1887483.1/SPSA/26517/0102/070115 NO. 04

– 14

– 00751

– CV
IN THE COURT OF APPEALS FOR THE FOURTH DISTRICT OF TEXAS SAN ANTONIO, TEXAS

JOSEFINA ALEXANDER GONZALEZ, ET AL, Appellants,

v. RAYMOND S. DE LEON II, ET AL, Appellees.

__________________________________________________________________

APPELLEE RAYMOND S. DE LEON’S RESPONSE TO APPELLANTS’ POST– SUBMISSION BRIEF

JUDITH R. BLAKEWAY State Bar No. 02434400 Judith.Blakeway@strasburger.com JAM ES MAVERICK MCNEEL State Bar No. 24035491 James.McNeel@strasburger.com LAURA C. MASON State Bar No. 24028227 Laura.Mason@strasburger.com 2301 Broadway San Antonio, Texas 78215 Telephone: (210) 250

- 6000 Facsimile: (210) 250

- 6100

ATTORNEYS FOR APPELLEE RAYMOND S. DE LEON II, TRUSTEE ACCEPTED 04-14-00751-CV FOURTH COURT OF APPEALS SAN ANTONIO, TEXAS 7/1/2015 2:41:33 PM KEITH HOTTLE CLERK1887483.1/SPSA/26517/0102/070115 2 Argument There are two independent reasons supporting the trial court's dismissal o f Appellants’ trust administration claims. First, Appellants have no standing to assert trust administration claims because they are not “affected by the administration” of the Family Trust. Second, the trial court correctly dismissed the trust administrat ion claims because Webb County Court at Law No. 2 had acquired dominant jurisdiction. Appellants never address the second basis. Thus, even if they had standing to bring trust administration claims

–– which is not conceded

–– the trial court correctly dismisse d those claims because of the prior pending action in County
Court at Law No. 2. Because either reason is a sufficient basis to affirm the trial court’s dismissal of the trust administration claims, it is not necessary for this Court
to reach the issue of standing. If the Court nevertheless decides to address the trust administration standing issue, Appellants had no standing to assert trust administration claims. Appellants were not affected by De Leon’s status as a limited partner in limited partnerships which they control by virtue of their control over the limited liability company that is the general partner of the partnerships. And they had no standing under the statute attached to their post submission brief, Texas Property Code Section
112.054. Un der Section 112.054, standing is limited to a trustee or beneficiary (“on the petition of a trustee or beneficiary a court may order that the trustee be changed,1887483.1/SPSA/26517/0102/070115 3

that the terms of the trust be modified. . . .”) T EX
. P ROP
. C ODE §112.054(a). So the
trial co urt correctly ruled that Appellants lacked standing. Management v. appointment. Appellants disclaim any intent to control the successor trustee, but they want to control who can become their partner because they want to maintain control of the partnership s. They want to assure that whoever is appointed will not interfere with their management of the partnerships. Voting interest. Appellants claim that they are affected by the trustee’s appointment because the trust has enough votes to prevent the other par tners from amending or terminating the partnership agreements. This is a spurious argument. Because they are in control, they have no desire to amend or terminate the partnerships. This is like saying, “the rich as well as the poor have the right to sle ep under bridges.” True, but why would they want to? Moreover, that the trust has a vote as a limited partner is insufficient to confer standing on other partners to challenge appointment of the trustee. Appellants have an interest in the partnership; they have no interest

–– pecuniary or otherwise

–– in the trust. Their purported interest in the trust is even more attenuated than the interests found insufficient in the cases cited at Appellee’s Brief pp. 13

– 14. If those parties do not have standing to sue , then neither do Appellants. Standing v. merits. It is ironic that Appellants base their claim to standing on their duty to see that the trust’s intent and partnership purposes are fulfilled. The very reason that Appellees sued is because Rocio Guerra an d her children, the only1887483.1/SPSA/26517/0102/070115 4

descendants of settlors Delfina and Josefina, and the intended beneficiaries of their bounty, have not received pro rata distributions from partnerships, of which they own 90 percent. It is also ironic that Appellants now make a d istinction between standing and merits, when their whole argument is premised on the assumption that De Leon’s appointment was void, which addresses the merits, which the trial court never reached because it found Appellants did not have standing. Appellan ts also claim that they had standing because they were ordered to produce books and records, which their partner indisputedly had a right to examine. If their theory of standing were correct, any entity subpoenaed to produce records pertaining to a trust

– – for example, financial institutions or accounting firms

–– would have standing to challenge a trustee’s appointment. Standing is not that broad. Effect of appointment. Finally, Appellants claim that they have standing because of the relief sought in the tr ustee’s derivative action. It is apparent that Appellants’ real interest is not only in controlling the process by which the trustee is selected, but also controlling the trustee himself, so that they can continue to use the partnerships for their own bene fit, depriving the intended beneficiaries of their
inheritance. None of this is to say that Appellants are without recourse. But their recourse is not to challenge the process by which the trustee was appointed but to bring their
trust administration cla ims in Webb County Court at Law No. 2, where the district1887483.1/SPSA/26517/0102/070115 5

court properly ordered that these claims be pursued. Allowing Appellants to bypass that court would circumvent the rulings of the county court, interfering with the jurisdiction of the court having dominant jurisdiction.
Conclusion The trial court correctly sustained the plea to the jurisdiction that Appellants lacked standing, ordered that trust administration claims must be brought in the pending actions in Webb County Court No. 2 and dismissed th e remaining claims.
Those orders should be affirmed.1887483.1/SPSA/26517/0102/070115 6 Respectfully submitted,
S TRASBURGER & P RICE , LLP By: /s/ Judith R. Blakeway J UDITH R. B LAKEWAY State Bar No. 12434400 J AMES M AVERICK M C N EEL State Bar No. 24035491 L AURA C. M ASON S tate Bar No. 24028227 2301 Broadway San Antonio, Texas 78215 Telephone: (210) 250

- 6000 Facsimile: (210) 250

- 6100
ATTORNEYS FOR APPELLEE RAYMOND S. DE LEON, II, TRUSTEE OF THE DELFINA & JOSEFINA ALEXANDER FAMILY TRUST

CERTIFICATE OF COMPLIANCE
In a ccordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this Response to Appellants’ Post

– Submission Brief contains no more than 827 words.

/s/ Judith R. Blakeway Judith R. Blakeway1887483.1/SPSA/26517/0102/070115 7 CERTIFICATE OF SERVICE
Pursuant to E

- Filing Standing Orde r, I certify that on July 1, 2015, I electronically filed the foregoing with the Clerk of Court using the EFile.TXCourts.gov electronic filing system which will send notification of such filing to the following: Robinson C. Ramsey State Bar No. 16523700 rramsey@langleybanack.com Joyce W. Moore State Bar No. 14357400 jwmoore@langleybanack.com Paula C. Boston State Bar No. 24089661 pboston@langleybanack.com Langley & Banack, Inc. 745 E. Mulberry, Ste. 900 San Antonio, Texas 78212

– 3166 Telephone: (210) 736

– 6600 Facsimile: (210) 735

– 6889 Attorneys for Appellants Jeffrey T. Knebel State Bar No. 11589000 Osborne, Helman, Knebel & Scott, LLP 301 Congress Ave., Suite 1910 Austin, TX 78701 Telephone: (512) 542

– 2015 Facsimile: (512) 541

– 2011 jtknebel@ohkslaw.com
Tom Bassler State Bar No. 01894300 Thomas G. Bassler, P.C. 306 W. Sunset, Suite 119 San Antonio, Texas 78209 Telephone: (210) 836

– 8885 Facsimile: (210) 826

– 2236 thomas@basslerlaw.com Jesus “Jesse” Guillen State Bar No. 24011090 1308 San Augustin Laredo, TX 78040 Telephon e: (956) 725

– 5899 Facsimile: (877) 874

– 6560 jguillen@guillenlawoffice.com Attorneys for Appellee Rocio Guerra

/s/ Judith R. Blakeway Judith R. Blakeway