In Frost Bank v. Glenn, Jo Ann Turrentine created a revocable living trust in 2007, naming herself and Raymond James as co-trustees. No. 13-23-00595-CV, 2025 Tex. App. LEXIS 9484 (Tex. App.—Corpus Christi December 11, 2025, no pet.). After Turrentine’s death in 2018, Frost Bank became the sole trustee. In April 2020, the Beneficiaries sued Frost Bank for failing to provide an accounting. In September 2020, Frost Bank gave notice of resignation. In December 2020, Frost Bank filed counterclaims seeking judicial modification of the Trust to allow appointment of an individual successor trustee. In August 2023, the Beneficiaries amended their petition to add breach of fiduciary duty claims. Frost Bank filed a motion to dismiss under the Texas Citizens Participation Act (TCPA or Act). Id. (citing Tex. Civ. Prac. & Rem. Code Ann. § 27.003). Frost Bank contended that the beneficiaries filed various breach of fiduciary claims against Frost Bank in response to Frost Bank’s exercise of its right to petition, the beneficiaries failed to present clear and specific evidence to establish each element of their claims, and Frost Bank otherwise proved its entitlement to judgment as a matter of law.
According to the beneficiary’s amended petition, they notified Frost Bank’s attorney in October 2020 that the beneficiaries “had agreed to a modification of the Trust to permit an individual to serve as the Trustee and to have Kenton . . . serving in that capacity and of Kenton[‘s] . . . willingness to do so immediately.” Id. They further alleged that they sent Frost Bank a purported amendment to the Trust executed by the Beneficiaries, but “Frost Bank refused to accept this as adequate and in December 2020 asked the [trial court] . . . to modify the Trust to approve its attorney’s fees in this matter, (which had been billed to the Trust) and to grant Frost Bank a discharge and release from liability for its actions.”
The Beneficiaries’ breach of fiduciary claims can be placed into three buckets: (1) “wasting trust assets” by billing the Trust for unnecessary attorney and trustee fees; (2) “failing to advise” about Medicare and social security benefits; and (3) “obstructing” the Beneficiaries’ claims against Raymond James by failing “to supervise or even review the actions of Raymond James financial advisors and brokers.” As to their claim for unnecessary attorney’s fees, the Beneficiaries alleged that Frost Bank took “positions” in the litigation that were contrary to their interests and only benefited Frost Bank. Concerning the allegedly improper trustee fees, they faulted Frost Bank for “failing to promptly resign” after its September 2020 notice and instead waiting until the trial court approved the trustee change in 2022. The trial court denied Frost’s motion, and Frost appealed.
The court of appeals first discussed the TCPA motion and its standards:
Designed to safeguard constitutional rights, the Act provides a mechanism for early dismissal of unmeritorious claims “based on or in response to a party’s exercise of the right to free speech, right to petition, or right of association.” It is the movant’s initial burden to establish by a preponderance of the evidence that the Act applies to the respondent’s claim. The burden then shifts to the respondent to avoid dismissal by “establish[ing] by clear and specific evidence a prima facie case for each essential element of the claim in question.”
Id.
The court noted that it was undisputed that Frost Bank was exercising its right to petition when it filed its counterclaims against the Beneficiaries. “Instead, the parties dispute whether the Beneficiaries’ amended claims for breach of fiduciary duty were “based on or in response to” Frost Bank’s counterclaims.” Id. The court stated:
The Beneficiaries alleged that Frost Bank breached its fiduciary duty by causing the Trust to incur unnecessary attorney and trustee fees by “ask[ing]” the trial court “to modify the Trust” rather than accepting the Beneficiaries’ nonjudicial amendment of the Trust. According to the Beneficiaries, Frost Bank had a “fiduciary duty to promptly resign following its notice of resignation on September 4, 2020,” but instead continued to collect trustee fees until the trial court approved Kenton as successor trustee on March 10, 2022. They further alleged that Frost Bank charged the Trust for its attorney’s fees even though Frost Bank took “positions” in the litigation that were beneficial only to Frost Bank and contrary to the interests of the Beneficiaries. Thus, for these claims, the Beneficiaries’ theory of liability is premised on Frost Bank filing counterclaims against the Beneficiaries. We therefore agree with Frost Bank that these “waste” claims were “based on or in response to” Frost Bank’s right to petition.
We disagree, however, that any of the other breach of fiduciary claims fall within the Act’s protections. The Beneficiaries also alleged that Frost Bank breached its fiduciary duty by failing to “appropriately advise and assist” Glenn with obtaining both Medicare and social security benefits. These claims bear no relation to “a communication in or pertaining to . . . a judicial proceeding.” Likewise, the Beneficiaries’ claim that Frost Bank “obstructed” their claims against Raymond James by “fail[ing] to supervise or even review the actions of Raymond James[‘s] financial advisors and brokers” is unrelated to Frost Bank’s right to petition. True, Frost Bank had already filed its counterclaim seeking a judicial declaration that it “is not under any duty or responsibility to audit or review the actions or accountings of any predecessor Trustee of the Trust.” But the mere fact that Frost Bank beat the Beneficiaries to the punch in requesting judicial relief on this issue does not mean that the Beneficiaries’ amended claim was “based on or in response to” this counterclaim. Rather, looking to the substance of the Beneficiaries’ allegations, we conclude this claim concerns Frost Bank’s alleged omissions outside the context of the lawsuit. Accordingly, the trial court did not err by denying the motion to dismiss with respect to the Beneficiaries’ breach of fiduciary claims for failure to “advise and assist” and “obstruction.”
Id. The court then addressed whether certain affidavits were proper evidence. Specifically, the court held that an affidavit from a successor trustee was properly before the trial court, and that the affiant did not have to be an expert as expert testimony is not required for breach of fiduciary duty claims.
The court then analyzed whether the beneficiaries presented sufficient evidence to support their claims on the trustees fees and attorney fees:
Frost Bank argues that it was entitled to have this claim dismissed as a matter of law because the Trust vested it with “final and binding” discretion to cause the Trust to incur professional fees related to the administration of the Trust, including the employment of “attorneys” to “prosecute or defend any suit.” The Trust expressly provides that such fees “shall be paid from the Trust.”
However, these provisions did not absolve Frost Bank of its duty to exercise its discretionary powers in good faith and in the interest of the Beneficiaries. See Tex. Prop. Code Ann. § 113.029(a) (“Notwithstanding the breadth of discretion granted to a trustee in the terms of the trust, including the use of terms such as ‘absolute,’ ‘sole,’ or ‘uncontrolled,’ the trustee shall exercise a discretionary power in good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.”); id. § 111.0035(b)(4)(B) (“The terms of a trust prevail over any provision of this subtitle, except that the terms of a trust may not limit . . . a trustee’s duty . . . to act in good faith and in accordance with the purposes of the trust . . . .”); see also Mendell v. Scott, No. 01-20-00578-CV, 2023 Tex. App. LEXIS 5382, 2023 WL 4712050, at *15 (Tex. App.—Houston [1st Dist.] July 25, 2023, pet. denied) (mem. op.) (“[W]hile Texas law generally allows a trustee to incur expenses that are necessary to carry out the purposes of the trust and allows the trustee to be reimbursed from the trust estate for such expenses properly incurred, where an expense is not properly incurred, the trustee is not entitled to reimbursement from the trust estate.”); Stone v. King, No. 13-98-022-CV, 2000 Tex. App. LEXIS 8070, 2000 WL 35729200, at *8 (Tex. App.—Corpus Christi—Edinburg Nov. 30, 2000, pet. denied) (not designated for publication) (“A trustee is not entitled to reimbursement for expenses that do not confer a benefit upon the trust estate, such as those expenses related to litigation resulting from the fault of the trustee.”); Restatement (Third) of Trusts: Power to Incur and Pay Expenses § 88 cmt. d (AM. L. INST. 2007) (explaining that, although it can be a “complicated” question, a “trustee is normally entitled to indemnification for reasonable attorney’s fees and other costs” incurred in defending against unmeritorious claims of trustee misconduct). We therefore look to the nature of each counterclaim and whether it was consistent with Frost Bank’s duty to act in “good faith and in accordance with the terms and purposes of the trust and the interests of the beneficiaries.” See Tex. Prop. Code Ann. § 113.029(a).
The record indicates that Frost Bank acted in good faith and for the benefit of the Beneficiaries when it filed its counterclaims asking the trial court to modify the Trust to allow for the appointment of an individual successor trustee, to accept its resignation and discharge it as trustee, and to appoint an individual successor trustee under the modified terms of the Trust. See id. §§ 112.054(a)(2) (“On the petition of a trustee or a beneficiary, a court may order that the trustee be changed . . . [and] that the terms of the trust be modified . . . if . . . because of circumstances not known to or anticipated by the settlor, the order will further the purposes of the trust . . . .”), 113.081(b) (“The court may accept a trustee’s resignation and discharge the trustee from the trust on the terms and conditions necessary to protect the rights of other interested persons.”), 113.083(a) (“If for any reason a successor is not selected under the terms of the trust instrument, a court may and on petition of any interested person shall appoint a successor in whom the trust shall vest.”). It is undisputed that after Frost Bank sent its resignation notice, there was a continuing need for administration of the Trust (primarily, to pursue claims against the former trustees); that Glenn was unwilling or incapable of serving as an individual successor trustee; that the Trust therefore required a successor corporate trustee to serve as the sole trustee; and that the Beneficiaries were unable to secure a willing corporate trustee within thirty days of the notice. Under these circumstances, the Trust specifically contemplated that it would be necessary for “a court of competent jurisdiction” to appoint a successor corporate trustee “at the expense of the trust estate.” With no corporate trustee available, Frost Bank sought the next best remedy—judicial modification of the trust to allow for the appointment of an individual successor trustee. See id. § 112.054(a)(2).
Importantly, the relief that Frost Bank prayed for was consistent with the Beneficiaries’ wishes, which was for Kenton to serve as the individual successor trustee. And contrary to their suggestion, the Beneficiaries did not have authority to independently modify the Trust and appoint Kenton as the individual successor trustee. The Texas Trust Code grants a settlor, but not a beneficiary, the discretionary authority to “modify or amend a trust that is revocable.” Id. § 112.051(b). Naturally, Turrentine reserved this right exclusively for herself in the Trust instrument. Thus, because Turrentine did not anticipate the circumstances that occurred after her death, judicial modification was the only way forward for the Beneficiaries. See id. § 112.054(a)(2).
Notably, the Beneficiaries had standing to bring the same claims but never did so. See id. §§ 112.054(a)(2), 113.081(b), 113.083(a). With the Beneficiaries unwilling to act, Frost Bank took the lead by filing these counterclaims that sought to accommodate the Beneficiaries’ need to extend the administration of the Trust well beyond Turrentine’s death in 2018. Frost Bank then promptly moved for summary judgment, but the trial court was apparently reluctant to appoint Kenton as trustee, instructing the parties “to find a successor trustee” and ordering Frost Bank to “remain as successor trustee until that time.” Eighteen months after Frost Bank filed its counterclaims and largely due to its efforts, the trial court finally approved Kenton as the individual successor trustee. To be clear, the relief the trial court granted was based exclusively on Frost Bank’s pleadings because the Beneficiaries never filed a pleading asking the trial court to appoint Kenton as the successor trustee. See Tex. R. Civ. P. 301. We conclude that the Beneficiaries failed to establish a prima facie case for their claim that Frost Bank caused the Trust to incur unnecessary attorney fees in bringing these counterclaims. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c).
The Beneficiaries argue that Frost Bank’s request for a declaration “that [it] has not breached its fiduciary duties during its term as Successor Trustee of the Trust” could not have been brought in good faith because, as Kenton stated in his affidavit, such a declaration is necessarily adverse to their interests and only benefits Frost Bank. According to the Beneficiaries, this immutable fact is sufficient to establish a prima facie claim that Frost Bank caused the Trust to incur improper attorney fees in bringing this counterclaim against them. We generally agree.
Frost Bank does not dispute that its counterclaim for declaratory relief is self-serving. It relies instead on its discretionary authority under the Trust to charge the Trust for professional fees related to the administration of the Trust. But as we have already explained, the Trust instrument does not supersede Frost Bank’s statutory duty to act in good faith and in the interest of the Beneficiaries. See Tex. Prop. Code Ann. § 113.029(a). We hold that the Beneficiaries have satisfied their prima facia burden with respect to this particular “waste” claim and that Frost Bank failed to otherwise prove its entitlement to judgment as a matter of law. See Tex. Civ. Prac. & Rem. Code Ann. § 27.005(c), (d).
Id. The court concluded:
We affirm the trial court’s order with respect to the Beneficiaries’ breach of fiduciary claims for failure to “advise and assist,” “obstruction,” and “waste” related to Frost Bank’s declaratory judgment action. We reverse the trial court’s order with respect to the Beneficiaries’ breach of fiduciary claims based on the theory that Frost Bank caused the Trust to incur unnecessary trustee and attorney fees by bringing counterclaims related to the judicial appointment of an individual successor trustee. We remand to the trial court with instructions to enter an amended order and to conduct any other necessary proceedings consistent with this memorandum opinion. Finally, for those legal actions that are being dismissed, the trial court is instructed to award Frost Bank its “court costs and reasonable attorney’s fees incurred in defending against the legal action.”
Id.