## I n the Court of Ap pe als 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 Jus tice Wallach 

### I N THE 

### E STATE OF 

### C LAUDE 

### M. C OOPER 

### , J R 

### ., D ECEASED2 MEMOR ANDUM OPINION Thi s appeal arises from the probate court ’ s denial of the Texas Ci tizens Participation Act (TCPA) motion to dis miss filed by Appell ants Mary Sue Co oper Huffman and V irginia Cooper Down es ( collectively, the T rustees) , who a r e co truste e s of a testame nt ary trust (the Trust) in favor of their now
- deceased brother, Cla ude Cooper, Jr

. The ir motion sought dismiss al of the breach

- of

- fiduciary

- duty claims filed by Claude ’ s son, Appe ll ee Ja mes Franklin Cooper . J ames ’ s claims a re base d on (1) M ar y Sue ’ s withdraw ing $100,000 from the T rust sho rtly bef ore Cla ude ’ s death , allegedl y to create a trust for Claude ’ s other child and (2) the Trustees ’ filing
two suits for declaratory relief regarding the proper distri bution of trust assets . The Trustees ’ m otion was overruled by oper a tion of law. On ap peal, the Trustees argue in one issue with multip le subparts that t he probate court err ed by denying, eit her in whole or in part, the Trustees’ TCPA motion to dismiss James’s claim s . From the recor d before thi s court, the T CPA applies to J a mes ’ s claims a gain st the Trustees, James d id not pro duce prima facie evidence for most of his claims but did pro duce prima facie evidence of one of the claims , and the Trustees negated as a matter of law the clai m s against Vi r ginia and all but one claim

a gainst Mary Sue . Ac cordingly, we reverse the trial court ’ s denial of the TC PA motion
as to all claims against Vi rginia and all but one claim against Mary Sue, but we affir m the trial court ’ s denial of the motion as to the clai m against Mary Sue based on he r withdrawing $100, 000 f rom the Trust

.3 Background I. The Trust The Trust was created in the wil l of Ruth Messer Cooper , a lif elong resident of Alabama

. The will divided Ruth ’ s asse ts amon g her th ree chi ldren: Mary Sue, Virgini a , and C l aude

. Claude ’ s share w as placed in the T rust , and Ma r y Sue and Virginia were named as trustees

. Ru th ’ s will gave Claude the power to appoint in hi s will who would

rece ive the T rust ’ s assets upon hi s death. The will further provided t hat i f Claude d id not exerci se the power of appointment, the T rustees were to distribu te the T rust ’ s
assets per stirpes to Claude ’ s descendants

. At the time of his death, Claude had two childre n : James and his siste r Rachel

. I I. Claud e ’ s Will and Deat h Cl aude executed a will in 2019. The will left nothing to Rachel b ut did not expressly mention the T rust . Claude died on August 21, 2021. Rachel was present at his death , but James was not

. Accor ding to Ma ry Sue , shortly bef ore Claude ’ s death , s he asked him if he wanted to “ do so mething for Rachel, ” and Claude said yes

. Mary Sue then withdr ew $ 100,000 from the T rust and placed it in a bank account “ with the expectation th at [she] wo u ld work ou t the details of a trust for Rachel. ” Claude ’ s fu neral was held on September 18

. On September 20, James sent Mary Sue an email in which he thank ed her for putting together t he memorial s ervice for his father and asked her t o respond to an a ttached emai l , which his attorney had sent him4 ten days before , re garding the withdrawn funds. 1 The attorney ’ s email stated that Mary Sue had “ stole [n] from [ Claude ’ s] ass ets ” and woul d be held civilly and criminally liable : I f ind it most disturbing that you mentioned that [Mary] Sue removed $100,000.00 from the trust account for the benefit of Rachel. F irst of all, the trust for your father was set up to provide for your father during his life time, the tr ust assets belonged to you r 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 liab le. If [Mary] Sue removed money from the es tate af ter your father ’ s d eath, she is also liable under the Texas Probate Code. The money must be placed back into the trust account, or the Judge cou ld order a bench warrant for your aunt ’ s arrest, either way yo u 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 civil ly and criminally since she is a Trustee

. Remember, your fath er disinherited his daughter in his Will and he ne ver revoked his Will. Please forward this email to [Mary] Sue or have her attorney contact me. [Emphas e s added.] The Trustees ’ attorney in Alabam a sent a letter to James ’ s attorney responding to the email. The letter stated that the funds had been returned to the Tru st, with interest, and it enclos ed the August and September financi al statements for the T rust. The letter further stated that the Tru ste es ’ attorney and their Texas counsel had reviewed Claude ’ s will and di d not believe that i t exercise d the pow er of appointment,

1 James ’s brief stat e s that his demand f or the money ’s return occurred before C laude ’s death, but the record does not support this assertion.5 an d consequently , the Trus tees were propos ing a distribution plan

. S ee A la. Code § 19

- 3B

- 817 (a )

. Under th at plan, the Trustee s w o uld d istribute half of the T rust ’ s assets to J a mes and Rachel bef ore December 202 1 a nd would hold the r emainder in the trus t account until filing the T rust ’ s final income tax return and paying all t r ust expenses . See id. § 19

- 3B

- 817 ( b )

. They also a sked Ja m es and Rachel to sig n a release waiving a formal accounting and releasin g the T r ustees from liabil ity reg arding the T rust ’ s management . 2 After recei ving the release , the Trustees planned to dis tribute t h e remainder of the T rust ’ s assets after paying ex pen ses and filing the Trust ’ s tax returns . James ’ s atto rney re sponded with a lett er that the Trust ee s ’ attorney interpret e d

as an objection to the distri bution pla n. The attorney s exchange d letters disagreeing about whether Claude had exercised a pow er of app ointme nt in his will and wh ether the T r ust ’ s a ssets belonged to C laude ’ s estate . III. The Trustee s ’ L itigation After James f iled a n application to probate Claude ’ s will , t he Trustees filed a plea in i ntervention

. In their plea, t hey asked the trial cour t f or t wo decl aration s : ( 1 ) Claud e had no t exercise d the power of appointment over the T rust and ( 2 ) because Claud e did not exercise the power of appointment , th e assets in the T rust must be distributed p er stirpes

. T hey als o requested attorney ’ s fees

.
2 Such a release would not release a trustee from liabilit y for a breach of duty if at the time of its signing , th e beneficiary “ d id not know of the material facts relating to the alleged breach an d the tr ustee h ad actual knowledge of the facts relating to the alleged breach

. ” See Ala. Code § 19

- 3B

- 1009

.6 A ft er sever ing th e T rustees ’ claims into a separate proceeding , the p robate
court granted partial summary jud gment for the Truste es , declaring that Claud e had not exercised in his will the testa m entary power of a ppointment granted to him in Ruth ’ s w ill. The t rial co urt denied s ummary judgment on the Trustees ’ second requested declaration that the T rust ’ s assets should be distributed per stirpes

. The Trustees then nonsuited their second requ est for decla rat o ry relief

. Ten days after the Trustees nonsuited their second request, James filed a “ P lea in Interevetion [sic] for Declaratory Relief and Request for Temporary Unjunc t ion [ sic] , ” request ing a declaratory judgment that the T rust had been t erminated . Despite the trial court ’ s partial summ ary judgment, James a l so requested a declarat i on that Cla u de ’ s will had left the T rust ’s asse ts to J ames . A few days later, the Trustees filed a petition f or dec lara tory judgment in Alabam a . In that Alabama suit, the Trustees asked the Alabama trial court to determine the prop e r distribut i on of the T rust ’ s assets . They further asked the Alabama tr ial cou rt to declare that the Trustees had not breached their fiduciary duties by filing their declar atory judgment actions and by Mary Sue ’s withdrawal of funds. The Trustees then mov e d for f inal judgment in their Texas suit , which the trial court granted in par t. The trial court ’ s interlocutory judgment i ncorporated its previous summary judgment order declaring that Clau de ’ s will ha d not exercised the powe r of appointment regarding th e Trust, and it awarded the Trustees a ttorney ’ s fees.7 IV. J ames ’ s S uit T en day s after the trial court signed its interlocutory judgment, James filed counterclaim s in the Trustees ’ Texas suit for brea ch of fidu ciary dut y against the T rustees. 3 James alleged that because of the $1 00,000 withdrawal from the T rust , he had been d a maged b y “ thousands of d ollars of fees ” as well as “ losses on the as sets [that the Trustees had] s ol d to re mov e the fund s. ” J ames further al leged that the Tr uste es ’ “ theft ” caused a con f lict of interest such that when Claude di ed, the only

“ possible legiti mate co urse of action to take assuming for the sake of argument that they are not complet e ly disingen uous abou t the alleged c onflict in the interpretati on of Ruth and Claude ’ s Wills ” wa s “ to provide James with half of the [T] rust proceeds, ”
to “ interplead the oth er half of the funds into the registry of the Co urt, ” and “ to note that because o f the complet e con flict with them att empting to mitigate their past d eeds, they can take no furth e r role with regard to the half of the money th at it could be argued [R achel ] had an interest in. ” J ames further co ntended that the Trustees had b ro ug ht their dec larat o ry judgme nt action to hide their withd raw al of funds and to withhold his share of the
tr u st from him “ in order to ob tain litigation costs leverage over him. ” H e alleg ed that the Trustees h ad “ i mprop erly requested that [the Alabam a trial cour t ] gi ve them another sho t at ” the declaratory relief that the y had nonsuited in the Texas

3 The rec ord does not refle ct the status of the Alabama s uit invo lving the s ame i ssues .8 proce eding

. H e claimed th at he had suffered damages by the T rustees selling the Trus t ’ s ass ets at a net los s and by “ [l]ocking [ him ] into [s] tock losses h e otherwise would not have incurre d, by refusing to turn over ANY of his trust to him. ” The Truste es filed a TCPA m o tion to dism iss James ’ s counterclaims, asserting that James ’ s b r each

- o f

- fiduc iary

- duty claims arose from their exercise of their r ight to peti tion

— sp ecifically, their request s for declaratory relief in the proba te court and in
t he separate petition th at t h ey had f iled in Alabama. The Trustees attached exhibits to their motio n , inc l uding a copy of Ruth ’ s will ; a cop y of Clau de ’ s w ill ; the Alabama pe tition ; the e mail from James ’ s attorney that James had forwarded to Mary Sue shortly after Claude ’ s fune ral ; a n d letters between the Tr ustees ’ attorney an d Ja mes ’ s attorney sh owing their disag reemen t over whethe r Claude ’ s will had included or needed to inc lude a power of a ppointment

. They also attached Ma ry Sue ’ s affidavit in which she stated that she had withdraw n the $10 0,00 0 after Claude had said he wanted to do somethin g fo r Rach e l and after M ary Sue had “ spoke [n] with James about it, an d James said tha t he was okay with put ti ng $100,000 in a trust fo r Rachel if James co uld be the trustee. ” James filed a r espon s e to the TCPA motion. He asser ted t hat the day be fore Claude die d, the Trustees had “ essential ly stole [n] $1 00,000 from the [T] rust to give to

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

no right t o the [sic] any of [the] f unds, or any benef it fr om them, let alone t o the complete ly mys tifying sum of exactly $100,000. ” He further alleged that “ th e Trustee s ’9 a ctions have co ntinued to lock [James] into equities in the Trust whic h are currently suffering heavy losses at a time at wh ich [ James] , considering his proximity to retirement, would prefer to be more risk adverse. ” Althoug h h e claimed that he had pled five separate breaches of fiduciary duty agai nst the Trustees , his claims complained o f only three acts by the Tru s tees

— (1) the withd ra wal of money from the Trust , (2) the Trustees ’ pursuing decl arator y re lief in Texas rather than immediately turning over at least half of the Trust ’ s assets to hi m , and (3) the Trustees pursuing declaratory relief in Alabama

. James att a c h ed three exhibits to his response : a copy of the trial court ’ s pa rtial summary judgm ent order ; the October 20 21 letter from the Trustees ’ Ala bam a counsel stating that the $100,000 plus interest had been re turned to the T rust and propos i ng a plan of dist r ibutio n ; and three pages from one of the Trust ’ s account
sta tement s . The partial accou nt statement reve aled that in mi d

- A ugust 2021, some of the securities held by the Trust had been sold, generatin g a little o ver $ 10 0 ,000, less fees incurred for the sale s . One of the statement pa ges contai ned a hand written no te stating, “ Cost Basic [ sic] (Purchase Price)

– Sale Amount = Loss: $63,9 11.37

. ” This referred to a n entry on the statement rega rding one of the securit ies that had been sold ; the statement listed th e s ale a mount as $24,200.3 8 and the cost basis as $ 88,111.75. T he Trustees filed a repl y asserting that all James ’ s claims , a s pled, were predicated on the Trustees ’ exercise of th eir right to peti tion f or declarator y relief

.10 T he tria l court signed an orde r gra nting the TCPA motion in part , dismis sing all the claim s against Virginia an d the claim s against Mary Sue that arose from the Trustees ’ filing suits in Texas an d Alabama, a nd or dering that the Tru stees and James

su bmit att orney ’ s f ees evidence. The sa m e day, the trial court signed another order denying the TCPA motion in part and statin g that th e only breach

- of

- fiduciary

- duty claim remaining wa s the clai m against Ma ry Su e regarding the wit hdrawal of fun ds , and “ [a]ll ot her claims [were] dis misse d per [ t he] contemporaneous order. ” However,
t he se orders were not signed until April 3, 2023. The trial court had held the TC PA hearing on February 28, 2 023 , and as a res ult, the TCPA motio n had already bee n

overru led by op eration of law on Mar ch 30, 2023

. See T e x. Civ. Prac. & Rem. Code Ann. §§ 27.005 (a), 2 7.008(a). The Trustees filed this appeal from the den ial of their motion. Standard of Re view and Bu rden of Proo f This co urt reviews a rulin g on a TC PA motion to dismiss de novo. Beving v. Beadle s , 563 S.W.3d 3 9 9, 404 (Tex. App.

— Fort Worth 2018, pet. denied). The party moving f or dismissal under the TCPA has the initial burden to d emonstrate that the leg al action to be dismi ssed “ is based on o r is in response to: (1) the party ’ s exercise of: (A) t he right of fre e 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 Co de] Section 27.010(b)

. ” Tex. Civ. Prac. & Rem. Code Ann. § 27.005

.11 If the TCPA movant satisfie s the burden to show the TCPA ’ s applicability , the opposing party may resist dismis sal by “ estab lish [i ng] by clear and specific evidence a prima facie case for e a ch essentia l element of the claim in qu estion. ” Id

. § 27.005 (c)

. Even when the opposing party establishes a p r ima facie case, however, the TCPA

mov an t will still be entitled to dismissal if the mo v ant “ establishes an affirmative defense or other grounds o n which the moving pa rty is entitled to judgment as a
matter of law

. ” Id. § 27.005 (d)

. In determining whether a leg al action should be dismissed under the TCPA , the trial court must consider evi den ce that a court could consider under Texas Civil Proc edure Rule 166a an d “ suppor ting and opposing a ffidavits stating the fac ts on which the liability or defense is based

. ” Se e i d

. § 2 7.006(a); Stickland v. Schlegel , No. 02

- 22

- 0 0281

- CV, 2023 WL 811288 9, at *19 (Tex . App.

— Fort Worth Nov. 22, 2023, no pet. ) (mem. op. ). The court must also consider the plead ings, but pleading s “ are not a substitute for clear and specific evid e nce of ‘ each essential element of the claim in question. ’ ” USA Lending Gr p
. , Inc . v. W instead PC , 669 S.W.3d 195, 200 n.13 (Tex. 2023) (quoting I n re Lipsky , 460 S.W.3 d 579, 590 (Tex. 20 15) ). Discussion I . Standing and C apacity As an initial matter , we ad d ress the Trustees ’ contention that James lack s standing to sue them for breach o f fidu ciary duty

. They argue that James cannot complain about any Trust tr ansactions t hat occurred before Claude died because12 be fore that time James was only a “ potential futu r e beneficiary ” of the T rust and thus did not ha ve an enforceable interest in the trust . That is, although they acknowledge that he alleged tha t he suffere d d amages as a result of the Tr ustees ’ cond uct, they contend that he does not have the right to sue i n his individu al capacity about anything that happened while his interest in the Trust was contingent . They further contend th at he does not ha ve standing to sue as Cl aude ’ s ex ecutor bec ause has not al leged any damages in that capacity

. They raised this sa m e complaint in the trial
court. We disagree

. We first observe that the Trustees do not appear to challenge J ames ’ s s tanding in “ the ‘ proper , j urisdictiona l sense , ’ ” w hich requires the p laintiff to allege a concrete, partic ul arized injury in fact

. See Herb i g

, Tr. of Welch Fam

. Tr. C v. Wel ch

, Tr. of Welch Manry Fam

. Tr. , No. 01

- 22

- 0008 0

- CV, 2023 WL 4188074, at *4 (Tex. App.

— Houston [1st Dist.] Ju ne 27, 2023, no pet. ) ( quoting Berry v. Berry , 646 S.W.3d 516, 527 (Tex. 202 2) ) ; see also Heckman v. Williamson C n ty. , 369 S.W.3d 137, 154 (Tex. 2012) (setting out requirements of standing doctr ine )

. To the extent that the Trustees do ch allenge Jame s ’ s sta nding, we ar e unpersua ded. T he Trustees

a cknowled ge that James has claimed that Mary Sue ’ s withdrawal reduced the value of the Trust ’ s assets, and the re is no dispute that he has an interest in at lea st some of those assets or that he had that interest at the time tha t he filed his breach

- of

fidu ciary

- duty claims

.13 As we discuss below, Alaba ma law applies to the Trust ’ s administration. Under Alabama law , the Trustees ’ complaint goes to capacity ra ther t han standing

. See Daily v. Esser , No s . SC

- 2022

- 0672 , SC

- 2022

- 0673, SC

- 2022

- 0992, 2023 WL 6324888, at

* 19

– 20 (Ala. Sept. 29, 2023) (discussing arg uments that purported to challenge standing that in actuality relate d to other doctrines , such as capacit y , tha t do not implicate th e subject

- matter jurisdiction of a trial court ) ; see also Ex parte S kelton , 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, 50 3

– 0 5 (Ala. 2018) (stating that questio n of wheth er plaintiff was th e correct person to bring his claims was “ a real

- party

- in

- int e rest problem ” rather than a standing problem )

. Our conclusion is the same applyi ng Tex as law. See Herbig , 2023 WL 4188074, at *4 ( determining the argumen t raised by the trus te e in that

case
— that the pla intiff did not have standing to seek a declaratory ju d gment regarding
a trust

— was a matter of capacity, not of standing ) ; see also Ber ry , 64 6 S.W.3d at 527 ( noting tha t resolving question of whether unnamed trust benefi ciary was within class of per sons stat utorily a uth orized to sue t rustees for breach of dut y “ may overlap wi th, but does not necessarily implicate, questions of standing be aring on subject

matter jurisdiction ” )

. A lthough the question of James ’ s capacity to sue may ov erlap with question s of standing, the argument s asserted by the Trustees do not i mplicate

“ questions of standing bearing on subject

- matter jurisdiction. ” See Ber ry , 64 6 S.W.3d at 527

.14 As for the question of capacity , we co nclude that James is wit hin the cl ass o f persons auth orized to sue the Trustees

. First, we reject the assertion th a t a trustee can never be sued by a contingent beneficiary

. Alabama law provides remedi es to beneficiaries affected by a trustee ’ s bre ach of duty, see Ala . Code § § 19

- 3B

- 1001 , 19

- 3B

- 1002, and the term “ beneficiary ” includes anyone who “ has a present or fut u re beneficial interest in a trust, vested or contingent , ” id. § 19

- 3B

- 103 (empha sis ad ded)

. Texas also allows a contingent or vested beneficiary to sue a trustee fo r breach of fidu ciary duty

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

“ interested person ” ) , 115.0 1 1 (a ) (aut horizing any “ interested person ” to bring s uit

re lating to trust administration ) ; Berry , 646 S.W.3d at 527

– 28 ( appl yin g Texas Prop erty Code Section s 111.004 , 115.0 01 , and 115.011 in analysis of whether contingent trust beneficiary was authorized by statute to bring her b reach

- of

- fiduciary

- duty clai ms and concluding that she was )

. Even a t the time that Mary Sue transferred the money, James had a contingent inter est in the Trust subject only to Claude ’ s power of appointme n t . See Berry , 646 S.W.3d at 529

. Secon d, and more importantly , in this case regardless of whet her the applicable laws or the terms of the Trust w ould have restricted J ames ’ s ab ility to sue the Tr ustees while Claude was alive , by the time that he did sue , h is 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 Ma ry Sue ’ s impro per actio n r educed th ose assets . Accordi ngly, James was within the class of15 persons authorized to br i ng his claims

. See Ala. Code § § 19

- 3B

- 10 1 , 19

- 3B

- 1001

– 02 ; Tex. Prop. Code Ann. § § 111.004 , 115.0 1 1 (a) ; Ber ry , 646 S.W.3d at 527

. Although the Trustees cite Alaba ma la w throughout their br ief, they do not d iscuss Alabam a law on the question of standing or c apacity

. T he two Texas cases relied on by the Trustees pre

- date Berry , do not mention Section 115. 0 1 1 of t he Texas Property Code , and are factual ly distin guishable. See Mood y v. Moody , 613 S.W.3d 707, 719 (Tex. App.

— Houston [14th Dist.] 2020, pet. denied) (addressing w hether an heir may sue to recover property belonging to an estate when the estate ’ s p ersonal repre sentative ha d dec lined to bring su it , and n ot discussing wheth er a trust ’ s beneficiary may su e a trustee for acts taken while the beneficiary ’ s i nterest was contingent ) ; Davis v. Davis , 734 S.W.2d 707, 709 (Tex. App.

— Houston [1st Dist.] 1987, writ ref ’ d n.r.e.) (in volving suit by a person who wa s n ot named as a benef iciary of a trust of which his children were beneficiaries and who would have an i n terest in the trust only if one of his children died intest ate)

. In their reply brief, t he Trustee s argue that Section 115.011 does not authoriz e James t o bring his suit be cause although that provision allows an “interested person ” such as a beneficiary t o bring claims under S ection 115.001 , a cla im under Section 115.001 does no t include tort c laims , a nd thus Se ction 115.011 does not a u thoriz e Jam es to sue for breach of fidu ciary duty

. The Trustees do not , however, discuss Berry , in which the Texas Suprem e Court applied Sections 115.0 01 and 115.0 11 in its anal ysis of wh ether a contingent trust ben eficia ry was w ithin the clas s of persons16 authoriz ed to sue the trust ee for breach of fid uciary dut y . Berry , 646 S.W.3d at 527

– 30. We therefore disagree that those P roperty Code sections have no relevance to a n analysis of who may sue a trustee for breach of fidu ciary du ty. T h us, even applying Te xas law , we conclude that Ja mes was authorized to bring his breach

- of

- fiduciary

duty claims. We reject the Trustees ’ challe n ge to James ’ s sta nding and capacity

. I I . Step One: The TCPA ’ s Applica b ility W e begin our TCPA ana lysis b y looking a t whethe r the Trustees established the TCPA ’ s applicabilit y. “ Under the TCPA , the filing of a petit ion in a lawsuit is a communication in o r pertaining to a judicial proceeding that implicates a p arty ’ s exercise of the right to petition

. ” Cass v. Hughes as Tr. of Jimmy Celtyn H ughes QTIP M arital Tr

. , No. 02

- 23

- 00 122

- CV, 2023 WL 6300593, at *5 (Tex. App.

— F ort Worth Sept. 28, 2023, pet . deni ed ) (mem. op.) (citing Tex. Civ. Prac. & Rem. Code Ann. § 27. 001 (1), (4) ). James ’ s petition alleged th at the Trustees ha d breach ed their fiduci ary duty by filing th e declaratory j udgm ent actions in Texas and Alabama , and those claims are th erefore based on or are in response to the Trustees ’ exercise o f the right to petition

. See Tex. Civ. Prac. & Rem. Cod e Ann. § § 2 7.001 , 27.003

. T hus, the TCP A applies to those claims. L

ikewise, J ames ’ s claims based on the withdrawal of $100,000 are, as ple d , also based on or in response to the Trustees ’ exercise of th e right to petition

. James filed his breach

- of

- fiduciar y - duty claims only after t h e Trustees f iled thei r Alabama petition seeking a declaration regarding the ir performance of their duties. Further, a s the17 Trustee s point out, “ In each of the substantive paragraphs of James ’ s pleadings that

m ention the $ 100,000 withdrawal, James explicit l y ties his b reach of fiduciary duty clai m back to the fact that the Co

- Trustees

. . . [sought] declaratory relief

. ” For example, J a mes pled that the Trus tees filed the declaratory proceedings to hide the wi thdrawal , alleging that the Trustees had filed su it becaus e “ IF [the Trustees ] could convince the e ventual trier of fact that [Rachel] was going to get half of the [T] rust, they co u ld certainly m itigate [their wi th drawal] as simply being a ‘ premature distribution. ’ ” He further a llege d that the T r ustees i nt entionally filed su it without f irst disbursing half of the T rust ’ s assets to him in order to “ obtain litigation costs leverage

ov e r him ” and thereby “ miti gat [ e] the ir theft

. ” In other words, according to James ’s petition , th e Tr ustees ’ filing sui t w as a continuation o f and cover

- up of the theft. See Hersh v. Tatum , 526 S.W.3d 462, 467 (Tex. 2017) (noting that the plaintiff ’s petitio n is the best evidence of the nature o f the plaintiff ’s action) ; Newstream Roanoke 6.125, LLC v . Sh ore , No. 02

- 22

- 005 06

- CV, 2 023 WL 5615871 , at *4 (Tex. App.

— Fort Worth Aug. 31, 2023, no pet. ) (mem. op.) (stating that TCPA mov ant had shown TCPA ’ s applicabi l ity by showing that the claims aga inst it were factually p redicated on conduct that fell withi n TC PA ’ s sco pe) . The T CPA ther efore applies to the claims against the Trustees based on the theft

. H aving held that the TCPA applies t o all of J a mes ’ s claims , we proceed to the next step of the an alysis.18 III . Step Two : Prima Facie Case B ecause the Trustees es tabl ished that Jam es ’s cla ims are based o n the ir

asser tion of the right to petition , we pro ceed to the second step of the analysis an d determine whether J a me s established a prima facie case by c lear and con vincing evidence. To determine whether James m ade a prima facie case fo r his c laims, we mu st first determine wha t law applies to the claims. Texas law governs the construction of Claud e’ s will

. See Van Hoose v. Moore , 441 S.W.2d 597, 617 (Tex. App.

— Amarillo 1969, writ ref’d n.r.e.) . A s for the Tr ust , t he limi ted appellate recor d b efore this court indicates that Ruth had lived in Alabama all h er life and that the T rus te e s lived in Alabama and managed the T rust from there , and th ere is no indicatio n that Ruth owned any real property in T exas or t hat any Trus t pr operty is loca ted i n T exas . Accordingly , Alab ama law governs Ruth ’s will and the Trust ’ s administration

. See Crossland v. Dunham , 140 S.W.2d 1095, 1096 ( Te x. 1940) ; Lan ius v. Fletcher , 101 S.W. 1076, 1077 ( Tex. 1907) ; Wilson v. Smi th , 373 S.W. 2d 514, 5 17 ( Tex. App.

— San Anton io 1963, writ ref ’ d n.r.e.) ; see also Ala. Code § 19

- 3B

- 108 (g) ; Hoglan v. Mo ore , 122 So. 824, 828 ( Ala. 1929)

. However, a s noted throu g hout this opinion, on the
matters discussed herein , A labama law appears to be substantial ly the sa me a s Texas law

. U nder Ala bama law, like Texas law, a breach

- of

- fidu ciary

- duty claim requires proof of “( 1) the existence of a fiduciary duty between the par t ies; (2) t he breach of19 that duty; and (3) damages suffered as a result of th e breach .” R egions Ban k v. Low rey , 101 S o. 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 simila r elements for breach of fiduciary duty under Texas law ). As for the existenc e of a duty, Alabama l aw requi res a
trus t ee to “a dminister the trust solely in the interests of the beneficiaries .” Ala. Code § 19

- 3B

- 802 ; see also Regions Bank , 101 So. 3d at 219 (“ A truste e owes the beneficiaries of a trust the duty of loyalty, which req uires the trustee to p reserve trust asse ts and to administer the trust solely in the interest of the beneficiaries .”) ; cf. Peek v. Mayfield , No. 02

- 22

- 00492

- CV, 2023 WL 5967886, a t *9 (Tex. App.

— Fort Worth Sept. 14, 2023, pet. denied ) (mem. op.) (noting tr ustee ’ s d uty of good f aith, fair dealin g, loyalty, and fideli ty to the trust ’ s beneficiaries )

. In this case, the trust instrument

— Ruth ’ s will

— required the Trustees to hold and adm i nister trust property for Claude ’s bene fit

. J ames alleged a b re ach of this duty by alleging that t he Tru s tees had st olen tru st funds before Claude ’ s death, and James ’ s TCPA response established a prima fac ie case that the Tru stees had breached their duty to prese rve trust assets and administer the T rust solely for Cla ude ’ s benefi t . James att a ched to hi s TCPA r e sponse a
statement from a trust accou nt showing the withdrawal of funds , thus conf irming that shortly before Claude ’ s death, a little more than $100 , 000 had be e n withdrawn from the account. He also attached a let ter to his a ttorney from the Truste es’ attor ney s ackn owledging that the funds had been withdrawn “ for the benefit of Rachel .” The letter claimed that the withdrawal had been “ to ful fill Claude ’ s wishes ,” but it20 provided no more specific infor mation about Claude ’ s al l eged wishes or how the

a ttorneys drafting the letter had any knowledge of those wishes

. Th at is , the letter ackn owledged a withdrawal of funds , d id not provide enough facts to show h ow the withdrawal was for Claude ’ s benefit, and s tated that t he withdra wal was for the benefi t of someone other than Claude

. A s for damages, a t the least, the partial account statement attached to James ’ s TCPA response showed that the Trust had incurr ed “[ c]ommissions/ [t]rading fees ” of $1,378.70 when T rust securities were sol d to raise the $100, 000

. A ccordingly, for Ja mes ’ s brea ch 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 trus tee who commits a breach of trust is liabl e to beneficiaries f or 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 o ccurred ; or (i i) the profit the trustee made by reas o n of the bre ach ” ). In th e ir reply brief , the Trustees argue that the partial account st atement was insufficient to show that the trading fees show n in the statement arose from Mary Sue ’ s actions , and they point out t h at the Trust instrument authorized them to sell

sec urities and t o employ and pay for investment ad visors

. However , t he partial
account statement sh owed that the f ees were incurred in sales of securities in mid

A ugust 2021

— less than a week before Claude di ed— and that those sa les g enerated $10 7,914.16, le s s the fees. The Trus tees ’ TCPA motion acknowledge d that Mary Sue21 ha d spoke n t o C laude abo ut doing something for Rachel “ [ s ] hortly before he passed away ” on A ugust 20, 20 2 1 and that she withdr ew the funds af t er that co n versation

. This partial account sta tement was sufficient to make a prima facie case tha t the fees were in c urre d because securities held by the Trust were sold to generate the $100,000 for Rachel

. The Trustees produced no controverting ev idence e stab lishing that t he fees had been genera ted from unrelated sales. Thus , if Mary Sue ’ s se l ling of securities to fund a tr us t for Rachel was a breach of Mary Sue ’ s fiduciary duty, then the trading fees are damages resulting from that breach

. In summary, Ja m es produ ced a prima f a cie case that Mary Sue ’ s w ithdrawal of funds for Rachel was a breach of the duty that a truste e owes to tr ust beneficiaries and that this breach resulted in damages. As for James ’ s claim that the Trustees ’ mere filing of their declar a tor y judgment

a ctions consti t uted a breach of th eir duty, he did not support that claim with clear and specific evid ence. T he Tr ustees had a duty to wind up the Trust and distribute its assets to its beneficiaries upon t he Trust ’s termination , see id. § 1 9

- 3B

- 817 (b) , but first they h a d to determine who th ose beneficiaries were

. Because they believed th at Claude ’s will d id not exerc ise his power of appointment while James believed that it did , the T rustees sought a judicial declaration of the Trust ’s benefi c iar ies

. Texas p rovides a pro c e dure for a trustee to obtain d eclaratory relief related to a will or trust : A p erson i nterested as or through an executor or administrator, including

. . . a trustee . . . may have a declaration of rights or legal relations i n r espect to th e trust or es t ate:22 (1) to ascerta in any clas s of creditors, devisees, legatees, heir s, 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 capacit y ; (3) to deter mine any ques t ion arising in the administrat ion of the trust or estate, including qu estions of constru c tion of wil ls and other writings; or (4) to determine rights or legal relations of an independent executor or independent administrator re g ar ding fiducia ry fees and t h e settling of accou nts. Tex. C iv. Prac. & Rem. Code Ann. § 37.005

. Ala bama has a similar statute. Se e Ala. Code § 6

- 6

- 225 ; see also id. § § 19

- 3B

- 201 (c) ( “ A judicial proceeding involving a trust may relate to any matter involvin g t he trust ’ s a dministrati o n, including a requ est for instructions and an action to declare rights. ”) , 19

- 3B

- 816 (a) (2 6) (providin g that even after a trust ’s termination, a trustee retains the powers appropriate for wind ing up the administration of the trus t and distribut ing the trust p roperty to the pers ons entitled to it )

. 4

4 Although Alabama substant ive law appl ies to the Trust ’s administra t ion , o ther Texas co urts have said that Texas ’s Declaratory Judgments Act is procedural in n ature and therefor e applies to Texas suits even when applying the sub stant ive law of anoth er state. See, e .g. , Man Indus. ( India), L td. v. Midcontinent Ex p ress Pipe l ine, LLC , 407 S.W.3 d 342, 353 (Tex. App.

— Houston [14th Dist.] 2013, pet. denie d) ; cf. Tex. Ass ’ n of Bus. v. T ex. Air Control Bd

. , 852 S.W.2d 440, 444 (Tex. 1993) (no ting that Tex as ’ s D eclaratory J udgment A ct is “ merely a pr ocedural device for de ciding c ases already within a court ’ s jurisdiction ”). For purposes of our discussion, it does not matter which state ’s d eclaratory judgmen t act applies to the Texas suit becaus e either way , th e Trustees were authorized to bring the ir suit

.23 Thus, the Trustees were auth orized by s tatute to bring the ir Texas and Alabama suits to resolve a dispute with James over , among other issues, whether Claude ’ s will included a power of a p poi ntment and w he ther, und e r the Trust instrum ent, th e Trust ’ s assets should be distributed per s tirpes

. Fur ther, a lth ough Jame s contends that the Trustees ’ declaratory judgment actions were “ complete ly unnecessary, ” his petition acknowledged that Ru th ’ s will contained two t erms that he viewed as conflicting with respect to the power of appointment is sue ; that he and t he Trustees disagree d about the proper construction of Ruth ’ s will , Claude ’ s will, and the administration of the Trust, including h ow the T r ustees sho u ld wind up the Trus t ; and that the disagreement existed before the Trustees filed suit and contin ued afte r . Further, several days before the Trustees filed their Alabama suit, James filed his o wn claim for declar atory relief re garding the prop e r disposition of th e Trust ’ s assets , thereby recognizing that a dispute existed among the parties a bout the proper

co nstruction o f C laude ’ s will and who the Trust ’ s beneficiaries were

. J ames argued in his petitio n that if th e Tr ustees truly be l ieved that a declar atory judgment a ction was necessary, they should have immediately provided him wi th half of the Trust ’ s as sets and interpl ed the other hal f of the funds “ so that any conte sting parties could, if necessary, bring a cau se of action to int e rpret [Ruth ’ s ] Wil l

. ” He contend ed that by not following t hat course of action , they breached their fiduciary d uty . But bringing suit for de clarations re lated to Ruth ’ s and Claude ’ s wills is exac tly what the Truste es did , and James ’ s argument about giving him half of the Tru st ’ s24 asse ts up front i gnores the fact that if the Trustees succe eded in their action, the y could be awarded attorney ’ s fees

. See Ala. Code § § 6

- 6

- 2 31 , 19

- 3B

- 70 9 ; Mac Kenzie v. First Ala

. Bank , 598 So. 2d 1367, 1371 (Ala. 1992) (stating that th e trial cour t ’ s

a ut horit y to render a declaratory judgment under Section 6

- 6

- 225 includ ed the
aut hority under Section 6

- 6

- 231 “ to ‘ make such aw ard of costs as ma y seem equita ble and just , ’ ” inclu ding an award of attorney ’ s fees for the trustee to be paid f rom the
trus t ); c f

. Tex. Civ. Prac. & Rem. Code Ann. § 37.009 ; Tex. Prop. Code Ann. § 114.064 ; see also Boyce v. Boyce , No s . 01

- 21

- 00166

- CV, 01

- 21

- 00477

- CV , 2022 WL 17419376, at *15 (T ex. App.

— Houston [1st Dist.] Dec. 6, 2022, pet. denied) (mem. op.) (noti ng that Texa s ’s T r ust Co de and Texas ’ s Declaratory Judgments Act both authorize the award of attorney ’s f ees )

. C f. In re McIntire , No. 07

- 22

- 00 249

- CV, 2023 WL 11 3059, at *2 ( Tex . App.

— Amarillo Jan. 5, 2023, orig

. procee ding ) (me m. op.) (holding that trial court di d no t abuse its disc r etion by not orderi ng trustee to deposit the trust corpus into the registry of the trial court pending trial of be neficiar ies ’ claim s against tru stee)

. Further , even when a trust terminates, a trustee of an Alabama trust has th e right “ to retain a rea sona b le reserve for the payment of debts, expenses, and
taxes. ” Ala. Code § 19

- 3B

- 817 . James ’s plan of action would hav e resulted in the Trustees reta ining a reserv e solely from the half of the Trust ’ s assets that is potentially Rac hel ’s sh are. James furth er a rgued that the reas on that the Trustees did not turn over half the funds to him right away was to prevent him from having enough mone y to mount25 a legal defen se . H owever, James ’ s own petition made clear that before the Trustees filed sui t, he and the y h ad disa g reed about and reta ined legal counsel to discuss the proper disposition of t rust property . Additionally , James provided no eviden ce that the a ctual purpose of the Trustees ’ litigation was to prevent him from succes sfully pursi ng a b reach

- of

- fiduci a ry
- duty claim based on the withdrawal. In his brief , James proposes a hypothetical situation in which Rachel has died

a nd has no children , and he th en asserts that the Trustees “have provided NO evide nce that [th ese hypo th et ical fact s ] are not true. ” Jame s argues that, if th i s hypothetical were true, then the Trus tees would have “ created a controversy where none existed. ” However, if James wanted to rel y on a set of facts to show that the Trustees ’ declarat o ry judgment actions were unnecess a ry , then he had the burd en to produce evidence of those facts

. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005 (c)

. The Trus tees did not h ave the burden to ne gate every possible scenari o under which their litigation w ould hav e been unnec essary. James did not establish a prim a f acie case that t he Trustees breach ed their duty by pursuing statutorily authorized relief to resolve the parties ’ di spute. The t rial c ourt therefor e abused its discretion by failing to dismiss the claims against the m ba sed on their purs u ing the two decl ara tory judgment suits

. I V . Step Three: The Trustee s ’ Defenses Because James established a prima facie case for the cl aim ag ainst the Tr ustees b ased on the wi thdrawal, we review the record to see if they esta blished as a matter of26 law an a f f irmat ive defen se or some o ther g round on which they are entitled to judgment. See id

. § 27.005 (d)

. Reg arding Virgin i a , the Trustee s n egated her liabili ty . The ir motion i ncluded Mary Sue ’ s affidavit in which she stat e d that she w ithdr ew the fun ds after Cl aude and J a mes a pproved the withdrawal: A ft er Claude ’ s health began to deteriorate, I asked Claude if he wanted to do something for Rac hel. Claude said, “ Yes. ” I spoke wit h James about it, and James said that he was ok a y with pu tt i ng $100,000 in a t r ust fo r Rachel if J ame s could be the trustee. I removed $100,000 fr om Claude ’ s trust and placed it in an account at the State Employees Credi t Union with the e xpectation that I would work out the details of a trust for Rache l

. I withdre w the funds from Cl a ude ’ s trust and pla ced them in the SECU account before Claude ’ s de ath

. This evid ence established that it was Mary Sue who solely was responsi ble for the withdr awal. James, on th e other hand, provided no evidence that Virgin ia had anything t o d o with the withdraw al

. On appeal, J ames does not assert that he produced evidence of Vir ginia ’ s participation in the withdrawal, but he argues that Virgin ia breached her fi d uciary duty by ne gligently not noticin g Mary Sue ’ s action

. However , he did not allege in his petition that Virginia ha d been negligent in not noticing or mitigating Mary Sue ’ s actions or in any other manner

. Rath er, h e repeatedly alleged th at both T rustee s had withdra wn th e money and had thereby committed theft

. 5 Even in his TCPA response,

5 James asse rted in the t rial court and asse rts in his brief that the money had been paid to the daughter of one of the Trustees

. However , James did not sp ecify27 he acknowledged that the Trustee s ha d claimed that only Mary Sue had been involved , and he asserted that Virg inia was a c o - conspirat or in at t empting to “ mitigat e the dam ages ” from Mary Su e ’ s withdrawal , but he did not allege that Virginia had been negligen t , and he produc ed no evidence o f Virginia ’ s participation

. Mary Sue swore in her affidavit that she had been re sponsible for the

w

i thdrawal , and James produced no evide nce to the contrar y . Accordingly, the trial court ab used its discretion by denying the TCPA motion rega rding any claim against Vir ginia b ased on the withdraw al. Mary Sue contends that the trial court should have dismis s ed the claims again st her as well bec ause she withdr ew the money with Claude ’ s (and for that matter, James ’ s) permission. We will assume for purpo ses of thi s opinion that withdrawing funds from the Trust at Claude ’ s request to “ do somet hing ” for Rachel wo uld qualify

as an ac t done for Claude ’ s benefit

. 6 Nevert heless, Mary Sue ’ s affidavit was not sufficient to establish as a matter of law that she di d not brea ch her duty by her action

.
which Trustee or identify t he da ughter , and noth i ng in the re cord supports this assertion

. 6 The Trustees argu e t hat the Trust ’ s terms gave them the a uthority to sell securities , to acqu ire property that m ay not be a proper investmen t under the law , a nd to inva de the Trust corpus for Clau de ’ s benefit

. Ja mes has not argued that the Trustees coul d not have so ld the sec urities , even at a loss , if they did so for Claude ’s benefit.28 A TCPA movant may establish a defense th rough affida vit testimony

. Id

. § 27.006 (stating th a t a court ruling o n a TCPA motion ma y consider affidavits and other evidence that a court could consider under Texas Rule of Civil Proced ure 166 a ). However, to prove facts through an interested witness su ch as Mary S ue , the testimony m u st be “ uncontrovert e d, clear, positive , direct, credible , free from contradiction, a nd susceptible to being readily controverted

. ” See Reside ntial Dynamics, LLC v. Loveless , 186 S.W.3d 192, 198 (Tex. App.

— Fort Worth 2006, no pet.)

. The p hrase “ ‘ could have been readily contro v erted ’ does not si mply mean that the
movant ’ s summa ry judgment proof could have been easily and conveniently rebutted. Ra ther, it means t hat testimony at issue is of a nature which can be effectively

coun tered by opp osing evidence

. ” Ca s so v. Brand , 776 S. W .2d 551, 558 (Tex. 1989)

. “[I] f the non
- movant must, in all likelihood, come forth with independ ent evidence to prevail, then summary jud gment may well be proper in the absence of such controverting proof , ” but “ [i] f the credibility of th e affiant or depo n ent is likely to b e a dispositive fa ctor in the resolution of the case, then summary judgment is inappropriate

. ” Id. The Trustees had the burden to prove that the withdraw al was not a breach of Mary Sue ’ s duty

. See Tex. Civ. Prac

. & R e m. Code Ann. § 27.0 0 5 (d); see also Firs t Ala

. Bank of Mon tgomery, N.A. v. Martin , 425 So. 2d 415, 424 (Ala. 1982) (stating that as party asser ting defense of acquiescence, ratification, or equitable estoppel , the t rustee def endant had t he burden of provin g the de fense)

. Mary S u e ’ s affidavit giv es no29 indication th at anyone else was present for her conversation with Claud e during which he said tha t he wanted to d o som ething for Rachel , which means that o nly Mary Sue can testif y about the c onversation with Cl a ude

. T h us , Mary Sue ’s c redibility “is l ikely to be a dispo sitive factor in the resolution of the case

. ” See Casso , 7 76 S.W.2d at 558

. Although Mary Sue ’ s test imony could be sufficient at trial to establish that Claude agreed to the with drawal , g iven the c i rcumstances, granti ng the TCPA motion b ased on Mary Sue ’s affidavit alone would be inappropriate

. See id. Of course , e ven if Mary Sue were not a cting for Clau de ’ s bene fit and did breach her duty , u nder Alabama law, a truste e is not lia ble for a breach of duty to a beneficia ry if the beneficiary consents to the tr ansaction

. Ala. Code § 19

- 3B

- 1009

. However, that exception does not apply if “ at the time of the con sent . . . the beneficiary did not know of the material facts rel ating t o the alleged breach and the
trustee had act ual knowledge of the facts relating to t he alleged breach. ” I d. Even if Mary Sue ’ s affidavit could be readily controverted, Mary Sue ’ s af fid avit is too short on details about Claude and Mary Sue ’ s conversa tion to esta blish as a matter o f law that Claude kn ew all the material f a cts related to Mar y Sue ’ s plan to establish a trust for Rachel funded by $100,000 from the Trust or th at Claude had gi ven Mary Sue carte blanche to decide what the “ something ” done fo r Rachel sho uld be

. 7

7 Texas law li kewise authorizes a trust beneficiary to rele ase a trustee from a duty or liability if the bene ficiar y is acti ng on f ull informat ion. Tex. Prop. Code Ann. § 1 1 4.005 ; Austin Tr. C o. as Tr. of Bob & Elizabeth Lanier Descendants Tr s. for Robert Clayton Lanier, Jr. v. Houren , 664 S.W.3d 35, 47 , 50, 53 (T ex. 2023) ( citing Trust Code30 Mary Sue a lso stated in her a ffid avit that she talked to James about t he withdrawal and that he consented to the withdrawal, and unlike her affidavit

s tat ements regarding Claude ’ s consent, t his assertion is one that is capable of bein g
controvert ed by James. However, Mary Sue’s affida vit does not establish James’s
consent as a matter of law. Although the affidavit stated tha t James consented to her withd raw ing $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 pla n or that h e agreed to leave the de tails to her discretion. Thus, even if Ja mes ca nnot succeed on a cla im for a bre ach of a duty be cause James consented to that breac h, the affidavit is insufficient to establish his consent as a matter of law. See id. ; see al so Tex. Prop . Code Ann. § 114.0 05. The Trustees provide d no other evidenc e establishing James ’ s consent as a
mat ter of law. Add itionally, the Trustees did not negate the existence o f damages. The

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

accou nt. Ho wever, James ’s evid ence established a prima fa cie case that $1,378 .70 in
tra ding fees were i ncurred in ra ising the $100,000, and the Trustees prod uced no evidence that Mary Sue had deposited $1,378.70 to make up for th ose tradi ng fees

. If Mary Sue ’ s actions constituted a breach of duty, then th e assessment of those tradi ng and noting that a beneficia ry may not hold a trustee li able for the consequences o f the trustee ’s brea ch of duty when the beneficiary consented to the act with full kno wledge of all the material facts that the trustee knew , i .e ., when the benefi ciary is in formed enough to understand the nature and consequences of what he or she is relea s ing ).31 fees w e re a dire c t resu lt of that br each, and c onsequently, the Trustees did not establish as a ma tter of law that Mary Sue ’ s alleged breach of fiduciary duty had not caused any damages. Accordingly , the tr ial court did not abuse its discret ion by denyi ng the TCP A motion a s to t he claim that Mary Sue breached her fiduciary duty by withdrawing money fro m the Trust for Rachel. The Trust ees did not negate as a matter of law the breach

- of

- fiduciary

- duty claim ag ainst Mary Sue rel at ing to the wit hdrawal of funds

. Acco r dingly , the tria l cou r t did not abuse its discretion by not dismissing that cla im against her. V. Attorney ’ s F ees In his appellee ’s brief, James argues that attor ney ’s fees for the Trustees “shou ld n ever be considered by this C o urt or the Tria l Court ” bec a use any attorney ’s f

e es incurred by the Trustees were “neither reasonable nor n ecessary . ” Ho wever, we have held that the trial court should ha ve granted the Trustees ’ TCPA motion as to all of James ’ s claims exce pt the claim ag ainst Mary S ue based on her $1 00, 0 00 withdraw a l , and an award of reasonable attorney ’ s fees and costs incurre d 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. Cod e Ann. § 27. 009 (a). We there fo re r eject James ’ s argum ent that the trial court cannot consider attorney ’ s fees on remand

.32 Conclusion Having sustained in part and overruled in part the Trust ees ’ sole issue , we dismiss all of James ’ s claims against V irginia and all of h is claims against Mary Sue except for the breach

- of

- fiduciary

- duty claim against her ba sed on her withdrawing funds from the Trust

. We remand th is case to the trial court for further proceedings consistent with this op inion

.

/s/ Mike Wallach M ike Wall ach Just ice Deliver ed: March 14, 202 4