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

Summary

The Texas Thirteenth Court of Appeals reviewed Frost Bank’s interlocutory appeal from the denial of its motion to dismiss under the Texas Citizens Participation Act. The court held that the TCPA applied to the beneficiaries’ claims concerning allegedly unnecessary attorney and trustee fees, but not to claims involving advice about benefits or alleged obstruction of claims against a predecessor trustee. It further held that the beneficiaries failed to present clear and specific evidence supporting their claim concerning trustee fees, while concluding that their attorney-fee claim was not defeated as a matter of law on the record presented.

Holdings

1. The TCPA applies to the beneficiaries' claims that Frost Bank caused the trust to incur unnecessary attorney and trustee fees by filing counterclaims related to judicial modification and appointment of a successor trustee, because those claims were based on or in response to Frost Bank's exercise of the right to petition.
2. The TCPA does not apply to the beneficiaries' claims that Frost Bank failed to advise Glenn about Medicare and Social Security benefits or failed to supervise or review Raymond James's conduct.
3. The beneficiaries failed to establish by clear and specific evidence a prima facie case that Frost Bank caused the trust to incur unnecessary trustee fees.
4. The beneficiaries failed to establish a prima facie case that Frost Bank caused unnecessary attorney fees by filing counterclaims seeking judicial modification, resignation, discharge, and appointment of an individual successor trustee.
5. The beneficiaries established a prima facie claim that Frost Bank breached its fiduciary duty by causing the trust to incur attorney fees for a self-serving declaratory judgment that Frost Bank had not breached its fiduciary duties, and Frost Bank did not establish entitlement to judgment as a matter of law.
6. The trial court did not abuse its discretion by refusing to exclude Kenton McDonald's affidavit as improper expert testimony or conclusory evidence.
7. The court did not reach Frost Bank's objections to Tranbarger's affidavit or evidence from the prior summary-judgment record because the evidence was immaterial to the disposition.

Questions Presented

1. Whether the beneficiaries' breach-of-fiduciary-duty claims were based on or in response to Frost Bank's exercise of its right to petition under the TCPA.
2. Whether the beneficiaries presented clear and specific evidence establishing a prima facie case for their claims that Frost Bank caused unnecessary trustee and attorney fees.
3. Whether Frost Bank established entitlement to judgment as a matter of law based on the trust's provisions authorizing professional fees and litigation expenses.
4. Whether Kenton McDonald's affidavit was inadmissible as improper expert testimony or conclusory evidence.
5. Whether the court should consider Tranbarger's affidavit and evidence from a prior summary-judgment record.

Disposition

reversed_and_remanded