Frost Bank v. Michelle Glenn, Individually, Perry Hillier, Individually and as Duly Appointed Administrator of the Estate of Jo Ann Turrentine, Mark McDonald, Individually, and Patrick McDonald, Individually

NUMBER 13-23-00595-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI – EDINBURG

FROST BANK, Appellant,

v.

MICHELLE GLENN, INDIVIDUALLY,
PERRY HILLIER, INDIVIDUALLY
AND AS DULY APPOINTED
ADMINISTRATOR OF THE ESTATE
OF JO ANN TURRENTINE,
MARK MCDONALD, INDIVIDUALLY,
AND PATRICK MCDONALD,
INDIVIDUALLY, Appellees.

ON APPEAL FROM THE COUNTY COURT AT LAW NO. 3
OF NUECES COUNTY, TEXAS

MEMORANDUM OPINION

Before Chief Justice Tijerina, and Justices Cron and Fonseca
Memorandum Opinion by Justice Cron
In this interlocutory appeal, appellant Frost Bank principally complains that the trial

court erred by denying its motion to dismiss under the Texas Citizens Participation Act

(TCPA or Act). See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003. Frost Bank contends

that appellees Michelle Glenn, Perry Hillier, Mark McDonald, and Patrick McDonald (the

Beneficiaries) filed various breach of fiduciary claims against Frost Bank in response to

Frost Bank’s exercise of its right to petition, the Beneficiaries failed to present clear and

specific evidence to establish each element of their claims, and Frost Bank otherwise

proved its entitlement to judgment as a matter of law. Relatedly, Frost Bank also argues

that the Beneficiaries’ evidence should have been excluded as “improper expert

testimony,” “conclusory,” and “irrelevant.” We affirm in part and reverse and remand in

part.

I. BACKGROUND

In 2007, settlor Jo Ann Turrentine created the Jo Ann Turrentine Revocable Living

Trust (the Trust) and directed the corpus of the Trust to be distributed to her daughter,

Glenn, and her grandchildren, Hillier, Patrick, and Mark, upon her death. Although

Turrentine was designated as the “Sole Trustee,” the Trust also designated Raymond

James Trust Company West, and later Raymond James Trust, N.A. (collectively,

Raymond James), as a “Corporate Trustee,” and both Turrentine and Raymond James

acted as co-trustees.

In 2018, after Turrentine’s death, Frost Bank succeeded Raymond James as the

“Corporate Trustee.” Under the terms of the Trust, the only person who could succeed

Turrentine as an individual co-trustee was Glenn; however, because she failed to serve,

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Frost Bank became the sole trustee. Glenn’s failure to serve also meant that any

successor trustee after Frost Bank was required to be a “Corporate Trustee,” which is

defined by the Trust as “a trust corporation or a bank having trust powers, organized

under the laws of the United States of America or any state, . . . [that must] have not less

than Thirty Million Dollars ($30,000,00) unimpaired capital and surplus.”

In April 2020, the Beneficiaries filed suit against Raymond James and Frost Bank

for failure to provide them with an accounting of the Trust. The Beneficiaries also brought

claims against Raymond James for breach of fiduciary duty for allegedly mismanaging

the Trust estate.

In September 2020, consistent with the Trust, Frost Bank provided the

Beneficiaries notice of its intent to resign as trustee and requested that the Beneficiaries

secure a qualifying successor trustee within thirty days. If the Beneficiaries could not

designate another corporate trustee, the Trust required “a court of competent jurisdiction”

to appoint a successor corporate trustee “at the expense of the trust estate.”

In December 2020, Frost Bank filed its “Counterclaim for Judicial Modification of

Trust, Appointment of Successor Trustee, and Declaratory Judgment.” Frost Bank alleged

that the Beneficiaries “have been unable to secure a potential successor corporate

trustee,” and therefore, it is necessary to modify the Trust terms to allow for the

appointment of an individual successor trustee. Concomitantly, Frost Bank asked the trial

court to accept its resignation and appoint an individual successor trustee under the

modified terms of the Trust. Frost Bank also requested “a judicial discharge and [a

judgment] declaring that Frost Bank has not breached its fiduciary duties during its term

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as Successor Trustee of the Trust.” It additionally requested a declaratory judgment that,

pursuant to the Trust’s terms, “Frost Bank is not under any duty or responsibility to audit

or review the actions or accountings of any predecessor Trustee of the Trust, and that

Frost Bank is expressly relieved and discharged from any liability or responsibility from

any actions or failure to act of such predecessor.” Finally, Frost Bank sought reasonable

attorney’s fees and costs under the Texas Uniform Declaratory Judgment Act and the

Texas Trust Code.

Frost Bank filed a traditional motion for summary judgment on its counterclaims

and the Beneficiaries’ request for an accounting. On October 4, 2021, the trial court

granted Frost Bank partial summary judgment by finding “that Frost Bank has given notice

of its resignation per the [Trust] Agreement” but otherwise denied its motion. The trial

court directed the parties “to find a successor trustee” within thirty days and ordered Frost

Bank to “remain as successor trustee until that time.” 1 Several months later, the trial court

entered an order removing Frost Bank and appointing Kenton McDonald 2 as the

individual successor trustee.

In August 2023, the Beneficiaries amended their petition against Frost Bank by

adding claims for breach of fiduciary duty. These claims would become the subject of

Frost Bank’s motion to dismiss under the TCPA. According to the amended petition,

Kenton notified Frost Bank’s attorney in October 2020 that the Beneficiaries “had agreed

to a modification of the Trust to permit an individual to serve as the Trustee and to have

1 The trial court then severed the remaining claims between the parties from the litigation involving

Raymond James.
2 Kenton McDonald is Glenn’s ex-husband and the father of Mark and Patrick.

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Kenton . . . serving in that capacity and of Kenton[’s] . . . willingness to do so

immediately.” They further alleged that they sent Frost Bank a purported amendment to

the Trust executed by the Beneficiaries, but “Frost Bank refused to accept this as

adequate and in December 2020 asked the [trial court] . . . to modify the Trust to approve

its attorney’s fees in this matter, (which had been billed to the Trust) and to grant Frost

Bank a discharge and release from liability for its actions.”

The Beneficiaries’ breach of fiduciary claims can be placed into three buckets:

(1) “wasting trust assets” by billing the Trust for unnecessary attorney and trustee fees;

(2) “failing to advise” Glenn about Medicare and social security benefits; and

(3) “obstructing” the Beneficiaries’ claims against Raymond James by failing “to supervise

or even review the actions of Raymond James financial advisors and brokers.” As to their

claim for unnecessary attorney’s fees, the Beneficiaries alleged that Frost Bank took

“positions” in the litigation that were contrary to their interests and only benefited Frost

Bank. Concerning the allegedly improper trustee fees, they faulted Frost Bank for “failing

to promptly resign” after its September 2020 notice and instead waiting until the trial court

approved the trustee change in 2022.

In its motion to dismiss, Frost Bank argued that the Beneficiaries’ breach of

fiduciary claims were “based exclusively on Frost Bank’s exercise of the right to petition.” 3

Frost Bank also asserted that the Beneficiaries could not prove their claims because Frost

Bank’s conduct was consistent with the Trust and the Texas Trust Code.

On the morning of the scheduled dismissal hearing, the Beneficiaries filed a

3 Frost Bank conceded that the Act did not apply to the Beneficiaries’ claim for an accounting.

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combined motion for leave to file an untimely response and response to the motion to

dismiss. The response argued that the Act did not apply because Frost Bank could not

“prove that the Beneficiaries’ lawsuit is in response to Frost’s right to free speech.”

Regarding the merits of their claims, the Beneficiaries argued that Frost Bank “breached

its fiduciary duty by burdening the Beneficiaries with on-going, excessive attorneys’ fees

used as leverage to obtain a release from liability with prejudice for Frost Bank.” The

response did not address the merits of any of the Beneficiaries’ other breach of fiduciary

duty claims.

The response was supported by affidavits from Kenton and Russell Tranbarger,

an accounting expert retained by the Beneficiaries. Kenton averred that, “[p]rior to Frost

Bank’s discharge as [t]rustee, Frost Bank consistently insisted that its discharge as

trustee was accompanied by a release of Frost Bank from liability with prejudice.”

Kenton also claimed that it was “improper for Frost Bank to have made such a request”

and that it was “offensive that Frost Bank demanded such release from liability with

prejudice [by] spending Trust money to leverage it.” On appeal, the Beneficiaries have

clarified that this “demand” for a “release from liability with prejudice” was Frost Bank’s

request for a judicial declaration that “Frost Bank has not breached its fiduciary duties

during its term as Successor Trustee of the Trust.” 4 The gist of Tranbarger’s affidavit was

that Raymond James invested Trust assets too conservatively and failed to “take

4 Unlike a request for a declaratory judgment from a trial court, a “release of liability” generally

means “a contractual arrangement in which one party assumes the liability inherent in a situation and
thereby surrenders legal rights or obligations.” Segal v. Emmes Capital, L.L.C., 155 S.W.3d 267, 283 (Tex.
App.—Houston [1st Dist.] 2004, pet. dism’d). Such a release acts as “an absolute bar to any right of action
on the released matter.” Id.
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advantage of the historic market dip” in 2008. His testimony was confined to the

management of the Trust “from 2007 to 2014.”

Frost Bank filed a motion to strike the response as untimely, arguing that the

Beneficiaries failed to show good cause for missing the statutory deadline and that the

late response was prejudicial to Frost Bank. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.003(e) (requiring responses to be filed seven days in advance of the dismissal

hearing). It also filed various evidentiary objections to both affidavits. The trial court

granted the motion for leave and denied the motion to dismiss. 5 The trial court never

ruled on Frost Bank’s evidentiary objections, despite Frost Bank filing two advisories

requesting a ruling. This interlocutory appeal ensued. See TEX. CIV. PRAC. & REM. CODE

ANN. § 51.014(a)(12).

II. APPLICABLE LAW & STANDARD OF REVIEW

Designed to safeguard constitutional rights, the Act provides a mechanism for early

dismissal of unmeritorious claims “based on or in response to a party’s exercise of the

right to free speech, right to petition, or right of association.” Id. § 27.003(a). It is the

movant’s initial burden to establish by a preponderance of the evidence that the Act

applies to the respondent’s claim. Id. § 27.005(b). The burden then shifts to the

5 Although Frost Bank refers to the Beneficiaries’ response as “untimely” throughout its brief, it

does not argue on appeal that the trial court abused its discretion by granting the motion for leave. For
example, during the dismissal hearing Frost Bank argued that counsel for the Beneficiaries was indifferent
to the statutory deadline to file a response and that counsel intentionally filed the response while Frost
Bank’s counsel was traveling from San Antonio to Corpus Christi for the hearing, thereby prejudicing Frost
Bank’s ability to object to the Beneficiaries’ evidence. Considering Frost Bank has not carried any of these
arguments forward, we view its use of “untimely” as a rhetorical comment, rather than a preserved issue
that requires supplemental briefing. See Borusan Mannesmann Pipe US, Inc. v. Hunting Energy Servs.,
LLC, 716 S.W.3d 572, 576 (Tex. 2025).
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respondent to avoid dismissal by “establish[ing] by clear and specific evidence a prima

facie case for each essential element of the claim in question.” Id. § 27.005(c). A “prima

facie” showing generally “requires only the minimum quantum of evidence necessary to

support a rational inference that the allegation of fact is true.” In re E.I. DuPont de

Nemours & Co., 136 S.W.3d 218, 223 (Tex. 2004) (orig. proceeding) (per curiam) (internal

quotation marks and citation omitted). A prima facie case “refers to evidence sufficient as

a matter of law to establish a given fact if it is not rebutted or contradicted.” In re Lipsky,

460 S.W.3d 579, 590 (Tex. 2015). “In other words, a prima facie case is one that will

entitle a party to recover if no evidence to the contrary is offered by the opposite party.”

Serafine v. Blunt, 466 S.W.3d 352, 358 (Tex. App.—Austin 2015, no pet.).

Even if the respondent meets their burden, dismissal is mandatory “if the moving

party establishes an affirmative defense or other grounds on which the moving party is

entitled to judgment as a matter of law.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.005(d).

When determining whether to dismiss the legal action, the trial court must consider “the

pleadings, evidence a court could consider under Rule 166a, Texas Rules of Civil

Procedure, and supporting and opposing affidavits stating the facts on which the liability

or defense is based.” Id. § 27.006(a). Each step of the inquiry is a question of law we

review de novo. USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195, 200 (Tex.

2023).

“Generally, the elements of a claim for breach of fiduciary duty are (1) the existence

of a fiduciary duty, (2) breach of the duty, (3) causation, and (4) damages.” First United

Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017). Trustees

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owe a fiduciary duty to the beneficiaries of a trust. Ditta v. Conte, 298 S.W.3d 187, 191

(Tex. 2009). This includes “an unwavering duty of good faith, fair dealing, loyalty and

fidelity over the trust’s affairs and its corpus.” Herschbach v. City of Corpus Christi, 883

S.W.2d 720, 735 (Tex. App.—Corpus Christi–Edinburg 1994, writ denied).

III. THE ACT APPLIES TO CERTAIN CLAIMS

It is undisputed that Frost Bank was exercising its right to petition when it filed its

counterclaims against the Beneficiaries. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.001(4)(A)(i) (defining “exercise of the right to petition” in part as “a communication in

or pertaining to . . . a judicial proceeding”); Howard v. Matterhorn Energy, LLC, 628

S.W.3d 319, 333 (Tex. App.—Texarkana 2021, no pet.) (concluding that the movants

were exercising their right to petition by filing a pleading in a pending judicial proceeding).

Instead, the parties dispute whether the Beneficiaries’ amended claims for breach of

fiduciary duty were “based on or in response to” Frost Bank’s counterclaims. See TEX.

CIV. PRAC. & REM. CODE ANN. § 27.003(a). We examine the allegations in the

Beneficiaries’ amended petition to determine the bases of their legal actions. See Hersh

v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (construing the Act and explaining that the

respondent’s pleading is the “best and all-sufficient evidence of the nature of the action”

(quoting Stockyards Nat’l Bank v. Maples, 95 S.W.2d 1300, 1302 (Tex. 1936)). For

reasons explained below, we conclude that the Act applies to the Beneficiaries’ breach of

fiduciary claims for unnecessary attorney and trustee fees, but not to their other claims.

The Beneficiaries alleged that Frost Bank breached its fiduciary duty by causing

the Trust to incur unnecessary attorney and trustee fees by “ask[ing]” the trial court “to

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modify the Trust” rather than accepting the Beneficiaries’ nonjudicial amendment of the

Trust. According to the Beneficiaries, Frost Bank had a “fiduciary duty to promptly resign

following its notice of resignation on September 4, 2020,” but instead continued to collect

trustee fees until the trial court approved Kenton as successor trustee on March 10, 2022.

They further alleged that Frost Bank charged the Trust for its attorney’s fees even though

Frost Bank took “positions” in the litigation that were beneficial only to Frost Bank and

contrary to the interests of the Beneficiaries. Thus, for these claims, the Beneficiaries’

theory of liability is premised on Frost Bank filing counterclaims against the Beneficiaries.

See Creative Oil & Gas, LLC v. Lona Hills Ranch, LLC, 591 S.W.3d 127,137 (Tex. 2019)

(finding the Act applied because respondent’s “counterclaims alleged that the [movant]

breached section 11 of the lease by commencing litigation in the Railroad Commission

and in this case”); Youngkin v. Hines, 546 S.W.3d 675, 680 (Tex. 2018) (finding the Act

applied because the movant’s “alleged liability stems from” the movant’s communication

in a judicial proceeding); Serafine v. Blunt, 466 S.W.3d 352, 360 (Tex. App.—Austin 2015,

no pet.) (finding the Act applied where the respondents alleged that their counterclaim

was partially based on the movant’s “filing of this lawsuit”). We therefore agree with Frost

Bank that these “waste” claims were “based on or in response to” Frost Bank’s right to

petition. See TEX. CIV. PRAC. & REM. CODE ANN. § 27.003(a).

We disagree, however, that any of the other breach of fiduciary claims fall within

the Act’s protections. The Beneficiaries also alleged that Frost Bank breached its fiduciary

duty by failing to “appropriately advise and assist” Glenn with obtaining both Medicare

and social security benefits. These claims bear no relation to “a communication in or

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pertaining to . . . a judicial proceeding.” See id. § 27.001(4)(A)(i). Likewise, the

Beneficiaries’ claim that Frost Bank “obstructed” their claims against Raymond James by

“fail[ing] to supervise or even review the actions of Raymond James[’s] financial advisors

and brokers” is unrelated to Frost Bank’s right to petition. True, Frost Bank had already

filed its counterclaim seeking a judicial declaration that it “is not under any duty or

responsibility to audit or review the actions or accountings of any predecessor Trustee of

the Trust.” But the mere fact that Frost Bank beat the Beneficiaries to the punch in

requesting judicial relief on this issue does not mean that the Beneficiaries’ amended

claim was “based on or in response to” this counterclaim. See Republic Tavern & Music

Hall, LLC v. Laurenzo’s Midtown Mgmt., LLC, 618 S.W.3d 118, 125 (Tex. App.—Houston

[14th Dist.] 2020, no pet.) (“We decline to hold that the TCPA’s applicability turns solely

on which party won the race to the courthouse.”). Rather, looking to the substance of the

Beneficiaries’ allegations, we conclude this claim concerns Frost Bank’s alleged

omissions outside the context of the lawsuit. See id. at 124 (finding Act did not apply to

counterclaims because the counterclaimant’s “factual allegations are solely concerned

with private communications outside of, and unrelated to, any judicial or governmental

proceeding”). Accordingly, the trial court did not err by denying the motion to dismiss with

respect to the Beneficiaries’ breach of fiduciary claims for failure to “advise and assist”

and “obstruction.”

IV. EVIDENTIARY OBJECTIONS

Before considering whether the Beneficiaries met their prima facie burden on their

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“waste” claims, we must first decide which evidence was properly before the trial court. 6

See Hart v. Manriquez Holdings, LLC, 661 S.W.3d 432, 441 (Tex. App.—Houston [14th

Dist.] 2023, no pet.) (“Before examining whether the evidence above satisfies the burden

imposed by the TCPA, we begin by addressing one of Hart’s evidentiary objections that

has bearing on our review of the evidence for this appeal.”). A trial court’s evidentiary

rulings are reviewed for an abuse of discretion. Id. A trial court abuses its discretion when

it acts without regard to guiding rules or principles. Id.

Frost Bank contends that the trial court should have “excluded” Kenton’s affidavit

as “improper expert testimony” and “conclusory,” and Tranbarger’s affidavit as

“irrelevant.” In its reply brief, Frost Bank also complains that the Beneficiaries are

improperly citing evidence in their appellate brief that was part of the prior summary

judgment record. Frost Bank notes the Beneficiaries did not attach this evidence to their

response or otherwise ask the trial court to consider it in relation to the motion to dismiss.

A. Kenton’s Affidavit

Frost Bank first complains that Kenton’s affidavit “is improper expert testimony by

a witness who is not qualified to offer an expert opinion in this case.” Kenton spends a

portion of his affidavit explaining his background “as a tax and estate lawyer” and

ultimately provides his “professional opinion” that “Frost Bank breached its fiduciary duties

in this matter.” According to Frost Bank, Kenton “fails to establish how his status as an

attorney” qualifies him as an expert. Even if Kenton qualifies as an expert, Frost Bank

argues that his opinion lacks a factual basis.

6 Although the trial court never ruled on these objections, Frost Bank preserved this issue by filing

two advisories complaining about the trial court’s failure to rule. See TEX. R. APP. P. 33.1(a)(2)(B).
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The TCPA directs courts to “consider . . . evidence a court could consider under

Rule 166a.” TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a). In summary judgment

practice, “[s]upporting and opposing affidavits shall be made on personal knowledge,

shall set forth such facts as would be admissible in evidence, and shall show affirmatively

that the affiant is competent to testify to the matters stated therein.” TEX. R. CIV. P. 166a(f).

“An affiant’s position or job responsibilities can qualify him to have personal knowledge

of facts and establish how he learned of the facts.” Valenzuela v. State & Cnty. Mut. Fire

Ins. Co., 317 S.W.3d 550, 553 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (citing

SouthTex 66 Pipeline Co. v. Spoor, 238 S.W.3d 538, 543 (Tex. App.—Houston [14th

Dist.] 2007, pet. denied)).

Here, Kenton established his personal knowledge through his position as the

successor trustee. See id. He explained that he “presently serve[s] as the trustee,” that

he has “reviewed” the Trust instrument, and that he is “familiar with Frost Bank’s actions

while serving as trustee of the Trust.” Frost Bank does not contend that the Beneficiaries

needed expert testimony to establish a prima facie case for their breach of fiduciary

claims, and we are aware of no such requirement. See Mack Trucks, Inc. v. Tamez, 206

S.W.3d 572, 583 (Tex. 2006) (“Expert testimony is required when an issue involves

matters beyond jurors’ common understanding.”). In any event, “not all witnesses who

are experts necessarily testify as experts. A witness may have special knowledge, skill,

experience, training, or education in a particular subject, but testify only to matters based

on personal perception and opinions.” Reid Rd. Mun. Util. Dist. No. 2 v. Speedy Stop

Food Stores, Ltd., 337 S.W.3d 846, 850 (Tex. 2011) (citation omitted). Having cleared the

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personal-knowledge hurdle, Kenton’s status as an expert in trust law was immaterial to

the admissibility of his affidavit, and Frost Bank’s suggestion otherwise is misplaced. See

TEX. CIV. PRAC. & REM. CODE ANN. § 27.006(a); TEX. R. CIV. P. 166a(f).

Frost Bank also argues that the trial court should have excluded Kenton’s affidavit

as conclusory. See In re Lipsky, 460 S.W.3d 579, 592 (Tex. 2015) (“Bare, baseless

opinions do not create fact questions, and neither are they a sufficient substitute for the

clear and specific evidence required to establish a prima facie case under the TCPA.”);

Padilla v. Metro. Transit Auth. of Harris Ctny., 497 S.W.3d 78, 85 (Tex. App.—Houston

[14th Dist.] 2016, no pet.) (“Affidavits containing conclusory statements that fail to provide

the underlying facts supporting those conclusions are not proper summary judgment

evidence.” (citing Nguyen v. Citibank, N.A., 403 S.W.3d 927, 931 (Tex. App.—Houston

[14th Dist.] 2013, pet. denied))). Contrary to Frost Bank’s assertion, Kenton’s affidavit

provides several factual examples to support his conclusion that Frost Bank breached its

fiduciary duties to the Beneficiaries. We overrule Frost Bank’s sub-issue regarding the

admissibility of Kenton’s affidavit.

B. Tranbarger’s Affidavit & Other Evidence

Frost Bank contends that Tranbarger’s affidavit was irrelevant because it focused

solely on Raymond James’s alleged mismanagement of the Trust estate before Frost

Bank became the successor corporate trustee. See TEX. R. EVID. 401. Frost Bank also

complains that the Beneficiaries are attempting to backfill evidentiary gaps in the motion

to dismiss record by asking us to consider evidence from the prior summary judgment

record. In particular, the Beneficiaries have directed us to email correspondence from

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Kenton to Frost Bank’s counsel requesting information related to Raymond James’s term

as corporate trustee. The Beneficiaries state in their brief that Tranbarger’s affidavit and

the emails only support their “obstruction” claim against Frost Bank. In other words, the

Beneficiaries acknowledge that they are not relying on this evidence to establish their

“waste” claims.

We have already concluded that the Act does not apply to the Beneficiaries’

“obstruction” claim. Accordingly, we do not reach these evidentiary objections because

they are immaterial to the disposition of this appeal. See TEX. R. APP. P. 44.1(a) (“No

judgment may be reversed on appeal on the ground that the trial court made an error of

law unless the court of appeals concludes that the error complained of: (1) probably

caused the rendition of an improper judgment; or (2) probably prevented the appellant

from properly presenting the case to the court of appeals.”), 47.1 (“The court of appeals

must hand down a written opinion that is as brief as practicable but that addresses every

issue raised and necessary to final disposition of the appeal.”).

V. CLEAR & SPECIFIC EVIDENCE

The burden shifted to the Beneficiaries to establish by clear and specific evidence

a prima facie case for each essential element of their “waste” claims. See TEX. CIV. PRAC.

& REM. CODE ANN. § 27.005(c). Even if they satisfied that burden, the trial court was

required to dismiss the relevant claims if Frost Bank established an affirmative defense

or other grounds on which it was entitled to judgment as a matter of law. See id.

§ 27.005(d). It is undisputed that, as trustee, Frost Bank owed a fiduciary duty to the

Beneficiaries. See Ditta, 298 S.W.3d at 191.

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We begin with the Beneficiaries’ claim that Frost Bank breached its fiduciary duty

by causing the Trust to incur unnecessary trustee fees. Although the Beneficiaries’

amended petition includes factual allegations in support of this claim, Kenton’s affidavit is

entirely silent on the matter. As such, the Beneficiaries failed to meet their prima facie

burden under the Act, and the trial court erred by failing to dismiss this claim. See Buzbee

v. Clear Channel Outdoor, LLC, 616 S.W.3d 14, 29 (Tex. App.—Houston [14th Dist.]

2020, no pet.) (“We therefore reject Buzbee’s argument that he may satisfy his prima

facie evidentiary burden under the TCPA by relying solely on the allegations in his

petition.”).

The Beneficiaries also alleged that Frost Bank’s various counterclaims caused the

Trust to incur unnecessary attorney fees because, prior to its discharge, Frost Bank was

billing the Trust for its attorney fees in the litigation. Kenton specifically avers in his

affidavit that Frost Bank “breached its fiduciary duties to the Trust by spending substantial

sums of Trust money to pay attorneys working” on Frost Bank’s behalf. Frost Bank does

not dispute the factual underpinning of the Beneficiaries’ claim—that the Trust was paying

Frost Bank’s attorney fees prior to the discharge. Instead, Frost Bank argues that it was

entitled to have this claim dismissed as a matter of law because the Trust vested it with

“final and binding” discretion to cause the Trust to incur professional fees related to the

administration of the Trust, including the employment of “attorneys” to “prosecute or

defend any suit.” The Trust expressly provides that such fees “shall be paid from the

Trust.”

However, these provisions did not absolve Frost Bank of its duty to exercise its

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discretionary powers in good faith and in the interest of the Beneficiaries. See TEX. PROP.

CODE ANN. § 113.029(a) (“Notwithstanding the breadth of discretion granted to a trustee

in the terms of the trust, including the use of terms such as ‘absolute,’ ‘sole,’ or

‘uncontrolled,’ the trustee shall exercise a discretionary power in good faith and in

accordance with the terms and purposes of the trust and the interests of the

beneficiaries.”); id. § 111.0035(b)(4)(B) (“The terms of a trust prevail over any provision

of this subtitle, except that the terms of a trust may not limit . . . a trustee’s duty . . . to act

in good faith and in accordance with the purposes of the trust . . . .”); see also Mendell v.

Scott, No. 01-20-00578-CV, 2023 WL 4712050, at *15 (Tex. App.—Houston [1st Dist.]

July 25, 2023, pet. denied) (mem. op.) (“[W]hile Texas law generally allows a trustee to

incur expenses that are necessary to carry out the purposes of the trust and allows the

trustee to be reimbursed from the trust estate for such expenses properly incurred, where

an expense is not properly incurred, the trustee is not entitled to reimbursement from the

trust estate.”); Stone v. King, No. 13-98-022-CV, 2000 WL 35729200, at *8 (Tex. App.—

Corpus Christi–Edinburg Nov. 30, 2000, pet. denied) (not designated for publication) (“A

trustee is not entitled to reimbursement for expenses that do not confer a benefit upon

the trust estate, such as those expenses related to litigation resulting from the fault of the

trustee.”); Restatement (Third) of Trusts: Power to Incur and Pay Expenses § 88 cmt. d

(AM. L. INST. 2007) (explaining that, although it can be a “complicated” question, a “trustee

is normally entitled to indemnification for reasonable attorney’s fees and other costs”

incurred in defending against unmeritorious claims of trustee misconduct). We therefore

look to the nature of each counterclaim and whether it was consistent with Frost Bank’s

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duty to act in “good faith and in accordance with the terms and purposes of the trust and

the interests of the beneficiaries.” See TEX. PROP. CODE ANN. § 113.029(a).

The record indicates that Frost Bank acted in good faith and for the benefit of the

Beneficiaries when it filed its counterclaims asking the trial court to modify the Trust to

allow for the appointment of an individual successor trustee, to accept its resignation and

discharge it as trustee, and to appoint an individual successor trustee under the modified

terms of the Trust. See id. §§ 112.054(a)(2) (“On the petition of a trustee or a beneficiary,

a court may order that the trustee be changed . . . [and] that the terms of the trust be

modified . . . if . . . because of circumstances not known to or anticipated by the settlor,

the order will further the purposes of the trust . . . .”), 113.081(b) (“The court may accept

a trustee’s resignation and discharge the trustee from the trust on the terms and

conditions necessary to protect the rights of other interested persons.”), 113.083(a) (“If

for any reason a successor is not selected under the terms of the trust instrument, a court

may and on petition of any interested person shall appoint a successor in whom the trust

shall vest.”). It is undisputed that after Frost Bank sent its resignation notice, there was a

continuing need for administration of the Trust (primarily, to pursue claims against the

former trustees); that Glenn was unwilling or incapable of serving as an individual

successor trustee; that the Trust therefore required a successor corporate trustee to serve

as the sole trustee; and that the Beneficiaries were unable to secure a willing corporate

trustee within thirty days of the notice. Under these circumstances, the Trust specifically

contemplated that it would be necessary for “a court of competent jurisdiction” to appoint

a successor corporate trustee “at the expense of the trust estate.” With no corporate

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trustee available, Frost Bank sought the next best remedy—judicial modification of the

trust to allow for the appointment of an individual successor trustee. See id.

§ 112.054(a)(2).

Importantly, the relief that Frost Bank prayed for was consistent with the

Beneficiaries’ wishes, which was for Kenton to serve as the individual successor trustee.

And contrary to their suggestion, the Beneficiaries did not have authority to independently

modify the Trust and appoint Kenton as the individual successor trustee. The Texas Trust

Code grants a settlor, but not a beneficiary, the discretionary authority to “modify or

amend a trust that is revocable.” Id. § 112.051(b). Naturally, Turrentine reserved this right

exclusively for herself in the Trust instrument. Thus, because Turrentine did not anticipate

the circumstances that occurred after her death, judicial modification was the only way

forward for the Beneficiaries. See id. § 112.054(a)(2).

Notably, the Beneficiaries had standing to bring the same claims but never did so.

See id. §§ 112.054(a)(2), 113.081(b), 113.083(a). With the Beneficiaries unwilling to act,

Frost Bank took the lead by filing these counterclaims that sought to accommodate the

Beneficiaries’ need to extend the administration of the Trust well beyond Turrentine’s

death in 2018. Frost Bank then promptly moved for summary judgment, but the trial court

was apparently reluctant to appoint Kenton as trustee, instructing the parties “to find a

successor trustee” and ordering Frost Bank to “remain as successor trustee until that

time.” Eighteen months after Frost Bank filed its counterclaims and largely due to its

efforts, the trial court finally approved Kenton as the individual successor trustee. 7 To be

7 Curiously, the trial court did not modify the terms of the Trust when it appointed Kenton, even

though such relief was appropriate under the Texas Trust Code and compelled by the necessities of the
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clear, the relief the trial court granted was based exclusively on Frost Bank’s pleadings

because the Beneficiaries never filed a pleading asking the trial court to appoint Kenton

as the successor trustee. See TEX. R. CIV. P. 301. We conclude that the Beneficiaries

failed to establish a prima facie case for their claim that Frost Bank caused the Trust to

incur unnecessary attorney fees in bringing these counterclaims. See TEX. CIV. PRAC. &

REM. CODE ANN. § 27.005(c).

The Beneficiaries argue that Frost Bank’s request for a declaration “that [it] has not

breached its fiduciary duties during its term as Successor Trustee of the Trust” could not

have been brought in good faith because, as Kenton stated in his affidavit, such a

declaration is necessarily adverse to their interests and only benefits Frost Bank. 8

According to the Beneficiaries, this immutable fact is sufficient to establish a prima facie

claim that Frost Bank caused the Trust to incur improper attorney fees in bringing this

counterclaim against them. We generally agree.

Frost Bank does not dispute that its counterclaim for declaratory relief is self-

serving. It relies instead on its discretionary authority under the Trust to charge the Trust

for professional fees related to the administration of the Trust. But as we have already

explained, the Trust instrument does not supersede Frost Bank’s statutory duty to act in

good faith and in the interest of the Beneficiaries. See TEX. PROP. CODE ANN.

§ 113.029(a). We hold that the Beneficiaries have satisfied their prima facia burden with

case.

8 Given its breadth, we construe this request for a declaratory judgment as encompassing Frost

Bank’s more specific request for a declaration that “Frost Bank is not under any duty or responsibility to
audit or review the actions or accountings of any predecessor Trustee of the Trust, and that Frost Bank is
expressly relieved and discharged from any liability or responsibility from any actions or failure to act of
such predecessor.”
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respect to this particular “waste” claim and that Frost Bank failed to otherwise prove its

entitlement to judgment as a matter of law. See TEX. CIV. PRAC. & REM. CODE ANN.

§ 27.005(c), (d).

VI. CONCLUSION

We affirm the trial court’s order with respect to the Beneficiaries’ breach of fiduciary

claims for failure to “advise and assist,” “obstruction,” and “waste” related to Frost Bank’s

declaratory judgment action. We reverse the trial court’s order with respect to the

Beneficiaries’ breach of fiduciary claims based on the theory that Frost Bank caused the

Trust to incur unnecessary trustee and attorney fees by bringing counterclaims related to

the judicial appointment of an individual successor trustee. We remand to the trial court

with instructions to enter an amended order and to conduct any other necessary

proceedings consistent with this memorandum opinion. Finally, for those legal actions

that are being dismissed, the trial court is instructed to award Frost Bank its “court costs

and reasonable attorney’s fees incurred in defending against the legal action.” Id.

§ 27.009(a)(1).

JENNY CRON
Justice

Delivered and filed on the
11th day of December, 2025.

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