Ramirez v. Rodriguez, No. 04-19-00618-CV, 2020 WL 806653 (Tex. App.—San Antonio Feb. 19, 2020, no pet. h.).

Trusts

Trustee Removal

 

Three of four trustees sued to remove the fourth trustee for a laundry list of actions that allegedly constituted a breach of trust. This trustee then moved to dismiss the suit under the Texas Citizens Participation Act claiming that the real reason the three trustees filed for removal was based on his exercise of his right to free speech and to petition. The trial court failed to rule on the motion and thus it was denied by operation of law. The trustee then appealed.

 

The appellate court affirmed. The court began its analysis by assuming, without deciding, that the removal claim was indeed based on the trustee’s exercise of free speech and right to petition. The court then examined whether the three trustees “established a prima facie case for their removal claim by clear and specific evidence.” The evidence showed that the trustee had taken many hostile actions which impeded trust performance. Thus, the motion to dismiss under the TCPA was properly denied. The court then remanded so the trial court could determine whether filing a TCPA motion was frivolous or intended only to delay so that an award of court costs and attorney’s fees would be possible.

 

Moral:  Opposing a motion to be removed as a trustee by alleging that the motion is actually interfering with free speech or the right to petition is a clever technique but one which is, in my opinion, likely to fail and be deemed frivolous and intended only to delay the removal proceeding.

 

 



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