NO. 07-02-0460 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L B JANUA RY 2, 2004

______________________________ JAME S BER GMAN, Appellant

v. BER GMA N-DA

VIS ON-WEBSTE R CHA RITAB LE TRU ST, GENE B USH, trustee, and CARO LYN NIXON, trustee, Appellees

_________________________________ FROM THE 41 1th DIST RICT COURT OF POLK COUNT Y; NO. CIV 19,791; HON. JACK R. KING, PRES IDING

_______________________________ Memor andum Opi

nion

_______________________________ Before JOHNSON, C.J., and QUINN and CAMPBELL, JJ. Jam es Bergm an (Jam es) appeals from a final judgm entremov ing him as a trustee and modifying the terms of the Bergman-Davison-W ebster Chari table Tr ust (Trust). F ive issues are presented for our rev iew . H oweve r, w

e ne ed o nly a ddr

essthefirs t si nceit is dispositive. Therein, Jame s asserts that noevidence, or alternat ively , in sufficient2

evidence supports the trial court’s dec ision to remov e him as trustee of the Trust. W e affirm the d ecision of the trial court. Removal as Trustee Statute provides a trial court various grounds on w hich to remove a trustee. That app licab le here concerns re moval for “cause.” That i s, a trustee ma y be rem oved “in the discretion of the court, for . . . caus e.” T EX . P R OP . C ODE A NN . §113.082(a)(4) (Vernon Supp. 2004). Whi le the ill will or hostility of a trustee is ge n era lly in suf fici ent cau se, it becom es so if it is determined that the “hostil ity, ill will , or other factors haveaffected the trusteeso tha t he ca nnot pro perly serve in his cap acity.” Aki n v. Dahl , 661 S.W.2d 911, 913-14 (Tex. 1983); Lee v. Lee , 47 S.W.3d 767, 792 (Tex. App.--Houston [1st Dist.] 2001, pet. denied). In other words, if the evidence illustrates that the hostility “does or will affect” the trustee’s perform ance of his duties, then cause exists for his rem oval. Id. Additio nall y, the hostility to whi ch we ref er isnot lim ited only

to s itua tion s w her

ein the trustee’s perform ance is affected. It alsoincl ude s th osew her ein it impedes t he proper performance of the trust, espe cially if the trustee made the subject ma tter of

the suit is at fault. Restatement (Thi rd) of the Law of Trusts , §37, co mm ent e( 1) (20 03); A. Scott & W

. Fratcher, The Law of Trusts §107, p . 111 (4t h ed. 19 87). Next, ithas been the rule for som e time that the decision regarding whether or not to remove a trustee is not one that implicates the tr i al co ur t’ s d i sc re ti on . A s t he Su pr eme Court said in Akin , the ap plicable stat utory provisions did not makeremoval a discret ionary3

act. Aki

n v. Dahl , 661 S.W.2d at 913. However, the legislature recently amended §113.082(a) of the Property C ode. The provision now states that “. . . on the petition of an interested person and after hearing, a court m ay, in i ts dis cretion , rem ove a trustee” upon the enum erated grounds. T EX . P ROP . C ODE A NN . §113.082(a) (em phasis added). The italici zed portion of the statutewas no n- ex i st en t wh en th e S up re me Court decided Akin

. Given the plain meaning of the phrase, it is clear that the legislature now want s the trial court to exercise its discretion w hen determ ining w hether t o remove a trustee. S o, the statem entin Akin that the decision does not implicate the trial court’s discretion has been overruled by statute. Question does arise, however, regarding whether the am endme ntto §113.082(a) applies to the case at ba r. Indeed, it is clear that the suit w

as filed long before Septem ber 1, 2003, the effecti ve date of the amendment. So too is it recogni ze d that statut es and the ir am endme nts generally have prospective effect; t hat is, the am endme n ts do not no rma lly operate retroactively. Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212, 219 (Te x. 200 2). Ye t, t hat is n ot t rue w hen thesta tute or am end m ent

is procedural or rem edial in nature. Id. Furtherm ore, a change that affe cts the power of t he court to act is one involving procedure. Id. a t 22 0 (h oldin g jurisdictional statutes to be procedural because they “speak to the court’s power rather t han to the parties’ rights or obligat ions”). Next , it would seemthat an am endme nt vesting the trial court w ith th e “discretion” to m ake a particular ruling would be of that ilk. This is so because the ame nd me nt affects the power of th e court to act over a given mat ter as opposed to the1 Giv en that the decision m ust be aff irm ed if i t comport s with the law and enjoys the support of s ome ev idence, no longer are claims of l egal and factual insufficiency independent grounds of error. In re C .R.O. , 96 S.W .3d 442, 447 (Tex . App.--Am arill o 2002, no pet.); Crawford v. Hope , 898 S.W.2d 93 7, 940(Tex. App.- -Ama rillo1995, w rit denied). Instead , dispute abo ut the quantum of evi dence supporting a particul ar decision is s ubs umed into th e test of abus ed dis cretion. Crawford v. Hope , 898 S.W.2d at 9 40 -41

. 4 rights or obligations of

the parties. In other w ords, it e stablishesnot only the para m eters w ithin which the trial court must ma ke its decision but also the standard of review we utilize in determ ining whether the decision was correct. And, because it does, we conclude that the amendm ent to §113.082( a) is both pr ocedural and appli cable to the ap peal befor e us. Th u s, w het her

thetria l cou rt e rre d in r em ovin g Ja m es a s tr ustee d epe ndson whet her it abused its discretion. Next, a trial court abuses its discretion when it actswithout reference to any guiding rules and principles orwhen it actsarbitrarily and unreasonably. In reC.R.O. , 96 S.W.3d 442, 446 (Tex. Ap p.--Am arillo 2002, no pet.). That the decision may be different than the one we m ayhave reached had w e decided the m atter

in the first instance is not controlling. Id. Ins tea d, it

m ust be a ffir m ed if

itenjoys the support of law and some probative e vidence irrespe ctive of what

we m ay thinkof it. Id. at 446-47. 1 W ith that said, we turn to the issue before us. Upon the dea th of Se cre st Webster in 1995 the Trust arose. According to the instrument

creating i t, James and five other s were appo inted its t rustees . They w ere assigned the duty of disbursi ng the corpus and i ncome thereon “at such time, in such m ann er, and in such am ounts as they deem advisable, to provide scholarships or grants to worthy individuals to assist themin obtaining instruction or educat ion . . . . ” So too were5

theyauthorized to use th e trust as sets “for other purposes that will promote, assist and further the cultural, artistic, educational, literary, recreational, chari table and historical activities and facilities . . . [of] Livingston and Co rrigan, Tex as and P olk Count

y.” Though once harmonious, the trustee m eetings convened to fulfill these goals becam e less so over time, and according to the trial court, Jam es “figured prominently in m uch of the confusion and discord that occurred in the m eetings and prevented said board fromfunctioning in an orderly m anner.” For i ns ta nc e, se ve ra l wi tn es se s, who wer e a l so bo ar d me mb ers, testi fied that Jam es did not foll ow the m ajority’s vote. He also op ted and conti nued to tape reco rd trust e e meet ings despite the fact that a m ajority of the trustees disapproved of it. This act cast a chill upon the conversation of thetrus tees . A t l ea st on e wi tn es s s ta te d t ha t i t b ec ame “im pos sibleto have a decent conversation,” tha t thetap ing w as “ disr upt ive, ” an d th at it precluded the trustees from expressing “sensitive data or ideas . . . .” “You can’t express a devil ’s ad vo ca te typ e p os it io n . . . b ec au se some bo dy wil l t ak e t ha t o ut of con te xtand can be devastating to you, ” he opined. Additio nall y, tw

o w itne sse s de scr ibed an in sta ncew her ein Jam es s oug ht to us e his positi on as a trustee to fur ther his son’s i nterests. The incident involved James’ attem pt to induce them , through the use of a “[k]ind of threatening tone,” into approving sch olarship s to a set of young applicants. The latter apparently were children of an individual who had ajob for J ames ’ son. According to one trustee, Jam es told them that the father of the applicants had “‘a very good j ob that [Jam es’ son could] have if the .

. .6

[particularapplicants] get these scholarships

. ’” His son’s “‘w hole future depended on getting this job.’” And, though thetrustees did not vote on the appli cations, James’ conduct grew m ore “intolerable” thereafter, so testified a trustee. In another instance, trustees described how Jam es m adesta tem ents in an a ffid avit theybelieved to be false in effort to secure a restraining orderagainst them . The order was needed to prevent a sale of trust property with w hich Jame s disagreed. Several other witnesses described how J ames used profan ity and intimidation during the m eetings. So too did he threaten h is fellow truste es with su it if they did not agree with him. H e would becom e “hostile” and “rude” when the trus tees “don’t do w hat he wants to do right then . . . i f we di sa gr ee [d ]. ” W he n a sk ed i f s he fe l t t hr ea te ne d b y h i m, a trustee repl ied: “[h]e scares me . . . [h]e just gets so upset, and so viol ent . . . and it just gets w ors e an d w

ors e.” An oth er t est ified tha t Ja m es’ con duc t ca use d him

to lea ve a trustee m eeting. The environment was not one “in which trustees can work,” heopined. Itgave him

“a stom ach ache every tim e [he went ] to a m eeting.” And, that the en vironment wasnot conducive to the perform ance o f t rust duties was confirmed b y another trustee when she told the trial court thatthe m eetings were “not a very pleasant exp erience” and that it was no t possible to conduct trust bus iness under the circum stances. The foregoing litany of testimony provides some probati ve evidence up on which a tr ial court could reasonably conclude not only that J ames caused hostility and frictio n within the board meetings but al so that his conduct affec ted or impeded the operation of2 We recog nize tha t the office of trustee carries with it f id uci ary dut ie s. So too do we understand that

trustees are entitl ed to opinions independent f rom the other trustees and must v oice them when th e y b e li e ve something is wr ong. Yet , t hat does n ot e nti tl e th e di ssent in g i ndi v id ual to b eco m e so hostile orv iolent t hat the effect iv e operation of the trust is im peded. Persistence and persuasion are the characteristics to be inv oked to correct percei v ed error. Liti gation m ay also be an alternativ e. But, v iolence, hostility, profanity, or i nti m id ati on ar e not , esp eci al ly when t hey im pede tr ust p urp oses. 7 the Trust. Admittedly, James attem pted to justify his con duct at trial . Yet, his credi bili ty, like that of the other witnesses , was som ething the trial court, as factfinder, was entitled to assess. 2 And, that there may h ave been ot her evidence suggesting that his actions w ere legitimately m otivated does not alone entitle us to hold the trial court’s decision to remove him as an instance of abused discreti on. This i s so because discretion is not abused whe re the trial court bases its decisions on conflicting evidence. Davis v. Huey , 571 S.W.2d 859, 862 (Tex. 1978). So, as long as the ruling com ported with guiding principles and en jo ye d t he su pp or t o f s ome probative evidence, we cannot change it. That is the case here; so, w

e overrule Jam es’ first issue. Our having upheld the trial court’s decision to remove Jam es as trustee leavesno one else to com plain of its judgm ent. He can nolonger do so given that he now is neither a trustee nor beneficiary of the Trust. See Lemke v. Lemke , 9 29 S.W .2 d 6 62 , 6 64 (T ex. App.-- Fort

W orth 1996, writ denied). And, w hile other trustees were also rem oved, none of them appealed. Nor has any

ben efic iary

of t he t rus t pe rfe cte d an app eal. Consequently, the rem aining issues presented by Jam es are m oot. W e affirm thejudgm ent of the trial court.8 Brian Quinn Justice