In the

Court of Appeals

Second Appellate District of Texas

at Fort Worth ___________________________

No. 02-23-00104-CV

___________________________

On Appeal from Probate Court No. 2

Tarrant County, Texas

Trial Court No. 2021-PR03242-2A

Before Bassel, Wallach, and Walker, JJ.

Memorandum Opinion by Justice Wallach

IN THE ESTATE OF CLAUDE M. COOPER, JR., DECEASED
2

MEMORANDUM OPINION

This appeal arises from the probate court’s denial of the Texas Citizens 

Participation Act (TCPA) motion to dismiss filed by Appellants Mary Sue Cooper 

Huffman and Virginia Cooper Downes (collectively, the Trustees), who are cotrustees of a testamentary trust (the Trust) in favor of their now-deceased brother, 

Claude Cooper, Jr. Their motion sought dismissal of the breach-of-fiduciary-duty 

claims filed by Claude’s son, Appellee James Franklin Cooper. James’s claims are 

based on (1) Mary Sue’s withdrawing $100,000 from the Trust shortly before Claude’s 

death, allegedly to create a trust for Claude’s other child and (2) the Trustees’ filing 

two suits for declaratory relief regarding the proper distribution of trust assets. The

Trustees’ motion was overruled by operation of law.

On appeal, the Trustees argue in one issue with multiple subparts that the 

probate court erred by denying, either in whole or in part, the Trustees’ TCPA motion 

to dismiss James’s claims. From the record before this court, the TCPA applies to 

James’s claims against the Trustees, James did not produce prima facie evidence for 

most of his claims but did produce prima facie evidence of one of the claims, and the 

Trustees negated as a matter of law the claims against Virginia and all but one claim 

against Mary Sue. Accordingly, we reverse the trial court’s denial of the TCPA motion 

as to all claims against Virginia and all but one claim against Mary Sue, but we affirm 

the trial court’s denial of the motion as to the claim against Mary Sue based on her 

withdrawing $100,000 from the Trust.
3

Background

I. The Trust

The Trust was created in the will of Ruth Messer Cooper, a lifelong resident of 

Alabama. The will divided Ruth’s assets among her three children: Mary Sue, Virginia, 

and Claude. Claude’s share was placed in the Trust, and Mary Sue and Virginia were 

named as trustees. Ruth’s will gave Claude the power to appoint in his will who would 

receive the Trust’s assets upon his death. The will further provided that if Claude did 

not exercise the power of appointment, the Trustees were to distribute the Trust’s 

assets per stirpes to Claude’s descendants. At the time of his death, Claude had two 

children: James and his sister Rachel.

II. Claude’s Will and Death

Claude executed a will in 2019. The will left nothing to Rachel but did not 

expressly mention the Trust. Claude died on August 21, 2021. Rachel was present at 

his death, but James was not.

According to Mary Sue, shortly before Claude’s death, she asked him if he 

wanted to “do something for Rachel,” and Claude said yes. Mary Sue then withdrew 

$100,000 from the Trust and placed it in a bank account “with the expectation that 

[she] would work out the details of a trust for Rachel.”

Claude’s funeral was held on September 18. On September 20, James sent Mary 

Sue an email in which he thanked her for putting together the memorial service for his 

father and asked her to respond to an attached email, which his attorney had sent him 
4 

ten days before, regarding the withdrawn funds.1 The attorney’s email stated that 

Mary Sue had “stole[n] from [Claude’s] assets” and would be held civilly and 

criminally liable: 

I find it most disturbing that you mentioned that [Mary] Sue removed 

$100,000.00 from the trust account for the benefit of Rachel. First of all, 

the trust for your father was set up to provide for your father during his 

lifetime, the trust assets belonged to your father only. The trust did not 

list you or your sister as beneficiaries. If [Mary] Sue did remove money 

from the trust, she is in violation of the Texas Trust Code and will be 

held liable. If [Mary] Sue removed money from the estate after your 

father’s death, she is also liable under the Texas Probate Code. The 

money must be placed back into the trust account, or the Judge could 

order a bench warrant for your aunt’s arrest, either way you look at it,

[Mary] Sue stole from your father’s assets. 

[Mary] Sue is in violation of her fiduciary duty to your father and 

the penalty could be severe. [Mary] Sue can be prosecuted both civilly 

and criminally since she is a Trustee. 

Remember, your father disinherited his daughter in his Will and 

he never revoked his Will.

Please forward this email to [Mary] Sue or have her attorney 

contact me. [Emphases added.]

The Trustees’ attorney in Alabama sent a letter to James’s attorney responding 

to the email. The letter stated that the funds had been returned to the Trust, with 

interest, and it enclosed the August and September financial statements for the Trust.

The letter further stated that the Trustees’ attorney and their Texas counsel had 

reviewed Claude’s will and did not believe that it exercised the power of appointment, 

1

James’s brief states that his demand for the money’s return occurred before 

Claude’s death, but the record does not support this assertion.
5

and consequently, the Trustees were proposing a distribution plan. See Ala. Code § 19-

3B-817(a). Under that plan, the Trustees would distribute half of the Trust’s assets to 

James and Rachel before December 2021 and would hold the remainder in the trust 

account until filing the Trust’s final income tax return and paying all trust expenses.

See id. § 19-3B-817(b). They also asked James and Rachel to sign a release waiving a 

formal accounting and releasing the Trustees from liability regarding the Trust’s 

management.

2 After receiving the release, the Trustees planned to distribute the 

remainder of the Trust’s assets after paying expenses and filing the Trust’s tax returns.

James’s attorney responded with a letter that the Trustees’ attorney interpreted 

as an objection to the distribution plan. The attorneys exchanged letters disagreeing 

about whether Claude had exercised a power of appointment in his will and whether

the Trust’s assets belonged to Claude’s estate.

III. The Trustees’ Litigation

After James filed an application to probate Claude’s will, the Trustees filed a 

plea in intervention. In their plea, they asked the trial court for two declarations:

(1) Claude had not exercised the power of appointment over the Trust and 

(2) because Claude did not exercise the power of appointment, the assets in the Trust 

must be distributed per stirpes. They also requested attorney’s fees.

2

Such a release would not release a trustee from liability for a breach of duty if

at the time of its signing, the beneficiary “did not know of the material facts relating 

to the alleged breach and the trustee had actual knowledge of the facts relating to the 

alleged breach.” See Ala. Code § 19-3B-1009.
6

After severing the Trustees’ claims into a separate proceeding, the probate

court granted partial summary judgment for the Trustees, declaring that Claude had 

not exercised in his will the testamentary power of appointment granted to him in 

Ruth’s will. The trial court denied summary judgment on the Trustees’ second 

requested declaration that the Trust’s assets should be distributed per stirpes. The 

Trustees then nonsuited their second request for declaratory relief. Ten days after the 

Trustees nonsuited their second request, James filed a “Plea in Interevetion [sic] for 

Declaratory Relief and Request for Temporary Unjunction [sic],” requesting a 

declaratory judgment that the Trust had been terminated. Despite the trial court’s 

partial summary judgment, James also requested a declaration that Claude’s will had 

left the Trust’s assets to James.

A few days later, the Trustees filed a petition for declaratory judgment in 

Alabama. In that Alabama suit, the Trustees asked the Alabama trial court to 

determine the proper distribution of the Trust’s assets. They further asked the 

Alabama trial court to declare that the Trustees had not breached their fiduciary duties 

by filing their declaratory judgment actions and by Mary Sue’s withdrawal of funds.

The Trustees then moved for final judgment in their Texas suit, which the trial 

court granted in part. The trial court’s interlocutory judgment incorporated its 

previous summary judgment order declaring that Claude’s will had not exercised the 

power of appointment regarding the Trust, and it awarded the Trustees attorney’s 

fees.
7

IV. James’s Suit

Ten days after the trial court signed its interlocutory judgment, James filed

counterclaims in the Trustees’ Texas suit for breach of fiduciary duty against the

Trustees.3 James alleged that because of the $100,000 withdrawal from the Trust, he 

had been damaged by “thousands of dollars of fees” as well as “losses on the assets 

[that the Trustees had] sold to remove the funds.” James further alleged that the 

Trustees’ “theft” caused a conflict of interest such that when Claude died, the only 

“possible legitimate course of action to take assuming for the sake of argument that 

they are not completely disingenuous about the alleged conflict in the interpretation 

of Ruth and Claude’s Wills” was “to provide James with half of the [T]rust proceeds,”

to “interplead the other half of the funds into the registry of the Court,” and “to note 

that because of the complete conflict with them attempting to mitigate their past 

deeds, they can take no further role with regard to the half of the money that it could 

be argued [Rachel] had an interest in.”

James further contended that the Trustees had brought their declaratory 

judgment action to hide their withdrawal of funds and to withhold his share of the 

trust from him “in order to obtain litigation costs leverage over him.” He alleged that 

the Trustees had “improperly requested that [the Alabama trial court] give them 

another shot at” the declaratory relief that they had nonsuited in the Texas 

3

The record does not reflect the status of the Alabama suit involving the same 

issues.
8

proceeding. He claimed that he had suffered damages by the Trustees selling the 

Trust’s assets at a net loss and by “[l]ocking [him] into [s]tock losses he otherwise 

would not have incurred, by refusing to turn over ANY of his trust to him.”

The Trustees filed a TCPA motion to dismiss James’s counterclaims, asserting 

that James’s breach-of-fiduciary-duty claims arose from their exercise of their right to 

petition—specifically, their requests for declaratory relief in the probate court and in 

the separate petition that they had filed in Alabama. The Trustees attached exhibits to 

their motion, including a copy of Ruth’s will; a copy of Claude’s will; the Alabama 

petition; the email from James’s attorney that James had forwarded to Mary Sue 

shortly after Claude’s funeral; and letters between the Trustees’ attorney and James’s 

attorney showing their disagreement over whether Claude’s will had included or 

needed to include a power of appointment. They also attached Mary Sue’s affidavit in 

which she stated that she had withdrawn the $100,000 after Claude had said he 

wanted to do something for Rachel and after Mary Sue had “spoke[n] with James 

about it, and James said that he was okay with putting $100,000 in a trust for Rachel if

James could be the trustee.”

James filed a response to the TCPA motion. He asserted that the day before 

Claude died, the Trustees had “essentially stole[n] $100,000 from the [T]rust to give to 

one of their daughters to hold in trust for someone who indisputably had absolutely 

no right to the [sic] any of [the] funds, or any benefit from them, let alone to the 

completely mystifying sum of exactly $100,000.” He further alleged that “the Trustees’
9

actions have continued to lock [James] into equities in the Trust which are currently

suffering heavy losses at a time at which [James], considering his proximity to

retirement, would prefer to be more risk adverse.” Although he claimed that he had 

pled five separate breaches of fiduciary duty against the Trustees, his claims 

complained of only three acts by the Trustees—(1) the withdrawal of money from the 

Trust, (2) the Trustees’ pursuing declaratory relief in Texas rather than immediately

turning over at least half of the Trust’s assets to him, and (3) the Trustees pursuing 

declaratory relief in Alabama.

James attached three exhibits to his response: a copy of the trial court’s partial 

summary judgment order; the October 2021 letter from the Trustees’ Alabama

counsel stating that the $100,000 plus interest had been returned to the Trust and 

proposing a plan of distribution; and three pages from one of the Trust’s account

statements. The partial account statement revealed that in mid-August 2021, some of 

the securities held by the Trust had been sold, generating a little over $100,000, less 

fees incurred for the sales. One of the statement pages contained a handwritten note 

stating, “Cost Basic [sic] (Purchase Price) – Sale Amount = Loss: $63,911.37.” This 

referred to an entry on the statement regarding one of the securities that had been 

sold; the statement listed the sale amount as $24,200.38 and the cost basis as 

$88,111.75. The Trustees filed a reply asserting that all James’s claims, as pled, were 

predicated on the Trustees’ exercise of their right to petition for declaratory relief.
10

The trial court signed an order granting the TCPA motion in part, dismissing 

all the claims against Virginia and the claims against Mary Sue that arose from the 

Trustees’ filing suits in Texas and Alabama, and ordering that the Trustees and James 

submit attorney’s fees evidence. The same day, the trial court signed another order 

denying the TCPA motion in part and stating that the only breach-of-fiduciary-duty

claim remaining was the claim against Mary Sue regarding the withdrawal of funds, 

and “[a]ll other claims [were] dismissed per [the] contemporaneous order.” However, 

these orders were not signed until April 3, 2023. The trial court had held the TCPA 

hearing on February 28, 2023, and as a result, the TCPA motion had already been 

overruled by operation of law on March 30, 2023. See Tex. Civ. Prac. & Rem. Code 

Ann. §§ 27.005(a), 27.008(a). The Trustees filed this appeal from the denial of their 

motion.

Standard of Review and Burden of Proof

This court reviews a ruling on a TCPA motion to dismiss de novo. Beving v. 

Beadles, 563 S.W.3d 399, 404 (Tex. App.—Fort Worth 2018, pet. denied). The party 

moving for dismissal under the TCPA has the initial burden to demonstrate that the 

legal action to be dismissed “is based on or is in response to: (1) the party’s exercise 

of: (A) the right of free speech; (B) the right to petition; or (C) the right of association; 

or (2) the act of a party described by [Texas Civil Practice and Remedies Code]

Section 27.010(b).” Tex. Civ. Prac. & Rem. Code Ann. § 27.005. 
11

If the TCPA movant satisfies the burden to show the TCPA’s applicability, the 

opposing party may resist 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).

Even when the opposing party establishes a prima facie case, however, the TCPA 

movant will still be entitled to dismissal if the movant “establishes an affirmative 

defense or other grounds on which the moving party is entitled to judgment as a 

matter of law.” Id. § 27.005(d).

In determining whether a legal action should be dismissed under the TCPA, the 

trial court must consider evidence that a court could consider under Texas Civil 

Procedure Rule 166a and “supporting and opposing affidavits stating the facts on 

which the liability or defense is based.” See id. § 27.006(a); Stickland v. Schlegel, No. 02-

22-00281-CV, 2023 WL 8112889, at *19 (Tex. App.—Fort Worth Nov. 22, 2023, no 

pet.) (mem. op.). The court must also consider the pleadings, but pleadings “are not a 

substitute for clear and specific evidence of ‘each essential element of the claim in 

question.’” USA Lending Grp., Inc. v. Winstead PC, 669 S.W.3d 195, 200 n.13 (Tex. 

2023) (quoting In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015)).

Discussion

I. Standing and Capacity

As an initial matter, we address the Trustees’ contention that James lacks 

standing to sue them for breach of fiduciary duty. They argue that James cannot 

complain about any Trust transactions that occurred before Claude died because
12

before that time James was only a “potential future beneficiary” of the Trust and thus 

did not have an enforceable interest in the trust. That is, although they acknowledge

that he alleged that he suffered damages as a result of the Trustees’ conduct, they 

contend that he does not have the right to sue in his individual capacity about 

anything that happened while his interest in the Trust was contingent. They further 

contend that he does not have standing to sue as Claude’s executor because has not 

alleged any damages in that capacity. They raised this same complaint in the trial 

court.

We disagree. We first observe that the Trustees do not appear to challenge 

James’s standing in “the ‘proper, jurisdictional sense,’” which requires the plaintiff to 

allege a concrete, particularized injury in fact. See Herbig, Tr. of Welch Fam. Tr. C v. 

Welch, Tr. of Welch Manry Fam. Tr., No. 01-22-00080-CV, 2023 WL 4188074, at 

*4 (Tex. App.—Houston [1st Dist.] June 27, 2023, no pet.) (quoting Berry v. Berry, 

646 S.W.3d 516, 527 (Tex. 2022)); see also Heckman v. Williamson Cnty., 369 S.W.3d 137, 

154 (Tex. 2012) (setting out requirements of standing doctrine). To the extent that the

Trustees do challenge James’s standing, we are unpersuaded. The Trustees

acknowledge that James has claimed that Mary Sue’s withdrawal reduced the value of 

the Trust’s assets, and there is no dispute that he has an interest in at least some of 

those assets or that he had that interest at the time that he filed his breach-offiduciary-duty claims.
13

As we discuss below, Alabama law applies to the Trust’s administration. Under 

Alabama law, the Trustees’ complaint goes to capacity rather than standing. See Daily 

v. Esser, Nos. SC-2022-0672, SC-2022-0673, SC-2022-0992, 2023 WL 6324888, at 

*19–20 (Ala. Sept. 29, 2023) (discussing arguments that purported to challenge 

standing that in actuality related to other doctrines, such as capacity, that do not 

implicate the subject-matter jurisdiction of a trial court); see also Ex parte Skelton, 

275 So. 3d 144, 151 (Ala. 2018) (stating that the “doctrine of standing (particularly as a 

jurisdictional concept) has no application in this private-law case”); Norvell v. Norvell, 

275 So. 3d 497, 503–05 (Ala. 2018) (stating that question of whether plaintiff was the 

correct person to bring his claims was “a real-party-in-interest problem” rather than a 

standing problem). Our conclusion is the same applying Texas law. See Herbig, 

2023 WL 4188074, at *4 (determining the argument raised by the trustee in that 

case—that the plaintiff did not have standing to seek a declaratory judgment regarding 

a trust—was a matter of capacity, not of standing); see also Berry, 646 S.W.3d at

527 (noting that resolving question of whether unnamed trust beneficiary was within 

class of persons statutorily authorized to sue trustees for breach of duty “may overlap 

with, but does not necessarily implicate, questions of standing bearing on subjectmatter jurisdiction”). Although the question of James’s capacity to sue may overlap 

with questions of standing, the arguments asserted by the Trustees do not implicate 

“questions of standing bearing on subject-matter jurisdiction.” See Berry, 646 S.W.3d at 

527.
14

As for the question of capacity, we conclude that James is within the class of 

persons authorized to sue the Trustees. First, we reject the assertion that a trustee can 

never be sued by a contingent beneficiary. Alabama law provides remedies to 

beneficiaries affected by a trustee’s breach of duty, see Ala. Code §§ 19-3B-1001, 19-

3B-1002, and the term “beneficiary” includes anyone who “has a present or future 

beneficial interest in a trust, vested or contingent,” id. § 19-3B-103 (emphasis added).

Texas also allows a contingent or vested beneficiary to sue a trustee for breach of 

fiduciary duty. See Tex. Prop. Code Ann. §§ 111.004 (defining “beneficiary” and

“interested person”), 115.011(a) (authorizing any “interested person” to bring suit 

relating to trust administration); Berry, 646 S.W.3d at 527–28 (applying Texas Property 

Code Sections 111.004, 115.001, and 115.011 in analysis of whether contingent trust

beneficiary was authorized by statute to bring her breach-of-fiduciary-duty claims and

concluding that she was). Even at the time that Mary Sue transferred the money, 

James had a contingent interest in the Trust subject only to Claude’s power of 

appointment. See Berry, 646 S.W.3d at 529. Second, and more importantly, in this case 

regardless of whether the applicable laws or the terms of the Trust would have 

restricted James’s ability to sue the Trustees while Claude was alive, by the time that 

he did sue, his interest was no longer contingent. James now unquestionably has a 

right to at least a share of the Trust’s assets, and he contends that Mary Sue’s 

improper action reduced those assets. Accordingly, James was within the class of 
15

persons authorized to bring his claims. See Ala. Code §§ 19-3B-101, 19-3B-1001–02; 

Tex. Prop. Code Ann. §§ 111.004, 115.011(a); Berry, 646 S.W.3d at 527.

Although the Trustees cite Alabama law throughout their brief, they do not 

discuss Alabama law on the question of standing or capacity. The two Texas cases 

relied on by the Trustees pre-date Berry, do not mention Section 115.011 of the Texas 

Property Code, and are factually distinguishable. See Moody v. Moody, 613 S.W.3d 707, 

719 (Tex. App.—Houston [14th Dist.] 2020, pet. denied) (addressing whether an heir 

may sue to recover property belonging to an estate when the estate’s personal 

representative had declined to bring suit, and not discussing whether a trust’s 

beneficiary may sue a trustee for acts taken while the beneficiary’s interest was 

contingent); Davis v. Davis, 734 S.W.2d 707, 709 (Tex. App.—Houston [1st Dist.] 

1987, writ ref’d n.r.e.) (involving suit by a person who was not named as a beneficiary

of a trust of which his children were beneficiaries and who would have an interest in 

the trust only if one of his children died intestate).

In their reply brief, the Trustees argue that Section 115.011 does not authorize 

James to bring his suit because although that provision allows an “interested person”

such as a beneficiary to bring claims under Section 115.001, a claim under Section

115.001 does not include tort claims, and thus Section 115.011 does not authorize 

James to sue for breach of fiduciary duty. The Trustees do not, however, discuss Berry, 

in which the Texas Supreme Court applied Sections 115.001 and 115.011 in its 

analysis of whether a contingent trust beneficiary was within the class of persons
16

authorized to sue the trustee for breach of fiduciary duty. Berry, 646 S.W.3d at 527–30. 

We therefore disagree that those Property Code sections have no relevance to an 

analysis of who may sue a trustee for breach of fiduciary duty. Thus, even applying

Texas law, we conclude that James was authorized to bring his breach-of-fiduciaryduty claims. We reject the Trustees’ challenge to James’s standing and capacity.

II. Step One: The TCPA’s Applicability 

We begin our TCPA analysis by looking at whether the Trustees established the 

TCPA’s applicability. “Under the TCPA, the filing of a petition in a lawsuit is a 

communication in or pertaining to a judicial proceeding that implicates a party’s 

exercise of the right to petition.” Cass v. Hughes as Tr. of Jimmy Celtyn Hughes QTIP 

Marital Tr., No. 02-23-00122-CV, 2023 WL 6300593, at *5 (Tex. App.—Fort Worth 

Sept. 28, 2023, pet. denied) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann. 

§ 27.001(1), (4)). James’s petition alleged that the Trustees had breached their fiduciary 

duty by filing the declaratory judgment actions in Texas and Alabama, and those 

claims are therefore based on or are in response to the Trustees’ exercise of the right 

to petition. See Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001, 27.003. Thus, the TCPA 

applies to those claims.

Likewise, James’s claims based on the withdrawal of $100,000 are, as pled, also 

based on or in response to the Trustees’ exercise of the right to petition. James filed 

his breach-of-fiduciary-duty claims only after the Trustees filed their Alabama petition 

seeking a declaration regarding their performance of their duties. Further, as the 
17

Trustees point out, “In each of the substantive paragraphs of James’s pleadings that 

mention the $100,000 withdrawal, James explicitly ties his breach of fiduciary duty 

claim back to the fact that the Co-Trustees . . . [sought] declaratory relief.” For 

example, James pled that the Trustees filed the declaratory proceedings to hide the 

withdrawal, alleging that the Trustees had filed suit because “IF [the Trustees] could 

convince the eventual trier of fact that [Rachel] was going to get half of the [T]rust, 

they could certainly mitigate [their withdrawal] as simply being a ‘premature 

distribution.’” He further alleged that the Trustees intentionally filed suit without first 

disbursing half of the Trust’s assets to him in order to “obtain litigation costs leverage 

over him” and thereby “mitigat[e] their theft.” In other words, according to James’s

petition, the Trustees’ filing suit was a continuation of and cover-up of the theft. See

Hersh v. Tatum, 526 S.W.3d 462, 467 (Tex. 2017) (noting that the plaintiff’s petition is 

the best evidence of the nature of the plaintiff’s action); Newstream Roanoke 6.125, 

LLC v. Shore, No. 02-22-00506-CV, 2023 WL 5615871, at *4 (Tex. App.—Fort Worth 

Aug. 31, 2023, no pet.) (mem. op.) (stating that TCPA movant had shown TCPA’s 

applicability by showing that the claims against it were factually predicated on conduct 

that fell within TCPA’s scope). The TCPA therefore applies to the claims against the 

Trustees based on the theft. Having held that the TCPA applies to all of James’s 

claims, we proceed to the next step of the analysis.
18

III. Step Two: Prima Facie Case

Because the Trustees established that James’s claims are based on their 

assertion of the right to petition, we proceed to the second step of the analysis and 

determine whether James established a prima facie case by clear and convincing 

evidence.

To determine whether James made a prima facie case for his claims, we must 

first determine what law applies to the claims. Texas law governs the construction of 

Claude’s will. See Van Hoose v. Moore, 441 S.W.2d 597, 617 (Tex. App.—Amarillo 1969, 

writ ref’d n.r.e.). As for the Trust, the limited appellate record before this court

indicates that Ruth had lived in Alabama all her life and that the Trustees lived in 

Alabama and managed the Trust from there, and there is no indication that Ruth

owned any real property in Texas or that any Trust property is located in Texas. 

Accordingly, Alabama law governs Ruth’s will and the Trust’s administration. See

Crossland v. Dunham, 140 S.W.2d 1095, 1096 (Tex. 1940); Lanius v. Fletcher, 101 S.W. 

1076, 1077 (Tex. 1907); Wilson v. Smith, 373 S.W.2d 514, 517 (Tex. App.—San 

Antonio 1963, writ ref’d n.r.e.); see also Ala. Code § 19-3B-108(g); Hoglan v. Moore, 

122 So. 824, 828 (Ala. 1929). However, as noted throughout this opinion, on the 

matters discussed herein, Alabama law appears to be substantially the same as Texas 

law. 

Under Alabama law, like Texas law, a breach-of-fiduciary-duty claim requires 

proof of “(1) the existence of a fiduciary duty between the parties; (2) the breach of 
19

that duty; and (3) damages suffered as a result of the breach.” Regions Bank v. Lowrey, 

101 So. 3d 210, 219 (Ala. 2012); cf. Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App.—

Houston [14th Dist.] 2008, pet. denied) (setting out similar elements for breach of 

fiduciary duty under Texas law). As for the existence of a duty, Alabama law requires a 

trustee to “administer the trust solely in the interests of the beneficiaries.” Ala. Code 

§ 19-3B-802; see also Regions Bank, 101 So. 3d at 219 (“A trustee owes the beneficiaries 

of a trust the duty of loyalty, which requires the trustee to preserve trust assets and to

administer the trust solely in the interest of the beneficiaries.”); cf. Peek v. Mayfield, 

No. 02-22-00492-CV, 2023 WL 5967886, at *9 (Tex. App.—Fort Worth Sept. 14, 

2023, pet. denied) (mem. op.) (noting trustee’s duty of good faith, fair dealing, loyalty,

and fidelity to the trust’s beneficiaries). In this case, the trust instrument—Ruth’s 

will—required the Trustees to hold and administer trust property for Claude’s benefit. 

James alleged a breach of this duty by alleging that the Trustees had stolen trust

funds before Claude’s death, and James’s TCPA response established a prima facie 

case that the Trustees had breached their duty to preserve trust assets and administer 

the Trust solely for Claude’s benefit. James attached to his TCPA response a 

statement from a trust account showing the withdrawal of funds, thus confirming that 

shortly before Claude’s death, a little more than $100,000 had been withdrawn from 

the account. He also attached a letter to his attorney from the Trustees’ attorneys 

acknowledging that the funds had been withdrawn “for the benefit of Rachel.” The 

letter claimed that the withdrawal had been “to fulfill Claude’s wishes,” but it 
20

provided no more specific information about Claude’s alleged wishes or how the 

attorneys drafting the letter had any knowledge of those wishes. That is, the letter 

acknowledged a withdrawal of funds, did not provide enough facts to show how the 

withdrawal was for Claude’s benefit, and stated that the withdrawal was for the 

benefit of someone other than Claude. 

As for damages, at the least, the partial account statement attached to James’s 

TCPA response showed that the Trust had incurred “[c]ommissions/[t]rading fees” 

of $1,378.70 when Trust securities were sold to raise the $100,000. Accordingly, for 

James’s breach of duty claim predicated on the withdrawal of funds, he presented a 

prima facie case of the claim. See Ala. Code § 19-3B-1002 (providing that a trustee 

who commits a breach of trust is liable to beneficiaries for the greater of “(i) the 

amount required to restore the value of the trust property and trust distributions to 

what they would have been had the breach not occurred; or (ii) the profit the trustee 

made by reason of the breach”).

In their reply brief, the Trustees argue that the partial account statement was 

insufficient to show that the trading fees shown in the statement arose from Mary 

Sue’s actions, and they point out that the Trust instrument authorized them to sell 

securities and to employ and pay for investment advisors. However, the partial

account statement showed that the fees were incurred in sales of securities in midAugust 2021—less than a week before Claude died—and that those sales generated 

$107,914.16, less the fees. The Trustees’ TCPA motion acknowledged that Mary Sue 
21

had spoken to Claude about doing something for Rachel “[s]hortly before he passed 

away” on August 20, 2021 and that she withdrew the funds after that conversation.

This partial account statement was sufficient to make a prima facie case that the fees 

were incurred because securities held by the Trust were sold to generate the 

$100,000 for Rachel. The Trustees produced no controverting evidence establishing 

that the fees had been generated from unrelated sales. Thus, if Mary Sue’s selling of 

securities to fund a trust for Rachel was a breach of Mary Sue’s fiduciary duty, then 

the trading fees are damages resulting from that breach. In summary, James produced 

a prima facie case that Mary Sue’s withdrawal of funds for Rachel was a breach of the 

duty that a trustee owes to trust beneficiaries and that this breach resulted in damages.

As for James’s claim that the Trustees’ mere filing of their declaratory judgment 

actions constituted a breach of their duty, he did not support that claim with clear and 

specific evidence. The Trustees had a duty to wind up the Trust and distribute its 

assets to its beneficiaries upon the Trust’s termination, see id. § 19-3B-817(b), but first 

they had to determine who those beneficiaries were. Because they believed that 

Claude’s will did not exercise his power of appointment while James believed that it 

did, the Trustees sought a judicial declaration of the Trust’s beneficiaries. Texas 

provides a procedure for a trustee to obtain declaratory relief related to a will or trust:

A person interested as or through an executor or administrator, 

including . . . a trustee . . . may have a declaration of rights or legal 

relations in respect to the trust or estate:
22

(1) to ascertain any class of creditors, devisees, legatees, heirs, next 

of kin, or others;

(2) to direct the executors, administrators, or trustees to do or 

abstain from doing any particular act in their fiduciary capacity;

(3) to determine any question arising in the administration of the 

trust or estate, including questions of construction of wills and other 

writings; or

(4) to determine rights or legal relations of an independent 

executor or independent administrator regarding fiduciary fees and the 

settling of accounts.

Tex. Civ. Prac. & Rem. Code Ann. § 37.005. Alabama has a similar statute. See Ala. 

Code § 6-6-225; see also id. §§ 19-3B-201(c) (“A judicial proceeding involving a trust 

may relate to any matter involving the trust’s administration, including a request for 

instructions and an action to declare rights.”), 19-3B-816(a)(26) (providing that even 

after a trust’s termination, a trustee retains the powers appropriate for winding up the 

administration of the trust and distributing the trust property to the persons entitled 

to it).

4

4

Although Alabama substantive law applies to the Trust’s administration, other 

Texas courts have said that Texas’s Declaratory Judgments Act is procedural in nature 

and therefore applies to Texas suits even when applying the substantive law of 

another state. See, e.g., Man Indus. (India), Ltd. v. Midcontinent Express Pipeline, LLC, 

407 S.W.3d 342, 353 (Tex. App.—Houston [14th Dist.] 2013, pet. denied); cf. Tex. 

Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444 (Tex. 1993) (noting that 

Texas’s Declaratory Judgment Act is “merely a procedural device for deciding cases 

already within a court’s jurisdiction”). For purposes of our discussion, it does not 

matter which state’s declaratory judgment act applies to the Texas suit because either 

way, the Trustees were authorized to bring their suit.
23

Thus, the Trustees were authorized by statute to bring their Texas and Alabama 

suits to resolve a dispute with James over, among other issues, whether Claude’s will 

included a power of appointment and whether, under the Trust instrument, the 

Trust’s assets should be distributed per stirpes. Further, although James contends that 

the Trustees’ declaratory judgment actions were “completely unnecessary,” his 

petition acknowledged that Ruth’s will contained two terms that he viewed as 

conflicting with respect to the power of appointment issue; that he and the Trustees 

disagreed about the proper construction of Ruth’s will, Claude’s will, and the 

administration of the Trust, including how the Trustees should wind up the Trust; and 

that the disagreement existed before the Trustees filed suit and continued after. 

Further, several days before the Trustees filed their Alabama suit, James filed his own 

claim for declaratory relief regarding the proper disposition of the Trust’s assets, 

thereby recognizing that a dispute existed among the parties about the proper 

construction of Claude’s will and who the Trust’s beneficiaries were.

James argued in his petition that if the Trustees truly believed that a declaratory 

judgment action was necessary, they should have immediately provided him with half 

of the Trust’s assets and interpled the other half of the funds “so that any contesting 

parties could, if necessary, bring a cause of action to interpret [Ruth’s] Will.” He 

contended that by not following that course of action, they breached their fiduciary 

duty. But bringing suit for declarations related to Ruth’s and Claude’s wills is exactly 

what the Trustees did, and James’s argument about giving him half of the Trust’s 
24

assets upfront ignores the fact that if the Trustees succeeded in their action, they

could be awarded attorney’s fees. See Ala. Code §§ 6-6-231, 19-3B-709; MacKenzie v. 

First Ala. Bank, 598 So. 2d 1367, 1371 (Ala. 1992) (stating that the trial court’s

authority to render a declaratory judgment under Section 6-6-225 included the 

authority under Section 6-6-231 “to ‘make such award of costs as may seem equitable

and just,’” including an award of attorney’s fees for the trustee to be paid from the 

trust); cf. Tex. Civ. Prac. & Rem. Code Ann. § 37.009; Tex. Prop. Code Ann. § 

114.064; see also Boyce v. Boyce, Nos. 01-21-00166-CV, 01-21-00477-CV, 2022 WL 

17419376, at *15 (Tex. App.—Houston [1st Dist.] Dec. 6, 2022, pet. denied) (mem. 

op.) (noting that Texas’s Trust Code and Texas’s Declaratory Judgments Act both 

authorize the award of attorney’s fees). Cf. In re McIntire, No. 07-22-00249-CV, 2023 

WL 113059, at *2 (Tex. App.—Amarillo Jan. 5, 2023, orig. proceeding) (mem. op.)

(holding that trial court did not abuse its discretion by not ordering trustee to deposit 

the trust corpus into the registry of the trial court pending trial of beneficiaries’ claims 

against trustee). Further, even when a trust terminates, a trustee of an Alabama trust 

has the right “to retain a reasonable reserve for the payment of debts, expenses, and 

taxes.” Ala. Code § 19-3B-817. James’s plan of action would have resulted in the 

Trustees retaining a reserve solely from the half of the Trust’s assets that is potentially 

Rachel’s share.

James further argued that the reason that the Trustees did not turn over half 

the funds to him right away was to prevent him from having enough money to mount 
25

a legal defense. However, James’s own petition made clear that before the Trustees 

filed suit, he and they had disagreed about and retained legal counsel to discuss the 

proper disposition of trust property. Additionally, James provided no evidence that 

the actual purpose of the Trustees’ litigation was to prevent him from successfully 

pursing a breach-of-fiduciary-duty claim based on the withdrawal.

In his brief, James proposes a hypothetical situation in which Rachel has died 

and has no children, and he then asserts that the Trustees “have provided NO 

evidence that [these hypothetical facts] are not true.” James argues that, if this 

hypothetical were true, then the Trustees would have “created a controversy where 

none existed.” However, if James wanted to rely on a set of facts to show that the 

Trustees’ declaratory judgment actions were unnecessary, then he had the burden to 

produce evidence of those facts. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c). 

The Trustees did not have the burden to negate every possible scenario under which 

their litigation would have been unnecessary.

James did not establish a prima facie case that the Trustees breached their duty 

by pursuing statutorily authorized relief to resolve the parties’ dispute. The trial court 

therefore abused its discretion by failing to dismiss the claims against them based on 

their pursuing the two declaratory judgment suits.

IV. Step Three: The Trustees’ Defenses

Because James established a prima facie case for the claim against the Trustees 

based on the withdrawal, we review the record to see if they established as a matter of 
26

law an affirmative defense or some other ground on which they are entitled to 

judgment. See id. § 27.005(d).

Regarding Virginia, the Trustees negated her liability. Their motion included 

Mary Sue’s affidavit in which she stated that she withdrew the funds after Claude and 

James approved the withdrawal:

After Claude’s health began to deteriorate, I asked Claude if he wanted 

to do something for Rachel. Claude said, “Yes.” I spoke with James 

about it, and James said that he was okay with putting $100,000 in a trust 

for Rachel if James could be the trustee. I removed $100,000 from 

Claude’s trust and placed it in an account at the State Employees Credit 

Union with the expectation that I would work out the details of a trust 

for Rachel. I withdrew the funds from Claude’s trust and placed them in 

the SECU account before Claude’s death.

This evidence established that it was Mary Sue who solely was responsible for the 

withdrawal. James, on the other hand, provided no evidence that Virginia had 

anything to do with the withdrawal.

On appeal, James does not assert that he produced evidence of Virginia’s 

participation in the withdrawal, but he argues that Virginia breached her fiduciary duty 

by negligently not noticing Mary Sue’s action. However, he did not allege in his 

petition that Virginia had been negligent in not noticing or mitigating Mary Sue’s 

actions or in any other manner. Rather, he repeatedly alleged that both Trustees had 

withdrawn the money and had thereby committed theft.

5 Even in his TCPA response, 

5

James asserted in the trial court and asserts in his brief that the money had 

been paid to the daughter of one of the Trustees. However, James did not specify 
27

he acknowledged that the Trustees had claimed that only Mary Sue had been involved,

and he asserted that Virginia was a co-conspirator in attempting to “mitigate the

damages” from Mary Sue’s withdrawal, but he did not allege that Virginia had been 

negligent, and he produced no evidence of Virginia’s participation.

Mary Sue swore in her affidavit that she had been responsible for the 

withdrawal, and James produced no evidence to the contrary. Accordingly, the trial 

court abused its discretion by denying the TCPA motion regarding any claim against 

Virginia based on the withdrawal.

Mary Sue contends that the trial court should have dismissed the claims against 

her as well because she withdrew the money with Claude’s (and for that matter, 

James’s) permission. We will assume for purposes of this opinion that withdrawing 

funds from the Trust at Claude’s request to “do something” for Rachel would qualify

as an act done for Claude’s benefit.

6 Nevertheless, Mary Sue’s affidavit was not 

sufficient to establish as a matter of law that she did not breach her duty by her 

action.

which Trustee or identify the daughter, and nothing in the record supports this 

assertion.

6

The Trustees argue that the Trust’s terms gave them the authority to sell 

securities, to acquire property that may not be a proper investment under the law, and 

to invade the Trust corpus for Claude’s benefit. James has not argued that the 

Trustees could not have sold the securities, even at a loss, if they did so for Claude’s 

benefit.
28

A TCPA movant may establish a defense through affidavit testimony. Id.

§ 27.006 (stating that a court ruling on a TCPA motion may consider affidavits and 

other evidence that a court could consider under Texas Rule of Civil Procedure 166a).

However, to prove facts through an interested witness such as Mary Sue, the 

testimony must be “uncontroverted, clear, positive, direct, credible, free from 

contradiction, and susceptible to being readily controverted.” See Residential Dynamics, 

LLC v. Loveless, 186 S.W.3d 192, 198 (Tex. App.—Fort Worth 2006, no pet.). The 

phrase “‘could have been readily controverted’ does not simply mean that the

movant’s summary judgment proof could have been easily and conveniently rebutted.

Rather, it means that testimony at issue is of a nature which can be effectively 

countered by opposing evidence.” Casso v. Brand, 776 S.W.2d 551, 558 (Tex. 1989). 

“[I]f the non-movant must, in all likelihood, come forth with independent evidence to 

prevail, then summary judgment may well be proper in the absence of such 

controverting proof,” but “[i]f the credibility of the affiant or deponent is likely to be 

a dispositive factor in the resolution of the case, then summary judgment is

inappropriate.” Id.

The Trustees had the burden to prove that the withdrawal was not a breach of 

Mary Sue’s duty. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(d); see also First Ala. 

Bank of Montgomery, N.A. v. Martin, 425 So. 2d 415, 424 (Ala. 1982) (stating that as 

party asserting defense of acquiescence, ratification, or equitable estoppel, the trustee 

defendant had the burden of proving the defense). Mary Sue’s affidavit gives no 
29

indication that anyone else was present for her conversation with Claude during which 

he said that he wanted to do something for Rachel, which means that only Mary Sue

can testify about the conversation with Claude. Thus, Mary Sue’s credibility “is likely 

to be a dispositive factor in the resolution of the case.” See Casso, 776 S.W.2d at 558.

Although Mary Sue’s testimony could be sufficient at trial to establish that Claude 

agreed to the withdrawal, given the circumstances, granting the TCPA motion based 

on Mary Sue’s affidavit alone would be inappropriate. See id.

Of course, even if Mary Sue were not acting for Claude’s benefit and did 

breach her duty, under Alabama law, a trustee is not liable for a breach of duty to a 

beneficiary if the beneficiary consents to the transaction. Ala. Code § 19-3B-1009. 

However, that exception does not apply if “at the time of the consent . . . the 

beneficiary did not know of the material facts relating to the alleged breach and the 

trustee had actual knowledge of the facts relating to the alleged breach.” Id. Even if 

Mary Sue’s affidavit could be readily controverted, Mary Sue’s affidavit is too short on 

details about Claude and Mary Sue’s conversation to establish as a matter of law that

Claude knew all the material facts related to Mary Sue’s plan to establish a trust for 

Rachel funded by $100,000 from the Trust or that Claude had given Mary Sue carte 

blanche to decide what the “something” done for Rachel should be.

7

7

Texas law likewise authorizes a trust beneficiary to release a trustee from a 

duty or liability if the beneficiary is acting on full information. Tex. Prop. Code Ann. 

§ 114.005; Austin Tr. Co. as Tr. of Bob & Elizabeth Lanier Descendants Trs. for Robert 

Clayton Lanier, Jr. v. Houren, 664 S.W.3d 35, 47, 50, 53 (Tex. 2023) (citing Trust Code 
30

Mary Sue also stated in her affidavit that she talked to James about the 

withdrawal and that he consented to the withdrawal, and unlike her affidavit 

statements regarding Claude’s consent, this assertion is one that is capable of being 

controverted by James. However, Mary Sue’s affidavit does not establish James’s 

consent as a matter of law. Although the affidavit stated that James consented to her 

withdrawing $100,000 for Rachel, it does not provide enough details to establish that 

James knew all the material facts that Mary Sue knew of her plan or that he agreed to 

leave the details to her discretion. Thus, even if James cannot succeed on a claim for a 

breach of a duty because James consented to that breach, the affidavit is insufficient 

to establish his consent as a matter of law. See id.; see also Tex. Prop. Code Ann. 

§ 114.005. The Trustees provided no other evidence establishing James’s consent as a 

matter of law. 

Additionally, the Trustees did not negate the existence of damages. The 

evidence is undisputed that Mary Sue returned $100,000, plus interest, to the Trust 

account. However, James’s evidence established a prima facie case that $1,378.70 in

trading fees were incurred in raising the $100,000, and the Trustees produced no 

evidence that Mary Sue had deposited $1,378.70 to make up for those trading fees. If 

Mary Sue’s actions constituted a breach of duty, then the assessment of those trading

and noting that a beneficiary may not hold a trustee liable for the consequences of the 

trustee’s breach of duty when the beneficiary consented to the act with full knowledge 

of all the material facts that the trustee knew, i.e., when the beneficiary is informed 

enough to understand the nature and consequences of what he or she is releasing). 
31

fees were a direct result of that breach, and consequently, the Trustees did not 

establish as a matter of law that Mary Sue’s alleged breach of fiduciary duty had not 

caused any damages. Accordingly, the trial court did not abuse its discretion by 

denying the TCPA motion as to the claim that Mary Sue breached her fiduciary duty 

by withdrawing money from the Trust for Rachel.

The Trustees did not negate as a matter of law the breach-of-fiduciary-duty 

claim against Mary Sue relating to the withdrawal of funds. Accordingly, the trial court 

did not abuse its discretion by not dismissing that claim against her.

V. Attorney’s Fees

In his appellee’s brief, James argues that attorney’s fees for the Trustees 

“should never be considered by this Court or the Trial Court” because any attorney’s 

fees incurred by the Trustees were “neither reasonable nor necessary.” However, we 

have held that the trial court should have granted the Trustees’ TCPA motion as to all 

of James’s claims except the claim against Mary Sue based on her 

$100,000 withdrawal, and an award of reasonable attorney’s fees and costs incurred in 

defending against a legal action is mandatory when a court orders dismissal of the

legal action under the TCPA. See Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a). We 

therefore reject James’s argument that the trial court cannot consider attorney’s fees

on remand.
32

Conclusion

Having sustained in part and overruled in part the Trustees’ sole issue, we 

dismiss all of James’s claims against Virginia and all of his claims against Mary Sue

except for the breach-of-fiduciary-duty claim against her based on her withdrawing 

funds from the Trust. We remand this case to the trial court for further proceedings 

consistent with this opinion.

/s/ Mike Wallach

Mike Wallach

Justice

Delivered: March 14, 2024