAL BANK OF SAN ANTONIO, TEXAS . My Independent Executor and

his successors shall serve without bond and in addition to the usual

powers of such shall have all powers heretofore granted my Trustees,

inc luding the power to borrow and full power to sell, lease,

mortgage or exchange all assets of my estate, and I direct that

no action shall be taken in any court of competent. jurisdiction

with regard to my estate except the filing for probate of my Will

and the filing of an inventory, appraisernent and list of claims

as required by law.

IX.

r name, constitute and appoint, my husband, THOMAS MILTON BENSON,
JR . , and the FROST NATIONAL BANK OF SAN ANTONIO, TEXAS, as Co-Trustees

of any trust created pursuant to the terms and provisions of

this Will. Should my husband, THOMAS MILTON BENSON, JR., fail to

serve for any reason, in that event, the FROST NATIONAL BANK OF SAN

ANTONIO, TEXAS, shall serve alone, as Trustee.

x.
For its services hereunder, the FROST NATIONAL BANK OF

SAN ANTONIO, TEXAS shall be entitled to receive the same fee that

it customarily receives for the same or similar services at the time

such services are rendered.

XI.

It is my desire and ~irection that STANLEY D. ROSENBERG be

employed as attorney to represent my Executor in the event of my

demise and that similarly he be employed to represent the various

business entities which might comprise my estate. In the event

that he for any reason cannot so serve, I then substitute in his
place the law firm of OPPENHEIMER, ROSENBERG, KELLEHER & WHEATLEY,

INC .

. · .'d-~~'.-~'];_;-,~·c~;tE·XECUTED this [{/ day of --"'t"-';~'-"
· ;:;......- :...::~'---._('-C'"·-..;_'-
. .;_ •_ _ , 1976.
' I

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,,., ~ ., : .. ~ •', ,_.,, ,._1~,..~.l:S.ft~.-'''3!"~'1;:~··~ l'1
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(':'•f<-l!l t. '''•ii",.·1''" f~11 ·-.r1.;t '" AW.) ., '"''° ·"'-
..Tir:el£0

( 2)
 VI.
I hereby amend Paragraph E of Article VI by changing the
age of thirty (30} years to age thirty- five (35) years and the
age of thirty- five (35) years to the age of forty (40) years .
All other provisions of Paragraph E of Article VI shall remain
intact.
VII.
I hereby delete Paragraph F of Article VI and substitute

therein the fo l lowing:
Should any beneficiary die prior to receiving his or
her ful l distribution hereunder, then such beneficiary's
share shall continue to be held under the same terms and
conditions hereof for the benefit of such persons that the
beneficiary may specifically appoint by his Last Wil l and
Testament, excluding the right to appoint said property
to his/her estate or his/her creditors, or absence same,
for the benefit of such beneficiary's surviving issue per
stirpes, or absence same, for the equal benefit of such
beneficiary's surviving brothers and/or sisters , or if
any are deceased, for their surviving issue per stirpes ,
or absence same, to my heirs at law in fee simple .
VIII.
I hereby amend Article VII I of my Last Wi 11 and Testament
by de l eting therein my brother- in- law, LARRY JOHN BENSON, as
successor Trustee and substitute therein my daughter, RENEE
BENSON, as successor Trustee to THOMAS MILTON BENSON, JR. All
other provisions of said Article shall remain intact.
I amend Article IX of my Last Will and Testament by
removing the FROST NATIONAL BANK as Co-Trustee of my Last Will
and Testament and appoint STANLEY D. ROSENBERG as Co-Trustee
solely for the purpose of acting under Paragraph B and C of
Article VI. I retain as Trustee my husband,

CT···'~ (7 : -Ct,•l·'J (.0•,1:11 { Cr' tiEX..\i•
•:!u-.;.1 ~~~'''·~u,,,,,::;.\;-F
~·}·~~~· ~~- ..-~~;.~~:~'.~;~..~~~~~..~~~~1:J Z!,..:.:\
I,; •,;•·~.··•YI :i n: :.:• ....,•. ,,. "' t.::•. ~: 1t> n·J-:r,•HV..
''il.>1e•:• At;·.r, ..,.,..,,.. ..., ""Ce•(."\.tji "''t'( . J::.-
f11t":. •fi.)

(3)

80122 5 38
,. .
THOMAS MILTON BENSON, JR . , as Trustee of any Trust created

pursuant to the terms and provisions of my Will. Should my

husband, THOMAS MILTON BENSON, JR., or STANLEY D. ROSENBERG,

fail to serve, or resign for any reason , in that event, I

appoi nt my daughter, R:ENEE BENSON, and then the FROST NATIONAL

BANK, to serve as suc-cessor Trustee in the capacity rendered

vacant by such failure or resignation to serve by the Trustee

or Co-Trustee.

In all other respects I ratify and confirm all o f the

provisions of my said Last Will and Testament dated October 16,

1976 and the First Cod5.cil executed February 2, 1978.

IN TESTIMONY WHEREOF, I sign, publish and declare this

instrument to be the Second Codicil to my Last Will and

Testament this ~ day of ~(~, , 1980, at San

Antonio, Texas.

SHIRLEY L. BENSON, Testatrix

The foregoing instrument, was signed, published, and

declared by SHIRLEY L. BENSON, the Testatrix, to be the

Second Codicil to her Last Will and Testament, and we at her

request and in her presence and in the presence of each

other have hereunto subscribed our names as witnesses.

~Oe,L,\)e.--
Address
IX /9Co6

Address

( 4)
801Z253S
THE STATE OF TEXAS §
§ SELF-PROOF
COUNTY OF BEXAR §

BEFORE ME, the undersigned authority, on this day
personally appeared SHIRLEY L. BENSCN , Sandra L. Lindstrom,
Melissa K. Diosdado and
Richard N . Weinstein , known to me
-t-o~b-e~t-h
-e~T~e-s_t_a_t_r_i-·x--and the witnesses, respectively, whose
names are subscribed to the annexed or foregoing instrument
in their respective capacities, and all of said persons
being by me duly sworn, the said SHIRLEY L. BENS,CN, Testatrix,
declared to me and to the said witnesses in my presence that
said instrument is her SECOND CODICIL TO HER LAST WILL AND
TESTAMENT, and that she had willingl y made and executed it
as her free act and deed for the purpose therein expressed;
and the said witnesses, each on his oath, stated to me in the
presence and hearing of the said instrument is her SECOND
CODICIL TO HER LAST WILL AND TESTAMENT, and that she
executed same as such and wanted each of them to sign the
same as witnesses in the presence of the said Testatrix and
at her request; that she was at that time eighteen (18)
years of age or over and was of sound mind; and that each of
said witnesses was then at least fou.r_teen ( 14) years of age.

J;L. ~, Testatrix

'I-. )rt~ k. ~
w~'~
W1. tness
SUBSCRIBED AND ACNOWLEOGED BEFORE ME by the said
SHIRLEY L. BENSON ,Testatrix, and SUBSCRIBED AND
SWORN TO BEFORE ME by the said Sandra L . Lindstrom
Melissa K. Diosdado and Richard N. Weinstein

witnesses, this ~ day of -~-
---'---'"'------' 1980.

~ fl!