In this interlocutory appeal, Frost Bank contended the TC erred in denying its motion to dismiss under the Texas Citizens Participation Act (TCPA).
Frost Bank v. Michele Glenn, Individually, Perry Hiller, Individually and as Duly Appointed Administrator of the Estate of Jo Ann Turrentine, Mark McDonald, Individually, and Patrick McDonald, Individually (No. 13-23-00595-CV; December 11, 2025) arose over a trust dispute. In 2007, Jo Ann Turrentine created the Jo Ann Turrentine Revocable Living Trust. Turrentine directed the corpus of the Trust to be distributed to her daughter, Glenn, and her grandchildren, Hillier, Patrick, and Mark, upon her death. Turrentine was the sole trustee, and the Trust appointed Raymond James Trust Company West, and later Raymond James Trust, N.A., as a corporate trustee. Raymond James and Turrentine operated as co-trustees.
After Turrentine’s death in 2018, Frost Bank became the corporate trustee for the Trust, replacing Raymond James. The terms of the trust stated that the only person able to succeed Turrentine as an individual co-trustee washis daughter, Glenn. However, Glenn failed to serve, which resulted in Frost Bank becoming the sole trustee. Additionally, due to Glenn’s failure to serve, any trustee after Frost Bank was required to be a corporate trustee. In April 2020, the beneficiaries of the trust filed suit against Raymond James amd Frost Bank for failure to provide them with an accounting of the trust. Additionally, the beneficiaries brought claims against Raymond James for breach of fiduciary duty and mismanagement of the trust estate. In September of the same year, Frost Bank provided a notice of intent to resign to the Beneficiaries and requested that they find a qualifying successor trustee within thirty days. Consistent with the trust, if a successor was not found, the trust required “a court of competent jurisdiction to appoint a successor corporate trustee at the expense of the estate.”
In December, Frost Bank filed its “Counterclaim for Judicial Modification of Trust, Appointment of Successor Trustee, and Declaratory Judgment,” alleging that the beneficiaries were unable to find a successor corporate trustee, and therefore the trust must be amended to allow for the appointment of an individual successor trustee. At the same time, Frost Bank asked the TC to accept its resignation and appoint a new individual successor under the newly modified terms of the trust. Frost Bank further asked for a judicial discharge and judgment declaring that it did not breach its fiduciary duty. Most importantly, Frost Bank 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, under the Texas Uniform Declaratory Judgement Act and the Texas Trust Code, Frost Bank sought reasonable attorney fees and costs.
Frost Bank filed a motion for summary judgment on its counterclaims and the Beneficiaries’ request for an accounting. In October 2021, the trial court granted Frost Bank’s summary judgment in part, finding that “Frost Bank has given notice of its resignation per the Trust Agreement,” but the motion was otherwise denied. The TC instructed the parties to find a successor trustee, and in the meantime, Frost Bank was to remain as trustee. Many months later, the trial court removed Frost Bank as a corporate trustee and appointed Kenton McDonald as the individual successor trustee. In August 2023, the beneficiaries amended their petition against Frost Bank, adding claims for breach of fiduciary duty. The beneficiaries allege that Frost Bank wasted trust assets, failed to advise Glenn about Medicare and social security benefits, and obstructed the beneficiaries’ claims against Raymond James. Frost Bank argued that the beneficiaries’ breach of fiduciary duties claim was “based exclusively on Frost Bank’s exercise of the right to petition.” Therefore, Frost Bank moved to dismiss under the TCPA. The beneficiaries filed a response claiming the TCPA did not apply because Frost Bank could not prove that “the [B]eneficiaries’ lawsuit is in response to Frost’s right to free speech.” Additionally, the beneficiaries argued that Frost “breached its fiduciary duty by burdening the [B]eneficiaries with ongoing, excessive attorneys’ fees used as leverage to obtain a release from liability with prejudice for Frost Bank.” The trial court denied Frost’s TCPA motion to dismiss. Frost sought interlocutory relief.
In an opinion by Justice Cron, the court of appeals affirmed in part and reversed in part. The beneficiaries alleged that Frost breached its fiduciary duty by causing the trust to incur unnecessary attorney and trustee fees by asking the court to modify the trust and not accepting the beneficiaries’ nonjudicial amendment o fthe trust, i.e. Frost didn’t resign as trustee until it maximized its trustee fees to the greatest possible extent. When Frost counterclaimed in response, it invoked the TCPA’s protection of the right to petition through filing a legal action “based on or in response to” the beneficiaries’ waste claim. But as to other aspects of the beneficiaries’ breach of fiduciary duty claims, including failure to assist Glenn with social security and Medicare benefits and obstruction of their claims against Raymond James, the TCPA did not apply because Frost’s alleged conduct took place outside the context of the lawsuit and solely concerned private communications unrelated to a judicial proceeding. The trial court, consequently, did not err by denying Frost’s motion to dismiss the beneficiaries’ breach of fiduciary claims for failure to “advise and assist” and “obstruction.”
Turning to whether the beneficiaries met their prima facie burden on their waste claims, the court had to decide what evidence was properly before the trial court. Frost argued that the trial court should have excluded two of the beneficiaries’ affidavits as improper expert testimony, conclusory, and irrelevant. Frost further complained that the beneficiaries had improperly cited evidence in their appellate brief and did not attach the evidence to their response or otherwise ask the trial court to consider it in relation to the motion to dismiss. As to the affidavit offered by an estate attorney opining that Frost breached its duty, the court concluded that the affiant established his personal knowledge through his position as the successor trustee familiar with Frost’s actions with regard to the trust. Whether he could be regarded as an “expert” in trust law was beside the point, since he clearly established competence based on personal knowledge. The second affiant opined as to Raymond James’s alleged mismanagement of the trust prior to Frost becoming trustee and whether Frost obstructed the beneficiaries’ claims against James. But since the court already determined that the TCPA didn’t apply to the waste claims, it didn’t reach Frost’s evidentiary objection to this evidence.
So did the beneficiaries establish their “waste” claim by clear and specific evidence, as required by the TCPA? No. In fact, they produced no evidence supporting his claim, so the trial court erred by not dismissing it. The beneficiaries further alleged that Frost incurred unnecessary attorney’s fees by drawing out the litigation. Frost argued that the trust documents gave it “final and binding” discretion to cause the trust to incur professional fees related to trust administration, including legal defense costs. Even so, the court observed, Frost still had an obligation to the beneficiaries to use its discretionary powers in good faith and in their interest. Looking to the record, the court concluded that Frost acted in good faith and for the beneficiaries’ benefit when it filed its counterclaims asking the trial court to modify the trust to allow appointment of an individual successor trustee, to accept its resignation and discharge it as trustee, and to appoint an individual successor. Indeed, the trust specifically contemplated that a court of competent jurisdiction should appoint a successor if the beneficiaries couldn’t find a willing corporate trustee within 30 days of Frost’s notice of resignation (which they didn’t). It turned out that the successor, Kenton McDonald, was who the beneficiaries wanted anyway, and, in any event, the beneficiaries didn’t have authority under the trust to independently modify it to appoint McDonald without judicial intervention. Frost was well within its rights to proceed this way. The beneficiaries thus failed to establish a prima facie case for their waste claim as to attorney’s fees. But Frost’s counterclaim for a declaration that it didn’t breach its fiduciary duty went too far as to whether it overcharged the trust for professional fees. The trial court did not err in denying Frost’s TCPA motion to dismiss that claim.
The court remanded to the trial court with instructions to award Frost its costs and attorney’s fees incurred in defending the beneficiaries’ breach of fiduciary claims based on Frost’s alleged running up attorney’s fees by bringing counterclaims related to judicial appointment of the successor trustee.
TCJL Legal Intern George E. Christian researched and prepared the first draft of this article.
