                                                                                        ACCEPTED
                                                                                    04-15-00507-CV
                                                                        FOURTH COURT OF APPEALS
                                                                             SAN ANTONIO, TEXAS
                                                                              11/20/2015 5:19:15 PM
                                                                                     KEITH HOTTLE
                                                                                             CLERK


                  No. 04-15-00507-CV
                IN THE COURT OF APPEALS                            FILED IN
                                                            4th COURT OF APPEALS
            FOR THE FOURTH DISTRICT OF TEXAS                 SAN ANTONIO, TEXAS
                     AT SAN ANTONIO                         11/20/2015 5:19:15 PM
                                                                KEITH E. HOTTLE
                                                                     Clerk
                THOMAS MILTON BENSON
                   AS TRUSTEE OF THE
        SHIRLEY L. BENSON TESTAMENTARY TRUST,
                                               Appellant,
                                v.
       PHIL HARDBERGER AND DYKEMA COX SMITH,
                                               Appellees.

       Appeal from Probate Court No. 2, Dallas County, Texas,
               Trial Court Cause 155,572 & 155,572-A


                 BRIEF OF APPELLANT
                                     BECK REDDEN LLP
                                        David J. Beck
                                        State Bar No. 00000070
                                        Russell S. Post
                                        State Bar No. 00797258
                                        rpost@beckredden.com
                                        Troy Ford
                                        State Bar No. 24032181
                                        tford@beckredden.com
                                        Owen J. McGovern
                                        State Bar No. 24092804
                                        omcgovern@beckredden.com
                                     1221 McKinney, Suite 4500
                                     Houston, TX 77010
                                     (713) 951-3700
                                     (713) 951-3720 (Fax)
   COUNSEL FOR APPELLANT, THOMAS MILTON BENSON, JR.,
AS TRUSTEE OF THE SHIRLEY L. BENSON TESTAMENTARY TRUST

                                                  Oral Argument Requested
                      IDENTITY OF PARTIES AND COUNSEL

Appellant:

Thomas Milton Benson, Jr.,
as Trustee of the Shirley L. Benson Testamentary Trust

Counsel for Appellant on Appeal and Trial Court:

David J. Beck
Russell S. Post
Troy Ford
Owen J. McGovern
BECK REDDEN LLP
1221 McKinney Street, Suite 4500
Houston, Texas 77010-2010

Counsel for Appellant in the Trial Court:

Phillip A. Wittmann
(Admitted pro hoc vice in probate court)
STONE PIGMAN WALTHER
       WITTMANN L.L.C.
546 Carondelet Street
New Orleans, Louisiana 70130-3558

Appellees:

Phil Hardberger and Dykema Cox Smith

Counsel for Appellees on Appeal and in the Trial Court:

Ellen B. Mitchell
DYKEMA COX SMITH
112 E. Pecan St., Suite 1800
San Antonio, TX 78205




1884.1/570714
Interested Party:        Renee Benson (Plaintiff in underlying litigation)

Counsel for Renee Benson:

Bennett L. Stahl                        Harriet O’Neill
CURL STAHL GEIS                         LAW OFFICE OF HARRIET O’NEILL, P.C.
700 N. St. Mary’s Street, Suite 1800    919 Congress Avenue, Suite 1400
San Antonio, TX 78205                   Austin, Texas 78701

Emily Harrison Liljenwall               Douglas Alexander
State Bar No. 12352250                  ALEXANDER, DUBOSE, JEFFERSON &
SCHOENBAUM, CURPHY &                          TOWNSEND LLP
      SCANLAN, P.C.                     515 Congress Ave., Suite 2350
112 E. Pecan, Suite 3000                Austin, Texas 78701
San Antonio, Texas 78205


Interested Party:        Arthur H. Bayern (Co-Receiver in underlying litigation)

Counsel for Arthur H. Bayern:

Steven R. Brook
Langley & Banack, Inc.
745 E. Mulberry, Ste. 900
San Antonio, TX 78212


Trial Court:        Judge Tom Rickhoff
                    Bexar County Probate Court #2
                    100 Dolorosa, Room 117
                    San Antonio, TX 78205-3002




1884.1/570714                           ii
                                              TABLE OF CONTENTS
                                                                                                                      Page
Identity of Parties and Counsel ...................................................................................i

Table of Contents ..................................................................................................... iii

Table of Authorities ................................................................................................... v
Statement of the Case............................................................................................. viii

Statement Regarding Oral Argument .......................................................................ix

Issues Presented ......................................................................................................... x

Introduction ................................................................................................................ 1
Statement of Facts ...................................................................................................... 2

Summary of Argument .............................................................................................. 9
Standard of Review .................................................................................................. 10

Argument.................................................................................................................. 11

I.         It is an abuse of discretion to award fees for activities outside the
           scope of Appellees’ appointment. ................................................................. 11
           A.      Appellees began charging the Trust before any hearing was
                   held on the appointment. ...................................................................... 12

           B.      Appellees likewise cannot charge the Trust for services
                   rendered before the appointment took effect. ....................................... 14

           C.      Appellees’ plea in intervention was forbidden by the explicit
                   terms of the appointment and provided no value to the Trust. ............. 18

II.        Nothing in the record can support the probate court’s conclusion
           that Receiver’s hourly rate is reasonable. ....................................................... 21

           A.      Legal fees are not evidence of receiver’s fees. ..................................... 21

           B.      Appellees’ requested fees are unreasonable. ........................................ 24


1884.1/570714                                                iii
III.       Appellees are not entitled to full payment until after a full
           accounting and discharge of the receivership. ................................................ 26

Prayer ....................................................................................................................... 29

Certificate of Service ............................................................................................... 31

Certificate of Compliance ........................................................................................ 32
APPENDIX
           Order Granting First Application for Payment of Fees of Co-
           Receiver Phil Hardberger and Dykema Cox Smith (CR 471).................Tab A
           Order Authorizing Payment of Appointee Fee (CR 472 – 73) ............... Tab B
           Second Amended Order Granting Injunction, Suspending
           Trustee & Appointing Limited Temporary Co-Receivers with
           Restrictions1 ............................................................................................. Tab C
           Letter from Judge Rickhoff to Co-Receivers dated March 8,
           20152 ........................................................................................................Tab D
           Excerpts from Application for Payment of Temporary Co-
           Receiver’s Fees and Expenses filed by Arthur H. Bayern3 ..................... Tab E
           Letter from Judge Rickhoff to Co-Receivers dated June 26,
           20154 ........................................................................................................ Tab F




1
  The copy of this order included in the record does not contain all pages of the order. Appellant
is requesting a supplemental clerk’s record containing a complete copy of this order.
2
    Appellant is requesting a supplemental clerk’s record containing this letter.
3
    Appellant is requesting a supplemental clerk’s record containing this application.
4
    Appellant is requesting a supplemental clerk’s record containing this letter.


1884.1/570714                                                  iv
                                           TABLE OF AUTHORITIES

Case                                                                                                            Page(s)

Baumgarten v. Frost,
  186 S.W.2d 982 (Tex. 1945) .............................................................................. 21

Bergeron v. Sessions,
   561 S.W.2d 551 (Tex. App.—Dallas
   1977, writ ref’d n.r.e.) ..................................................................................passim

Carlton v. Bos,
  281 S.W.2d 131 (Tex. Civ. App.—Beaumont
  1955, no writ) ...................................................................................................... 17

Clay Expl., Inc. v. Santa Rosa Operating, LLC,
   442 S.W.3d 795 (Tex. App.—Houston
   [14th Dist.] 2014, no pet.) ................................................................................... 12

Congleton v. Shoemaker,
  09-11-00453-CV, 2012 WL 1249406
  (Tex. App.—Beaumont Apr. 12, 2012, pet. denied) .......................................... 27
Cont’l Homes Co. v. Hilltown Prop. Owners Ass’n, Inc.,
  529 S.W.2d 293 (Tex. Civ. App.—Fort Worth
  1975, no writ) ...................................................................................................... 17
Elizondo v. Krist,
   15 S.W.3d 259 (Tex. 2013)................................................................................. 24

In re Estate of Herring,
    983 S.W.2d 61 (Tex. App.—Corpus Christi
    1998, no pet.) ...................................................................................................... 16

Ford Motor Co. v. Chacon,
  370 S.W.3d 359 (Tex. 2012) ........................................................................11, 13

Harmon v. Schoelpple,
  730 S.W.2d 376 (Tex. App.—Houston
  [14th Dist.] 1987, no writ) .................................................................................. 16




1884.1/570714                                                v
Harrington v. Schuble,
  608 S.W.2d 253 (Tex. Civ. App.—Houston
  [14th Dist.] 1980) ................................................................................................ 27

Ex parte Hodges,
   625 S.W.2d 304 (Tex. 1981) ..................................................................12, 13, 14
Hodges v. Peden,
  634 S.W.2d 8 (Tex. App.—Houston
  [14th Dist.] 1982, no writ) ......................................................................11, 23, 28

King Land & Cattle Corp. v. Fikes,
   414 S.W.2d 521, 525 (Tex. Civ. App.—Fort Worth
   1967, writ ref’d n.r.e.) ......................................................................................... 16
Kotz v. Murariu,
  04-12-00420-CV, 2013 WL 6205457
  (Tex. App.—San Antonio Nov. 27, 2013, no pet.).......................................23, 24
Mid-Continent Supply Co. v. Conway,
  240 S.W.2d 796 (Tex. Civ. App.—Texarkana
  1951, writ ref’d n.r.e.) ...................................................................................12, 13

Moyer v. Moyer,
  183 S.W.3d 48 (Tex. App.—Austin
  2005, no pet.) ....................................................................................11, 22, 25, 27
O’Connor v. O’Connor,
  320 S.W.2d 384, 391 (Tex. App.—Dallas
  1959, writ dism’d)............................................................................................... 16

Patton v. Powell,
   93 S.W.2d 800 (Tex. Civ. App.—Fort Worth
   1936, writ dism’d)............................................................................................... 20

Reiss v. Reiss,
   118 S.W.3d 439 (Tex. 2003) ........................................................................12, 19
Rogers v. Boykin,
  286 S.W.2d 440 (Tex. Civ. App.—Eastland
  1956, no writ) ...................................................................................................... 17



1884.1/570714                                              vi
STATUTES AND RULES
Tex. Civ. Prac. & Rem. Code § 64.023 ................................................................... 16

Tex. R. App. P. 33.1(d) ............................................................................................ 22



OTHER AUTHORITIES
1A West’s Tex. Forms,
  Cred. Rem. & Debt. Rights § 15:4 (4th ed.) ....................................................... 28

65 Am. Jur. 2d Receivers § 236 (2015) ................................................................... 21
75 C.J.S. Receivers
   § 136.................................................................................................................... 12
   § 158.................................................................................................................... 20
   § 166..............................................................................................................13, 18
   § 185..............................................................................................................13, 18




1884.1/570714                                                vii
                            STATEMENT OF THE CASE

Nature of the case             This case concerns the propriety of an award of
                               fees to a receiver (and his law firm) appointed to
                               manage a testamentary trust.


Course of proceedings          Receiver and his law firm filed an application for
                               payment of receiver’s fees. In response, Mr.
                               Benson filed objections to the requested fees. No
                               hearing was held on the application.


Trial Court’s Disposition      On July 8, 2015, the probate court signed orders
                               awarding the entirety of the requested receiver
                               fees. See Tabs A & B.




1884.1/570714                         viii
                     STATEMENT REGARDING ORAL ARGUMENT

           Mr. Benson requests oral argument. Oral argument will aid the decisional

process, as a detailed discussion of the facts will make it clear that the probate

court’s orders lacked any basis in law or fact.




1884.1/570714                              ix
                                   ISSUES PRESENTED

I.         Whether a receiver may charge the receivership estate for actions (1) taken
           before he took office or (2) explicitly forbidden by the terms of his
           appointment.

II.        Whether proof of a “reasonable attorney’s fee” constitutes evidence of a
           “reasonable receiver’s fee.”

III.       Whether a court may award a receiver the full amount of his fees without a
           final accounting and discharge of the receivership.




1884.1/570714                               x
                                    INTRODUCTION

           In early February, the probate court held a two-day hearing on petitioner’s

request for a temporary injunction. At the conclusion of that hearing, the court

announced that it would appoint receivers to take over management of the Shirley

L. Benson Testamentary Trust. Mr. Benson, the trustee of the Trust, was shocked.

He had received no notice that the probate court was even considering appointing

receivers. But as Mr. Benson would soon learn, the court had been working on its

undisclosed plan for some time.

           When the receivers produced their billing records in connection with their

request for payment of their fees, many irregularities came to light. Not only had

the probate court been communicating ex parte with the receivers regarding their

contested fee applications, but the bills show that the receivers had charged the

Trust thousands of dollars for work done well before the trial court signed an order

appointing them. They also billed for work done before their appointment became

effective and for work the probate court specifically excluded from their authority.

           Mr. Benson objected to the payment of these fees. But the probate court

awarded the full request for fees to both of the receivers—Phil Hardberger (and his

firm, Dykema Cox Smith) and Art Bayern. Mr. Benson appealed those fee awards.

The dispute over Mr. Bayern’s fees has been resolved. Accordingly, this appeal

concerns only the fees awarded to Mr. Hardberger (“Receiver”) and his firm

(collectively, “Appellees”).
1884.1/570714
                                     STATEMENT OF FACTS

           Appellees’ actions in this case are hard to reconcile with the law. While

receivers are certainly entitled to payment for their service, it is axiomatic that they

are only entitled to payment for service that is properly authorized by the court and

in conformity with statutory requirements. But as detailed below, Appellees have

sought hundreds of thousands of dollars for unauthorized work.

                Appellees start billing the Trust before any hearing is ever held.

           While Mr. Benson had no idea that the probate court was even considering

the appointment of receivers, for Appellees, the issue was never in doubt.

Receiver began charging the Trust for his actions five days before the probate court

signed the order appointing temporary co-receivers. CR 277; CR 77. His law

firm, Dykema Cox Smith (“the Firm”), also began billing time for this case before

the probate court began the hearing on the temporary injunction. CR 289; CR 28.

           For example, on February 3—one day before the hearing—the Firm billed

$5,847.50 to the Trust. CR 289. These entries include, among other things:

“meeting with P. Hardberger regarding background facts of the Shirley L. Benson

testamentary trust dispute” and “preliminary review of assets in controversy.” Id.

Thus, while Mr. Benson’s attorneys worked diligently to defend against

Petitioner’s requested temporary injunction, Appellees were already at work

preparing to take control of the Trust.



1884.1/570714                                   2
           The entries for February 4—which was the first day of the temporary

injunction hearing—seek compensation for: “Meeting with P. Hardberger

regarding his powers and duties as court-appointed receiver and issues regarding

his fees and compensation (.5),” “Analyz[ing] issues relating to appointment of

receivers (4.0),” and “Work[ing] on Order Appointing Receiver (1.5).” The bill

for this time came to $3,393.50. CR 289-290..

       Appellees continue to bill the Trust for time before their appointment.

           At the close of evidence on February 5, 2015, the probate court

announced—for the first time—that it intended to appoint temporary co-receivers

to manage the Trust during litigation. The Firm, however, was not surprised, as it

had already managed to charge the Trust an additional $4,163.50 that day. CR

290. The Receiver also personally charged the Trust $600 before the probate

court’s February 5 announcement, as he “[a]ttend[ed] [the] Court session at request

of Judge Tom Rickhoff (1.0).” CR 277.

           Once the probate court announced its intent to appoint temporary co-

receivers, the Receiver charged the Trust an additional $1,200 that same afternoon.

Id.. Of this amount, $600 was for meeting with the attorneys, who had just become

aware that a receivership was being considered. Id. And remarkably, the Receiver

charged an additional $600 for appearing before the media or, as his bill puts it:




1884.1/570714                            3
“interview with several members of the press including the San Antonio Express-

News, Bloomberg News, New Orleans Advocate, and others.” Id.

           While the probate court had announced its intention to appoint the Receiver

on February 5, it informed the parties that it would not sign an order until February

9. Despite this fact, Appellees continued to work the case and bill the Trust for

their time, charging the Trust an additional $11,559 on February 6, 7, and 8. CR

277, 290-293.

           Taken together, Appellees charged the Trust $26,261 for work performed

before the probate court ever signed an order authorizing them to take any action

on behalf of the Trust—$6,545 of those fees were incurred before the hotly

contested hearing began and an additional $14,702 were for actions taken before

the probate court announced its intent to appoint a temporary receiver.

                   Appellees continues to bill the Trust for time spent
                      before the appointment became effective.

           On Monday, February 9, the probate court finally signed an order regarding

the temporary receivership, styled the “Order Suspending Trustee & Appointing

Temporary Co-Receivers with Restrictions.” CR 70. While this order granted

Receiver the power to act as a Co-Receiver over the Trust’s assets, it did not take

effect immediately. Rather, it was expressly conditioned upon Receiver filing the

required bond. CR 72 (“On filing their bonds, together with the oath prescribed by

law, the Receivers are authorized, subject to the control of this Court, to do any

1884.1/570714                               4
and all acts necessary to the proper and lawful conduct of the Receivership . . . .”)

(emphasis added). The order was amended several times, eventually resulting in

the “Second Amended Order Granting Injunction, Suspending Trustee, and

Appointing Limited Temporary Co-Receivers with Restrictions” that currently

governs the Co-Receivers’ conduct. CR 125.

           Continuing to disregard the details of his authorization to act as Co-

Receiver, Appellees immediately began aggressively exercising their powers

without bothering to file the required bond. By the time Receiver finally satisfied

the pre-conditions of his appointment on February 20, 2015, Appellees had

charged an additional $102,411 to the Trust. CR 278-282; CR 293-308. In all,

Appellees charged the Shirley L. Benson Testamentary Trust $129,872 before they

were authorized to take a single action on the Trust’s behalf.

                     Appellees bill the Trust for actions they were
                         explicitly forbidden to undertake.

           In addition to seeking payment for actions taken before Receiver was

authorized to do anything, Appellees also sought payment for actions that were

explicitly forbidden by the probate court’s order. The order provides that “the

powers and duties of the temporary co-receivers are prescribed by this Order.” CR

76. It also contains a complete list of the powers granted to the Co-Receivers. CR.

73-76. That list, however, does not include the power to file a plea in intervention

without the probate court’s consent. Indeed, as stated in both the First Amended

1884.1/570714                              5
Order—signed February 18, 2015—and the Second Amended Order, it is only

“[w]ith the Court’s consent” that the receivers may “institute, prosecute,

compromise, adjust, intervene in, or become party to such actions or proceedings

in state or federal courts.” CR 92; Tab C at 7, ¶ 5(l) (emphasis added).

           Despite the order’s unambiguous language, Appellees researched, drafted,

and filed a plea in intervention on March 2, 2015. CR 128. They did so without

requesting or obtaining the probate court’s consent. In fact, the probate court

specifically rejected Appellees’ request to file the plea in a letter dated March 9,

2015, stating that: “the costs of [the receivers’] new efforts no longer can equal

[their] reasonable benefits” and that it “should not be [the receivers’] Syspusian

task” to pursue issues properly resolved in other proceedings. Tab D at 1. The

probate court concluded by instructing Appellees to “[s]ubmit your current bill and

30 day report, then stop.” Tab D at 1, 2. Despite this letter, Appellees refused to

voluntarily dismiss the unauthorized plea for weeks—until March 24, 2015: the

same day Trustee filed its motion to dismiss the plea in intervention with prejudice.

           Nonetheless, Appellees sought fees for filing the plea in intervention—even

though it violated the express terms of Appellees’ authority, was explicitly rejected

by the probate court, and was eventually voluntarily dismissed by Appellees

themselves. Their fee application sought $64,778.28 for performing this work.

See CR 281-82, 284, 298-320.


1884.1/570714                               6
                The probate court approves the fee requests after undisclosed,
                            ex parte meetings with the receivers.

           On June 26, 2015 the Co-Receivers filed their fee applications. CR 246. That

same day, Judge Rickhoff held a conference with the Co-Receivers on their

“application for fees as expenses.” Tab E at 2. Within hours, the probate court sent

a letter to the parties, stating that it had reviewed the fee application and would be

“authorizing payment of the debts in 10 days.” Tab F at 2.

           Mr. Benson filed his “Objections to Payment of Receivers’ Certain Fees and

Costs” on July 6, 2015. CR 426. The day after Mr. Benson filed his objections,

Judge Rickhoff held a telephone conference with the Co-Receivers regarding those

objections. Tab E at 3. Mr. Benson was not included in the conference with Judge

Rickhoff.

           The following day, Judge Rickhoff left the Co-Receivers a telephone

message regarding their pending applications and held yet another “telephone

conference” with the Co-Receivers and “Liz McDevitt, Probate Auditor on

pending applications, including bills from . . . Phil Hardberger, Dykema Cox

Smith, Arthur Bayern, Langley & Banack.” Tab E at 4. Mr. Benson was not

included in these conferences, either.

           The Co-Receivers’ fees—including $333,786.50 for Appellees—were

approved in full later that day. CR 471-474. Mr. Benson was never informed of

that decision. It was not until the Co-Receivers and their attorneys attempted to

1884.1/570714                                 7
withdraw the funds from the Trust’s bank accounts—nearly one month later—that

Mr. Benson became aware that the probate court had granted the receivers’

applications for nearly half a million dollars in fees.

                     Mr. Benson appeals the probate court’s order.

           Unfortunately, the numerous ex parte communications1 and a minimal

adherence to procedural safeguards complicated this case. Indeed, it was the

probate court’s failure to observe basic procedural safeguards—such as choosing

receivers without holding a receivership hearing—that led Mr. Benson to file this

appeal.

           Mr. Benson alleges that the probate court abused its discretion by awarding

Appellees the full amount of their fees. Specifically, he complains that (1) the

majority of Appellees’ fees were incurred for actions outside the scope of his

authority, (2) there is no evidence to support the conclusion that Receiver’s $600

per hour fee is reasonable, and (3) it was legal error to grant Receiver the full

amount of his fees without also dissolving the receivership.




1
  This is not to suggest that a trial court may never confer privately with an appointed receiver.
But such ex parte communications cannot be justified when they concern a dispute over a
receiver’s request for payment of his own fees.


1884.1/570714                                   8
                              SUMMARY OF ARGUMENT

           Following an ex parte meeting on Appellees’ contested motion for payment

of receivers’ fees, the probate court approved $333,786.50 in fees to Appellees for

approximately four-and-a-half months of work.         More than one-third of that

amount—$129,872.00—was for work conducted before Appellees had any

authority to act as receivers. The court approved an additional $64,778.28 in fees

for work associated with Appellees’ ill-fated plea in intervention, which they were

explicitly forbidden from filing under the terms of the appointment. In total, more

than half of the fees paid to Appellees were for actions taken outside the term of

Receiver’s appointment and the scope of his authority. This does not include the

charges for Appellees’ press conferences—which provided no value to the Trust.

The orders should be reversed as to the fees awarded for these unauthorized

services.

           The probate court’s orders should also be reversed for two additional

reasons. First, there is no evidence to support Receiver’s right to charge $600 per

hour for his services as receiver. Second, the probate court awarded Receiver the

full value of his services without discharging the receivership—a clear violation of

the laws of the State of Texas.




1884.1/570714                              9
                                 STANDARD OF REVIEW

           Courts “review [a] trial court’s fee award for an abuse of discretion, which

occurs when the trial court rules (1) arbitrarily, unreasonably, or without regard to

guiding legal principles, or (2) without supporting evidence.” Ford Motor Co. v.

Chacon, 370 S.W.3d 359, 362 (Tex. 2012). A receiver’s fees should be sufficient

to induce competent persons to serve. Bergeron v. Sessions, 561 S.W.2d 551, 555

(Tex. App.—Dallas 1977, writ ref’d n.r.e.). However, “receiverships should also

be administered as economically as possible, and fees for services performed by

these court officers should be moderate rather than generous.” Id.

           A receiver’s fee should be measured by the value of the services rendered,

and there must be evidence to establish the reasonableness of the fee. Moyer v.

Moyer, 183 S.W.3d 48, 57–58 (Tex. App.—Austin 2005, no pet.). To determine

the value of a receiver’s services, courts consider: (1) the nature, extent and value

of the administered estate; (2) the complexity and difficulty of the work; (3) the

time spent; (4) the knowledge, experience, labor and skill required of, or devoted

by the receiver; (5) the diligence and thoroughness displayed; and (6) the results

accomplished. Bergeron, 561 S.W.2d at 554–55. When a receiver also acts as an

attorney, the receiver’s fees for his services as attorney to the receivership should

be set separately from the fees for his services as a receiver. Hodges v. Peden, 634

S.W.2d 8, 11 (Tex. App.—Houston [14th Dist.] 1982, no writ).



1884.1/570714                               10
                                       ARGUMENT

           On July 8, 2015, the probate court awarded Appellees $333,786.50 in

receiver’s fees for approximately four-and-a-half month’s worth of work.           Its

conclusion that this constituted a reasonable fee for the value delivered is a clear

abuse of discretion, lacking any basis in guiding legal principles or the evidence

presented in this case.

I.         It is an abuse of discretion to award fees for activities outside the scope
           of Appellees’ appointment.

           No principle of law can justify the probate court’s decision to award

Appellees fees for actions taken before Receiver was appointed.            It is well-

established that “[a] receiver has only that authority conferred by the Court’s order

appointing him.” Ex parte Hodges, 625 S.W.2d 304, 306 (Tex. 1981); see also 75

C.J.S. Receivers § 136 (“A receiver must not exceed the authority granted by the

court.”); Clay Expl., Inc. v. Santa Rosa Operating, LLC, 442 S.W.3d 795, 800 (Tex.

App.—Houston [14th Dist.] 2014, no pet.). An order appointing a receiver and

defining his powers is interpreted “in light of the literal language used if that

language is unambiguous.”         Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003)

(internal quotation marks omitted). The binding effect of a receiver’s actions “are to

be tested by his authority”—as laid out in the court’s order appointing him—“and

not by his good faith.” Mid-Continent Supply Co. v. Conway, 240 S.W.2d 796, 803

(Tex. Civ. App.—Texarkana 1951, writ ref’d n.r.e.).


1884.1/570714                               11
           “These rules are elemental in receiverships.” Id. Further, “[a]n estate in

receivership is not chargeable for services rendered or expenses incurred by a

receiver while acting outside the authority conferred on him or her.” 75 C.J.S.

Receivers § 166; see also id. § 185 (“A receiver will be personally charged with the

resulting loss when it goes outside the plain letter of its authority as contained in the

governing statutes and the orders of the court by which appointed even though

acting in bona fide for what it believes to be in the best interests of the estate.”).

           Appellees’ fee application sought compensation for actions that were either

(1) taken before Receiver had authority to act on the Trust’s behalf or (2) in

violation of the unambiguous restrictions on his authority. The probate court clearly

exceeded the bounds of discretion by allowing Appellees to charge the Trust for

unauthorized actions.

           A.    Appellees began charging the Trust before any hearing was held on
                 the appointment.

           The probate court abused its discretion by awarding Appellees $26,261 in fees

for actions taken before February 9, 2015. “A receiver has only that authority

conferred by the Court’s order appointing him.” Ex parte Hodges, 625 S.W.2d 304,

306 (Tex. 1981). As such, a trial court abuses its discretion when it awards a

receiver fees for activities performed without an appointment order. See Ford Motor

Co. v. Chacon, 370 S.W.3d 359, 363 (Tex. 2012) (“Therefore, the trial court abused




1884.1/570714                                12
its discretion by awarding [guardian ad litem] fees for activities that he performed

without a written appointment order.”).

           On February 4 and 5, the probate court conducted a two-day hearing on

Petitioner’s motion for temporary injunction. At the conclusion of that hearing, the

court announced that it was considering appointing temporary receivers to

administer the Trust pending litigation. However, it was not until Monday, February

9, that the probate court issued its “Order Suspending Trustee & Appointing

Temporary Co-Receivers with Restrictions.” CR 77. This is the first document

purporting to grant Appellees any power to act on behalf of the Trust. Ex parte

Hodges, 625 S.W.2d at 306 (“[a] receiver has only that authority conferred by the

Court’s order appointing him.”).

           Thus, Appellees were not authorized to charge the Trust for their services

until after the probate court entered its order on February 9, 2015. Any award of

fees before that date would be an abuse of discretion.

           The record demonstrates that the probate court allowed Appellees to charge

the Trust for services performed before the court appointed the temporary co-

receivers. The first entry submitted by Appellees in this case is dated February 2,

2015—two days before the probate court began its hearing on whether to grant a

temporary injunction—seeking $697.50 in compensation. The record also reveals

charges against the Trust on February 3, 4, 5, 6, 7, and 8.


1884.1/570714                              13
           Taken together, the probate court’s abuse of discretion allowed Appellees to

collect $26,261 in receiver’s fees for services performed without any authority. Of

these fees, $6,545 were incurred before the commencement of the court’s hotly

contested hearing temporary injunction hearing, and an additional $14,702 were for

actions taken before the probate court ever announced its intent to appoint a

temporary receiver. Because a receiver derives his authority solely from the text of

a court order and cannot charge a Trust for acts outside its authority, the probate

court abused its discretion by awarding Appellees fees for activities performed

without a written order.

           B.    Appellees likewise cannot charge the Trust for services rendered
                 before the appointment took effect.

           Although the probate court’s February 9 order granted Appellees authority to

act on the Trust’s behalf, that order did not take effect immediately. Rather, it was

expressly conditioned upon Receiver, his Co-Receiver Art Bayern, and Petitioner—

Renee Benson—filing their bonds and executing the required oaths. CR 72 (“On

filing their bonds, together with the oath prescribed by law, the Receivers are

authorized, subject to the control of this Court, to do any and all acts necessary to the

proper and lawful conduct of the Receivership . . . .”) (emphasis added). Thus, the

order granting Receiver his power over the Trust makes it clear that he is not

authorized to take any action until all appropriate bonds are filed.




1884.1/570714                               14
           Texas law plainly requires the Co-Receivers to post bond before exercising

their authority. Section 64.023 of the Texas Civil Practice and Remedies Code

provides that:

           Before a person assumes the duties of a receiver, he must execute a
           good and sufficient bond that is:

                 (1)   approved by the appointing court;

                 (2)   in an amount fixed by the court; and

                 (3)   conditioned on faithful discharge of his duties as receiver
                       in the named action and obedience to the orders of the
                       court.

Tex. Civ. Prac. & Rem. Code § 64.023 (emphasis added).

           The posting of both the applicant’s and receiver’s bonds are not a mere

formality or technicality. Texas courts have long held that the “[f]iling of the

applicant’s bond is a condition precedent to the right of the receiver to function as

such.” In re Estate of Herring, 983 S.W.2d 61, 64 (Tex. App.—Corpus Christi

1998, no pet.) (citing King Land & Cattle Corp. v. Fikes, 414 S.W.2d 521, 525 (Tex.

Civ. App.—Fort Worth 1967, writ ref’d n.r.e.)); see also Harmon v. Schoelpple, 730

S.W.2d 376, 379 (Tex. App.—Houston [14th Dist.] 1987, no writ) (“The

requirement of a bond is an essential element of receivership. The absence of a

bond is error.”) (citing O’Connor v. O’Connor, 320 S.W.2d 384, 391 (Tex. App.—

Dallas 1959, writ dism’d)).




1884.1/570714                               15
           A trial court commits reversible error if it appoints a receiver without setting

the amount of bond and requiring that the bond be posted. Cont’l Homes Co. v.

Hilltown Prop. Owners Ass’n, Inc., 529 S.W.2d 293, 295 (Tex. Civ. App.—Fort

Worth 1975, no writ) (“The trial court committed reversible error in appointing a

receiver to take charge of defendants’ business and property without setting the

amount of the applicant’s bond and without requiring the applicant to post an

applicant’s bond as is required by Rule 695a.”). A trial court can correct its error by

requiring the receiver and applicant to post the necessary bonds before an appeal is

taken. Carlton v. Bos, 281 S.W.2d 131, 132 (Tex. Civ. App.—Beaumont 1955, no

writ) (“The order appointing the receiver without requiring a bond by the applicant

was not void, but merely voidable. It was an error which could be corrected by the

trial court, and this has been done.”).2 In such a case, the initial defect does not

render the appointment void, but merely “prevents the appointment from becoming

effective until the oath and bond are filed.” Rogers v. Boykin, 286 S.W.2d 440, 443




2
  A further exception to this rule—inapplicable here—allows a later-filed bond to cure an
otherwise deficient receivership order from the date of the original application if the court’s
order specifically finds that such relief is warranted. See Bos, 281 S.W.2d at 132 (“Said order
provided that such bond filed by appellee should be effective from the date when the application
for receivership was filed.”). However, because nothing in the probate court’s order suggests
that the bond “should be effective from the date when the application for receivership was filed,”
the general rule applies. See Rogers, (“the failure of a receiver to file the required oath and
bond . . . prevents the appointment from becoming effective until the oath and bond are filed.”).



1884.1/570714                                  16
(Tex. Civ. App.—Eastland 1956, no writ). Accordingly, Receiver’s appointment did

not become effective until the bonds were posted.

           Despite the fact that the appointment did not take effect until February 20, the

probate court granted the application for $129,8723 in fees incurred before that date,

i.e., before Receiver posted the bonds required as a precondition of his authority.

This fact alone constitutes an abuse of discretion, as “[a]n estate in receivership is

not chargeable for services rendered or expenses incurred by a receiver while acting

outside the authority conferred on him or her.” 75 C.J.S. Receivers § 166; see also

id. § 185 (“A receiver will be personally charged with the resulting loss when it goes

outside the plain letter of its authority as contained in the governing statutes and the

orders of the court by which appointed even though acting in bona fide for what it

believes to be in the best interests of the estate.”).

           These fees were incurred before Receiver had authority to take any action on

behalf of the Trust. Because “[a]n estate in receivership is not chargeable for

services rendered or expenses incurred by a receiver while acting outside the

authority conferred on him or her,” the probate court abused its discretion by

reimbursing Appellees for their ultra vires actions.



3
  Appellees incurred $102,411 in fees between February 9—the date of the first order appointing
Hardberger as Co-Receiver—and February 20—the date the order was rendered effective by the
filing of Hardberger’s proper bonds. The remaining $27,461 in fees were incurred before the
February 9 order, and cannot be collected for the reasons discussed supra, Part I.B.


1884.1/570714                                 17
           C.    Appellees’ plea in intervention was forbidden by the explicit terms
                 of the appointment and provided no value to the Trust.

           The probate court further abused its discretion by granting Appellees

$64,778.28 for drafting and filing their plea in intervention—an action that (1) was

explicitly forbidden by the terms of their appointment and (2) provided absolutely

no benefit to the Trust. Because an order appointing a receiver and defining his

powers is interpreted “in light of the literal language used if that language is

unambiguous,” Reiss v. Reiss, 118 S.W.3d 439, 441 (Tex. 2003) (internal quotation

marks omitted), the prohibition places such action squarely outside Appellees’

authority, and therefore beyond their right to seek compensation from the Trust.

           The court’s Second Amended Order provides that “[t]he powers and duties of

the temporary co-receivers are set forth in this Order,” Tab C at 1, and that “the

powers and duties of the temporary co-receivers are prescribed by this Order.”

Tab C at 7. The order also contains a complete list of the powers granted to the

Co-Receivers. See Tab C at 5-7. That list, however, does not include the power to

file a plea in intervention without the Court’s consent. Indeed, as stated in the

Order, it is only “[w]ith the Court’s consent” that the Co-Receivers may “institute,

prosecute, compromise, adjust, intervene in, or become party to such actions or

proceedings in state or federal courts.” Tab C at 7, ¶ 5(l) (emphasis added); see

also CR 92 (First Amended Order, February 18, 2015).




1884.1/570714                              18
           Despite this unambiguous language, Appellees filed a plea in intervention

without requesting or obtaining the probate court’s consent. Lest there be any

doubt about the impropriety of Appellees’ filing, the probate court wrote Appellees

a letter explicitly denying consent to pursue the intervention, stating that: “the costs

of [the Co-Receivers’] new efforts no longer can equal [their] reasonable benefits”

and that it “should not be [the Temporary, Limited Co-Receivers’] Syspusian task”

to pursue issues properly resolved in other proceedings. Tab D at 1. The probate

court concluded by instructing the Co-Receivers to “[s]ubmit your current bill and

30 day report, then stop.” Tab D at 1, 2.

           That the majority of these fees—$62,378.28—are sought by the Firm, rather

than Receiver, is of no importance. “So well settled is the rule that a receiver has no

authority to deal with or expend the trust property without the authorization or

approval of the court that all persons dealing with a receiver are bound to take notice

of the extent of and the limitations upon his authority, and so deal with him at their

peril in so far as concerns the liability of the trust estate.” Patton v. Powell, 93

S.W.2d 800, 803 (Tex. Civ. App.—Fort Worth 1936, writ dism’d) (quoting 53 C.J.S.

§ 158).

           Specifically, the “[s]ervices of an attorney outside the authority of a receiver

to employ may not be charged by the receiver against the estate in receivership. The

rule has been expressed that there must be a real occasion for the employment of


1884.1/570714                                 19
counsel, and if there is no necessity shown for the employment, the court will not

ordinarily allow his or her fees as a necessary expense.” 65 Am. Jur. 2d Receivers

§ 236 (2015). The rationale of this rule is long-standing and sound: “One dealing

with a receiver is charged with the knowledge of the law that the authority of the

receiver is limited to that given by the court.” Baumgarten v. Frost, 186 S.W.2d

982, 987 (Tex. 1945). The rule applies with full force where, as here, the court’s

order explicitly prohibited Appellees from filing a plea in intervention without the

court’s approval.

           Thus, Appellees were plainly barred from filing the plea in intervention by the

text of the probate court’s order. Appellees proceeded with the intervention in spite

of these obvious facts, and then sought compensation for this clear violation of the

Receiver’s authority. Moreover, the application for fees contains absolutely no

demonstration of how this barred motion—which was rejected by both the probate

court and the Western District of Texas4—provided any benefit to the Trust.

Because there is no evidence demonstrating that this motion was either (1) within

the scope of Appellees’ authority or (2) provided any benefit to the Trust, it was an

abuse of discretion to grant Appellees $64,778.28 for its preparation and filing.



4
  In a related action attempting to remove this case to federal court, the Western District
explicitly concluded that: “The Co-receivers . . . had no justiciable interest in the action, and their
intervention was improper under Texas law.” Benson v. Benson, Doc. 25, No. 5:15-cv-202, at 9
n.3 (W.D. Tex. June 9, 2015).


1884.1/570714                                    20
II.        Nothing in the record can support the probate court’s conclusion that
           Receiver’s hourly rate is reasonable.

           There is no evidence to support the probate court’s finding that $600 per hour

is a reasonable receiver’s fee.5 Because “[t]here must be evidence to establish

reasonableness of the [receiver’s] fee,” Moyer v. Moyer, 183 S.W.3d 48, 58 (Tex.

App.—Austin 2005, no pet.), the probate court abused its discretion by failing to

require any evidence that Receiver’s fee as a receiver was reasonable.

           The only evidence presented to the probate court concerned the reasonability

of Receiver’s hourly rate for legal work. However, proof of a reasonable legal rate

is not proof of a reasonable receiver’s fee—which must be lower, as it does not

require legal skill. Because Receiver offered no evidence that $600 per hour is a

reasonable rate for a receiver, the probate court abused its discretion by awarding his

fees.

           A.    Legal fees are not evidence of receiver’s fees.

           The probate court erred by confusing a reasonable fee for legal work with the

reasonable fee for receivership work. Although a receiver may also serve as an

attorney, “[t]he receiver’s compensation as receiver and attorney must be determined

separately, for a receiver is not entitled to compensation at a legal rate for work



5
  Because Receiver’s fees were determined in a bench proceeding, “a complaint regarding the
legal or factual insufficiency of the evidence . . . may be made for the first time on appeal in the
complaining party’s brief.” Tex. R. App. P. 33.1(d).


1884.1/570714                                   21
which does not require legal skills.” Bergeron¸ 561 S.W.2d at 554 (emphasis

added); see also Hodges, 634 S.W.2d at 11 (“[T]he record should affirmatively

reflect the trial court’s determination of the capacity in which the receiver performed

services.”); Kotz v. Murariu, 04-12-00420-CV, 2013 WL 6205457, at *1-3 (Tex.

App.—San Antonio Nov. 27, 2013, no pet.) (“Bresnahan was obligated to separately

set out the value of his services as the receiver and as an attorney to the receivership

because he was not entitled to compensation at a rate for work that did not require

legal skills.”) (emphasis added).

           Because receiver’s fees must be determined separately from legal fees,

Receiver had the burden of demonstrating that $600 per hour was a reasonable fee for

a receiver under the circumstances. He did not present any evidence to meet that

burden. The only evidence supporting his rate of $600 per hour is the affidavit of

David Kinder, which relies explicitly on Receiver’s reputation as “a distinguished 50-

year lawyer.” CR 335-36. Indeed, paragraph 2 asserts that Mr. Kinder is “familiar

with the reasonable costs of necessary legal services in Bexar County, Texas”—with

no mention of his familiarity with receiver’s fees. Paragraph 4 considers the “work

performed by Mr. Hardberger” and states that “[a]ll of the following factors have been

considered in determining attorney’s fees.” CR 335 (emphasis added). The affidavit

then lists the familiar factors identified in Rule 1.04 of the Texas Disciplinary Rules of

Professional Conduct. Id. See TDRPC 1.04(b)(1)-(8).


1884.1/570714                              22
           The simple statement that “[t]hese rates and all of the rates that are shown in

the invoices are reasonable billing rates for litigation and receivership services of

this nature for attorneys in Bexar County, Texas with comparable experience,” is

insufficient to satisfy Receiver’s burden to demonstrate that $600 per hour is a

reasonable rate for receivership services. Unlike his statement regarding attorney’s

fees, the affidavit “lack[s] . . . a demonstrable and reasoned basis on which to

evaluate his opinion” that $600 per hour is a reasonable rate for receiver’s fees. See

Elizondo v. Krist, 15 S.W.3d 259, 265 (Tex. 2013).

           Moreover, both Mr. Kinder’s affidavit and Receiver’s billing records fail to

distinguish between the value and amount of legal services versus receivership

services, as required by Texas law. See, e.g., Bergeron¸ 561 S.W.2d at 554; Kotz v.

Murariu, 2013 WL 6205457, at *1-3. But more importantly, it would allow Receiver

to receive legal compensation for work that does not require legal skills. This is

precisely the result Texas courts seek to avoid by requiring that legal and receiver fees

be determined separately. Allowing a $600 per hour rate would be particularly

egregious where, as here, Receiver’s $600 per hour rate is significantly higher than the

rate charged by any of the attorneys associated with the receivership. This means that

Receiver is currently charging the Trust more for non-legal work than for legal work.

While this is undoubtedly a lucrative outcome for Receiver, it flies in the face of

Texas public policy and cannot stand under the laws governing receiverships.


1884.1/570714                                23
           Because Receiver presented no evidence that $600 is a reasonable hourly

receiver’s rate, it was an abuse of discretion to grant those fees.

           B.    Appellees’ requested fees are unreasonable.

           Nothing else in the record can support the probate court’s decision that

Appellees’ fee was appropriate. The cornerstone of determining a receiver’s fees is

the value of the services rendered. Moyer, 183 S.W.3d at 57. “The controlling

factors in ascertaining this value” are:

           (1)   the nature, extent and value of the administered estate;
           (2)   the complexity and difficulty of the work;
           (3)   the time spent;
           (4)   the knowledge, experience, labor, and skill required of, or
                 devoted by the receiver;
           (5)   the diligence and thoroughness displayed; and
           (6)   the results accomplished.
Bergeron, 561 S.W.2d at 554-55.

           The unreasonableness of Appellees’ fee is immediately evident from the fact

that they sought to charge $333,786.50 for four-and-a-half months of managing a

Trust Mr. Benson managed for free for over 30 years. However, applying the

factors outlined in Bergeron v. Sessions underscores the propriety of this conclusion.

Contrary to Appellees’ contention, the Shirley L. Benson Testamentary Trust is not

complicated. It contains six items of real property, investments in three businesses,

and three bank accounts. CR 267. That is all. Nor is the Trust difficult to


1884.1/570714                                24
administer.       Besides attending board meetings for Lone Star Bank, the Co-

Receivers’ duties consist solely of (1) collecting income from the real property—

which it would distribute to the income beneficiary, Tom Benson, if he had ever

requested a disbursement—and (2) paying taxes and insurance when due. A clear

indicator of the Trust’s simplicity is the fact that, in the five months since this

litigation began, the Co-Receivers have only requested permission to pay four bills,

none of which were recurring obligations owed by the Trust. CR 209, 215, 411,

464.

           Unlike receivers presiding over the liquidation of an estate, Appellees did not

have to oversee the sale of any assets, defend the Trust against creditors, or

undertake any of the activities that generally render their task “complex” or

“difficult.”      The truth of the matter is that the Appellees spent 685 hours

investigating a twelve asset estate and writing a 17-page report; a report that

provided no new information.

           There is no rational scenario under which Appellees’ value to the Trust can

even approach the $333,786.50 requested in their application. As discussed, much of

Appellees’ display of “diligence”—at a cost of $194,650.28—was spent on activity

outside the scope of the appointment. Indeed, $64,778.28 was spent on drafting and

filing a plea in intervention that was explicitly forbidden by the plain text of the

probate court’s order at the time it was filed. Moreover, Mr. Benson cannot conceive


1884.1/570714                                25
of any possible value provided to the Shirley L. Benson Testamentary Trust from the

10.6 hours—at a total cost of $6,360—Receiver spent airing the details of Mr.

Benson’s familial dispute to various media outlets.

III.       Appellees are not entitled to full payment until after a full accounting and
           discharge of the receivership.

           The probate court also abused its discretion by granting Appellees the full

amount of their fees. It is clearly established that “[p]rior to a final accounting and

discharge of the receiver, only a partial advance toward a final fee can properly be

made.” Bergeron, 561 S.W.2d at 553; Moyer, 183 S.W.3d at 58 (“prior to a final

accounting and discharge of the receiver, only a partial advance toward a final fee

may be made.”).6 This rule applies to both the receiver and the professionals in his

employ, such as accountants and attorneys. Bergeron, 561 S.W.2d at 553 (“executor

first argues that the trial court erred in allowing any full award of fees to the receiver

and his accountant prior to a final accounting and discharge of the receiver. We

agree.”); 1A West’s Tex. Forms, Cred. Rem. & Debt. Rights § 15:4 (4th ed.) (“It is

error for a trial court to allow a full award of fees to the receiver and his or her

accountant prior to a final accounting and discharge of the receiver. Prior to a final

6
  See also Harrington v. Schuble, 608 S.W.2d 253, 256 (Tex. Civ. App.—Houston [14th Dist.]
1980) (“The full award of receiver’s fees should not be made until there has been a final
accounting and discharge. We therefore hold that there must be a final report and an accounting
before the receiver’s fees are to be paid.”); Congleton v. Shoemaker, 09-11-00453-CV, 2012 WL
1249406, at *5 (Tex. App.—Beaumont Apr. 12, 2012, pet. denied) (“Before a final accounting
and the receiver’s discharge, ‘only a partial advance toward a final fee may be made because the
reasonableness of the fee is measured in light of the value of the receiver's work.’”).


1884.1/570714                                 26
accounting and discharge, only a partial advance toward a final fee can properly be

made.”).

           Allowing the full payment of a receiver’s fees in violation of this rule is

requires reversal. Hodges v. Peden, 634 S.W.2d 8, 10-11 (Tex. App.—Houston

[14th Dist.] 1982, no writ) (“We hold that prior to the final accounting, report and

the discharge of the receiver, only a partial advance on the final fee can properly be

made. . . . The trial court thus erred in making this award when the receivership had

not been terminated. We, therefore, reverse and remand this cause for further

proceedings in the trial court.”).       Moreover, any “partial advance should be

materially less than the value of the services rendered by the receiver prior to the

allowance.” Bergeron, 561 S.W.2d at 553 n.1.

           The probate court disregarded this basic legal principle when it granted

Appellees’ application for fees. Appellees’ application unambiguously sought full

compensation for their performance. This is amply demonstrated by Appellees’

application, which states that “[f]or the period covered by this Application, the total

fees and expenses of Co-Receiver Phil Hardberger were $76,693.06 and the total

fees and expenses of Dykema Cox Smith were $257,093.44.” CR 252. These

amounts match the total time spent on this matter, as demonstrated by the detailed

billing records attached to the application. See CR 285-87, 324, 328, 332.




1884.1/570714                               27
           The probate court’s orders granted the entire amount requested by Appellees.

CR 471. Moreover, it did so without requiring a full accounting or discharging the

receiver from his duties. To the contrary, the probate court’s order awarding the fees

conclusively establishes that the Receiver is not yet discharged: explicitly ordering

that Receiver’s appointment “shall continue until further order of this Court.” CR

472. Indeed, Receiver continues to do work.

           As such, the probate court erred when it granted Appellees’ full fees without

requiring a full accounting and discharging Receiver from his duties.




1884.1/570714                                28
                                        PRAYER

           Appellant Thomas Milton Benson, Jr. respectfully requests that this Court

reverse the probate court’s order and (1) render a judgment denying Appellees any

fees for activities charged to the Shirley L. Benson Testamentary Trust prior to

February 20, 2015, (2) render a judgment denying Appellees any fees related to the

plea in intervention, (3) render a judgment declaring Receiver’s asserted rate of

$600 per hour is unreasonable as a matter of law, vacating the award of receiver’s

fees, and remanding the Receiver’s fees to the probate court for further

proceedings on reasonability, and (4) reversing the full award of receiver’s fees

and remanding the case for further proceedings to either (a) determine appropriate

partial compensation or (b) conduct a final accounting and discharge Receiver as

temporary co-receiver of the Shirley L. Benson Testamentary Trust.




1884.1/570714                              29
                Respectfully submitted,

                BECK REDDEN LLP

                By: /s/ David J. Beck
                     David J. Beck
                     State Bar No. 00000070
                     dbeck@beckredden.com
                     Russell S. Post
                     State Bar No. 00797258
                     rpost@beckredden.com
                     Troy Ford
                     State Bar No. 24032181
                     tford@beckredden.com
                     Owen J. McGovern
                     State Bar No. 24092804
                     omcgovern@beckredden.com
                1221 McKinney, Suite 4500
                Houston, TX 77010
                (713) 951-3700
                (713) 951-3720 (Fax)

                Attorneys for Appellant,
                Thomas Milton Benson, Jr., as Trustee
                of the Shirley L. Benson Testamentary
                Trust




1884.1/570714   30
                               CERTIFICATE OF SERVICE

      I hereby certify that on November 20, 2015, a true and correct copy of the
above and foregoing Brief of Appellant was forwarded to all counsel of record by
the Electronic Filing Service Provider as follows:

               Bennett L. Stahl                           Harriet O’Neill
              CURL STAHL GEIS                   LAW OFFICE OF HARRIET O’NEILL, P.C.
       700 N. St. Mary’s St., Suite 1800           919 Congress Ave., Suite 1400
           San Antonio, TX 78205                         Austin, TX 78701
            blstahl@csg-law.com                    honeill@harrietoneilllaw.com

      Emily Harrison Liljenwall                         Douglas Alexander
SCHOENBAUM, CURPHY & SCANLAN, P.C.               ALEXANDER, DUBOSE, JEFFERSON &
      112 E. Pecan, Suite 3000                            TOWNSEND LLP
       San Antonio, TX 78205                       515 Congress Ave., Suite 2350
      eliljenwall@scs-law.com                            Austin, TX 78701
                                                     dalexander@adjtlaw.com

                          Attorneys for Appellee Renee Benson

               Ellen B. Mitchell                         Steven R. Brook
             DYKEMA COX SMITH                         Langley & Banack, Inc.
          112 E. Pecan St., Suite 1800               745 E. Mulberry, Ste. 900
            San Antonio, TX 78205                     San Antonio, TX 78212
            emitchell@dykema.com                    sbrook@langleybanack.com

            Attorneys for Co-Receiver                Attorneys for Co-Receiver
                 Phil Hardberger                         Arthur H. Bayern



                                           /s/ David J. Beck
                                           David J. Beck




1884.1/570714                              31
                           CERTIFICATE OF COMPLIANCE

      1.   This brief complies with the type-volume limitation of Tex. R. App. P.
9.4 because it contains 6,844 words, excluding the parts of the brief exempted by
Tex. R. App. P. 9.4(i)(2)(B).

      2.   This brief complies with the typeface requirements of Tex. R. App. P.
9.4(e) because it has been prepared in a proportionally spaced typeface using
Microsoft Word 2007 in 14 point Times New Roman font.

           Dated: November 20, 2015.


                                        /s/ David J. Beck
                                        David J. Beck
                                        Attorney for Appellant
                                        Thomas Milton Benson, Jr., as Trustee
                                        of the Shirley L. Benson Testamentary
                                        Trust




1884.1/570714                          32
                                      No. 04-15-00507-CV

                                 IN THE COURT OF APPEALS
                             FOR THE FOURTH DISTRICT OF TEXAS
                                      AT SAN ANTONIO

                                  THOMAS MILTON BENSON
                                     AS TRUSTEE OF THE
                          SHIRLEY L. BENSON TESTAMENTARY TRUST,
                                                                  Appellant,
                                                   v.
                         PHIL HARDBERGER AND DYKEMA COX SMITH,
                                                                  Appellees.


                        Appeal from Probate Court No. 2, Dallas County, Texas,
                                Trial Court Cause 155,572 & 155,572-A


                          APPENDIX TO BRIEF OF APPELLANT

                 Tab

                   A     Order Granting First Application for Payment of Fees of
                         Co-Receiver Phil Hardberger and Dykema Cox Smith
                         (CR 471)
                   B     Order Authorizing Payment of Appointee Fee (CR 472 –
                         73)

                   C     Second Amended Order Granting Injunction, Suspending
                         Trustee & Appointing Limited Temporary Co-Receivers
                         with Restrictions1

                   D     Letter from Judge Rickhoff to Co-Receivers dated March
                         8, 20152


1
  The copy of this order included in the record does not contain all pages of the order. Appellant
is requesting a supplemental clerk’s record containing a complete copy of this order.
2
    Appellant is requesting a supplemental clerk’s record containing this letter.


1884.1/570714
                   E     Excerpts from Application for Payment of Temporary
                         Co-Receiver’s Fees and Expenses filed by Arthur H.
                         Bayern3

                   F     Letter from Judge Rickhoff to Co-Receivers dated June
                         26, 20154




3
    Appellant is requesting a supplemental clerk’s record containing this application.
4
    Appellant is requesting a supplemental clerk’s record containing this letter.


1884.1/570714                                      34
                   TAB A
      Order Granting First Application for Payment of Fees
of Co-Receiver Phil Hardberger and Dykema Cox Smith (CR 471)
                                        Cause No. 155,572

ESTATE OF                                        §                   IN THE PROBATE COURT
                                                 §
SHIRLEY L. BENSON,                               §                                 NUMBER TWO
                                                 §
Deceased                                         §                   BEXAR COUNTY, TEXAS


                                       Cause No. 155,572-A

RENEE BENSON                                     §                   IN THE PROBATE COURT
                                                 §
v.                                               §
                                                 §                                 NUMBER TWO
THOMAS MIL TON BENSON, JR., as                   §
TRUSTEE of the SHIRLEY L.                        §
BENSON TEST AMENT ARY TRUST                      §                    BEXAR COUNTY, TEXAS


        ORDER GRANTING FIRST APPLICATION FOR PAYMENT OF FEES
        OF CO-RECEIVER PHIL HARDBERGER AND DYKEMA COX SMITH

       On this day, the Court considered the First Application for Payment of Fees of Co-

Receiver Phil Hardberger and Dykema Cox Smith. The Court finds that the Application should

be GRANTED.

       It is therefore ORDERED that Co-Receiver Phil Hardberger shall be paid $76,693.06 and

Dykema Cox Smith shall be paid $257,093.44 as compensation for their fees and expenses

incurred during the period from February 3, 2015 through June 18, 2015.             Such fees and

expenses shall be charged agains the      ds on hand of the receivership estate.

       Signed this   ~lay of                         , 2015.




                                               V02 I bOP2003·
                                              471
                 TAB B
Order Authorizing Payment of Appointee Fee (CR 472 – 73)
                                      CAUSE NO. 155,572-A
RENEE BENSON                                     §                  IN THE PROBATE COURT
                                                 §
v.                                               §                              NUMBER TWO
                                                 §
THOMAS MILTON BENSON, JR., AS                    §
TRUSTEE OF THE SHIRLEY L.                        §
BENSON TESTAMENTARY TRUST                        §                   BEXAR COUNTY, TEXAS

THE ESTATE OF                                    §                  IN THE PROBATE COURT
SHIRLEY L. BENSON, DECEASED                      §
                                                 §                              NUMBER TWO
                                                 §
CAUSE NO. 155,572                                §                   BEXAR COUNTY, TEXAS

                   ORDER AUTHORIZING PAYMENT OF APPOINTEE FEE

            ON THIS DAY, the Court considered the application of Phil Hardberger herein referred

to as "Applicant."

Applicant is an Attorney.

Judge THOMAS E. RICKHOFF appointed Applicant on February 9, 2015.

Applicant was appointed as a Co-Receiver.

Applicant's address is 112 E. Pecan, Suite 1800, San Antonio, Texas, 78205.

Applicant's Texas Bar Number is 08949000.

Applicant's Appointee Code:             ~ \ Pr

Applicant rendered services on behalf of The Testamentary Trust/Estate, who is THE

SHIRLEY L. BENSON TRUST/Estate of SHIRLEY L. BENSON, Deceased, resulting in

fees in the amount of $74, 100.00, and expenses in the amount of $2,593.06, for a total

award of $76,693.06, which the Court hereby finds is reasonable and just, and should

be paid.

            IT IS THEREFORE ORDERED, ADJUDGED, AND DECREED THAT Phil

Hardberger, as a court appointed Co-Receiver, shall be paid the total sum of



6130624.l
                                                       V02tbOP20Qq
                                                 472
 $76,693.06 to be taxed as costs in the proceeding to be paid within 14 days from the

date of this order by Receivers from funds of the Estate/Trust by Receiver.

And that further, such appointment shall continue until further order of this Court.



 Signed this    '3.   d~yofb.2015




                                              2
6130624.1
                                 V021b0P2005
                                      473
                   TAB C
Second Amended Order Granting Injunction, Suspending Trustee
& Appointing Limited Temporary Co-Receivers with Restrictions
                                      CAUSE NO. 155,572


ESTATE OF                                     §                       IN THE PROBATE COURT
                                              §
SHIRLEY L. BENSON,                            §                                    NUMBER TWO
                                              §
DECEASED                                      §                       BEXAR COUNTY, TEXAS

                                     CAUSE NO. 155,572-A

RENEE BENSON                                  §                       fN THE PROBATE COURT
                                              §
v.                                            §
                                              §                                    NUMBER TWO
THOMAS MILTON BENSON, JR., AS                 §
TRUSTEE OF THE SHIRLEY L.                      §
BENSON TESTAMENTARY TRUST                      §                       BEXAR COUNTY, TEXAS

SECOND AMENDED ORDER GRANTING INJUNCTION, SUSPENDING TRUSTEE
                             &
 APPOINTING LIMITED TEMPORARY CO-RECEIVERS WITH RESTRICTIONS

       The Court has considered the request of Renee Benson, Petitioner, for an injunction for

the suspension of the trustee and for the appointment of a temporary receiver and receivers to

serve as set out in her Original Petition for Removal of Trustee and Application for Temporary

Injunctive Relief. The court responds with a limited temporary appointment of co-receivers with

restrictions (hereinafter co-receivers) for the Shirley L. Benson Testamentary Trust (the "Trust")

and the Estate of Shirley L. Benson (the "Estate"). Such appointment is immediately necessary

for purposes of managing and conserving the Trust's and the Estate's property during litigation,

the collateral litigation in Louisiana or until the parties resolve their dispute and a family trustee

qualifies, and the need for court action no longer exists.

        The appointment of co-receivers for the Trust's and the Estate's property is warranted on

 equitable grounds and under Texas Property Code§ 114.008(a)(5) and Texas Civil Practice and

 Remedies Code § 64.00I(a). The court realizes and acknowledges that the trustee has served



                                           V02J51Pl240
competently for decades and deserves to know why the court acted. The court's reasons are found

in the addendum attached hereto.

       The powers and duties of the temporary co-receivers are set forth in this Order. To the

extent that Petitioner seeks to require the temporary co-receivers to fulfill all duties and

responsibilities that trustees owe to beneficiaries arising under statutory law, common law, or

trust instruments, including any fiduciary duties, such relief is DENIED.

        It clearly appears from the evidence that unless Respondent, THOMAS MILTON

BENSON, JR., IN HIS CAPACITY AS TRUSTEE OF THE SHIRLEY L. BENSON

TESTAMENTARY TRUST is temporarily enjoined from the acts described below, then

Respondent or persons acting in concert with Respondent will commit such acts, and Petitioner

will have no adequate remedy at law, and Petitioner will be irreparably harmed. The courts

 reasons are found in the attached addendum, which is hereby incorporated as part of this order. It

 is therefore ORDERED ADJUDGED AND DECREED that Respondent, THOMAS MILTON

 BENSON JR., IN HIS CAPACITY AS TRUSTEE OF THE SHIRLEY L. BENSON

 TESTAMENTARY TRUST and his agents servants, employees and attorneys, and all persons

 acting in concert with him or them who receive actual notice of this Order by personal service or
                                                                                    '

 otherwise, be and are hereby commanded to desist and refrain from:

         a. Removing withdrawing, transferring assigning or selling to any other person or entity

            an of the assets of the Shirley L. Benson Testamentary Trust (the "Testamentary

            Trust") or the proceeds thereof;

         b. Taking any action that causes or has the effect of causing the dissipation of assets or

             diminuition of value of the assets of the Testamentary trust, or of any remainder

             beneficiary's interest in the Testamentary Trust;




                                        VOZ\~\P\24\i
      c. Removing, transferring or withdrawing assets of the Testamentary trust from any

             bank account, whether such bank account is currently titled in the name of the

             Testamentary Trust or otherwise

      d. Removing, destroying, altering or in any way compromising books and records

             reflecting or relating to assets and liabilities of the Testamentary Trust

      e. Removing or purporting to remove Rene Benson, R. Tom Roddy, Ryan LeBlanc or

             Rita Le Blanc from any position as an officer or director of any banking institution in

             which the testamentary trust owns an interest

       f.    Refusing to respond to a reasonable request by a beneficiary of the Testamentary

             Trust for disclosure of material known to the Trustee that might affect the

             beneficiary's rights concerning the trust and

       g. Utilizing any funds or assets of the Testamentary trust to pay the Trustee's costs of

             defense in this action absent advance approval from this Court

       IT IS THEREFORE ORDERED THAT:

        1.       This Court assumes exclusive jurisdiction over all assets, monies, securities, and

property (whether real or personal, tangible or intangible) of whatever kind and character,

wherever located, which directly or indirectly belong to the Trust or the Estate in whole or in part

("Receivership Assets") and the court assumes the power to determine what assets are properly

that of the "Estate" and which are properly that of the "Trust". The Court also assumes exclusive

jurisdiction over all books, records, and other informational and electronic documents that

belong to the Trust or the Estate or relate in any way to the Receivership Assets ("Receivership

Records") and the court assumes the power to determine what documents relate to the "Estate

and which relate to the "Trust".




                                          V021~1P1242
       2.     Phil Hardberger and Arthur Bayem, residents of San Antonio, Bexar County,

Texas, and citizens and qualified voters of Texas, are hereby appointed Co-Receivers of the

Receivership Assets and Receivership Records (collectively, the "Receivership Estate"). Each

shall file a bond in the amount of $500,000.00, conditioned as provided by law and approved by

this Court. The costs of such bonds shall be paid from the Receivership Estate. However,

considering the growing volume of the collateral litigation, all significant decisions will be

presented for court approval so they will share in the court's judicial immunity. The co-receivers

are encouraged not to duplicate work in separate law firms but reach an agreement on division of

duties. This Order is further conditioned on Petitioner Renee Benson posting a bond in the

amount of$500,000.00.

        3.     On filing their bonds, together with the oath prescribed by law, the Receivers are

authorized, subject to the control of this Court, to do any and all acts necessary to the proper and

lawful conduct of the Receivership, and to immediately take and have complete and exclusive

 control, possession, and custody of the Receivership Estate and to any assets traceable to the

 Receivership Estate.

        4.     The Receivers are ordered to well and faithfully perform the duties of their office;

 to timely account for all monies, securities, and other properties which may come into their

 hands as Receivers; to be compensated for their services on an hourly-fee basis; to hire

 professionals, as the Receivers deem necessary or advisable, to provide services to the Receivers

 or the Receivership Estate; to file periodic applications for this Court to approve the payment of

 their fees and those of any professionals they may hire; and to abide by and perform all duties set

 forth in this Order and as required by law.




                                                 r           V02151P1243
       5.      As of the date of the entry of this Order, the Receivers are, subject to the control

of this Court, also specifically directed and authorized to perform the following acts and duties:

               (a)     Identify and take possession of the Receivership Estate after determining

                       the extent of co-ownership with assets held by others or other entities not

                       before the court, insure it against hazards and risks, and attend to its

                       maintenance.

               (b)     Manage and direct the business and financial affairs of the Receivership

                       Estate and any entity owned or controlled by the Receivership Estate

                       (consistent with the proportion of ownership or control held by the

                       Receivership Estate);

                (c)     With the Court's consent, retain or remove, as the Receivers deem

                        necessary or advisable, any officer, director, independent contractor,

                        employee or agent of the Receivership Estate.

                (d)     Collect, marshal, and take custody, control, and possession of all assets

                        traceable to the Receivership Estate in whole or in part, wherever situated,

                        including the income and profit therefrom and all sums of money now or

                        hereafter due or owing to the Receivership Estate.

                (e)     Collect, receive, and take possession of all goods, chattel, rights, credits,

                        monies, effects, lands, leases, books and records, work papers, records of

                        account, induding computer maintained information, contracts, financial

                        records, monies on hand in banks and other financial initiations, and other

                        papers of individuals, partnerships, or corporations whose interests are




                                                  i        V02\5\P\Z44
       now directly or indirectly held by or under the direction, possession,

       custody, or control of the Receivership Estate.

(f)    With the consent of the Court, institute such actions or proceedings to

       impose a constructive trust, determine the assets of the "Estate" or "Trust"

       and then to obtain possession of property or assets, avoid transfers or

       obligations, seek damages, and/or recover judgment with respect to any

       assets or records that are traceable to the Receivership Estate in whole or

       in part or any persons who may have caused an injury to the Receivership

       Estate.

(g)    Obtain, by presentation of this Order, documents, books, records,

       accounts, deposits, testimony, or other information within the custody or

       control of any person or entity sufficient to identify accounts, properties,

        liabilities, and causes of action of the Receivership Estate.

 (h)    Make such ordinary and necessary transfers, payments, distributions, and

        disbursements as the Receivers deem advisable or proper for the

        maintenance or preservation of the Receivership Estate.

 (i)    Perform all acts necessary to conserve, hold, manage, and preserve the

        value of the Receivership Estate, in order to prevent any irreparable loss,

        damage, and injury to the Estate.

 U)     Obtain any insurance, including but not limited to errors and omissions

        insurance, related to the performance of the Receivers' duties under this

        Order, with the costs of such insurance to be paid from the Receivership

        Estate.




                                                V02\5\P\Z45·
             (k)     Enter into such agreements in connection with the administration of the

                     Receivership Estate, including, but not limited to, the employment of such

                     managers, agents, custodians, consultants, investigators, attorneys, and

                     accountants as the Receivers judge necessary to perfonn the duties set

                     forth in this Order and to compensate them from the Receivership Estate.

                     The Receivers are specifically authorized to hire Cox Smith Matthews

                      Incorporated and Langley & Banack, Inc.

              (1)     With the Court's consent, collect and compromise demands, institute,

                      prosecute, compromise, adjust, intervene in, or become party to such

                      actions or proceedings in state or federal courts that the Receivers deem

                      necessary and advisable to preserve the value of the Receivership Estate,

                      or that the Receivers deem necessary and advisable to carry out the

                      Receivers' mandate under this Order and any subsequent order and

                      likewise to defend, compromise, or adjust or otherwise dispose of any or

                      all actions or proceedings instituted against the Receivership Estate that

                      the Receivers deem necessary and advisable to carry out the Receivers'

                      mandate under this Order and any subsequent order.

       6.      It is further ordered that the Receivers must, within 30, days of their qualification,

file in this action an inventory of all property of which the Receivers have taken possession. If

the Receivers subsequently identify or come into possession of additional property, then they

shall file a supplemental inventory as soon as practical.

       7.      The powers and duties of the temporary co-receivers are prescribed by this Order.

Their duties and obligations run to this Court. They are not appointed to serve as trustees of the




                                                 1b         iJOZ\5\PiZ4b
Trust and do not, by accepting this appointment, assume fiduciary or other duties that a trustee

would owe to beneficiaries. However, the Receivers are encouraged by the Court to be

transparent with the parties and collateral parties on all substantive anticipated actions and they

may, in the exercise of their discretion and judgment, respond to requests or other inquiries made

by the parties to this proceeding or beneficiaries of the Trust.

        8.     It is further ordered that all persons who receive notice of this Order are enjoined

from taking any actions to transfer, withdraw, conceal or encumber any property of the

Receivership Estate, and shall not take any action to interfere with the Receivers' exclusive

possession of the property of the Receivership Estate. Any such interference may be punished by

contempt.

        9.      It is further ordered that the injunction requested by Renee Benson is GRANTED

and that Thomas Milton Benson, J'r. be and is hereby suspended from serving as Trustee of the

 Trust and the Co-Receivers are appointed.

        10.     IT IS FURTHER ORDERED that the final trial on this matter is hereby set for the

 1st day of September, 2015 commencing at 9:30 a.m. in the courtroom of Probate Court No. 2,

 Bexar County, Texas.

 IT IS FURTHER ORDERED that the clerk of this Court shall forthwith, on the filing by

 Petitioner of the bond herein required and on the approval of same, according to law, issue a

 Writ of Temporary Injunction in conformity with the law and terms of this Order. it is further

 OREDERED that this temporary injunction shall not be effective unless Petitioner executes and

 files with the Court, a bond in conformity with the law, in the total amount of $500 which may

 be filed in cash, at Petitioner's option. The cash deposited in lieu of a TRO bond previously
posted by Petitioner is hereby ORDRERED released, so as to be immediately applied by the

clerk towards the Temporary lnjunction bond herein set.

       SIGNED and ENTERED on this       the~ day of March, 2015.
                                                                   ~.
                                                           _------r
                                                    ~ ,__ . ~";;;#~~




                               MAR 0 2 2015




                                                               '
                                               12         VOZ\J\r'i248
                                        Addendum to Order

PRELIMINARIES

       All preliminary matters were resolved by agreement prior to the hearing primarily
through the courts pre-hearing "Inquiry of the court" and the responses thereto by the parties.
(Appellate exhibits 1, 2 & 3) The p:uties agreed the court had jurisdiction and venue and that all
notices and services were complete and no party, attorney or the court, had a conflict. The
attorneys representing the trustee were admitted properly by Pro Hae Vice and no recusal or
continuances were requested. Counsel for the trustee objected to media recording. That request
was granted as the Texas Supreme Court rule of one by notice to the clerk was not satisfied.

        All counsel were advised o fthe court's intention to appoint receivers at the conclusion of
the hearing. That notice is required when a receiver is to be appointed over real estate. The
hearing was then continued until l\.teinday, February 9, 2015 at 4:00 p.m. which was selected for
 the convenience of the attorneys for the trustee and the court.

 ACTION AND STATEMENTS OF THE TRUSTEE ADVERSELY AFFECTING THE TRUST

         The court considered whether, within the four corners of the initial pleadings, and the
 resulting testimony, the court's ultimate decision, was compelled and no other. That is to
 temporarily suspend the trustee and temporarily appoint limited-power co-receivers. Significant
 actions by the trustee and his few ;<nown statements motivating those acts negatively impacted
 the trust and were of particular conci;::rn though all the acts of the trustee are considered.

         The statement, "is my money safe?" made to the banker led to the disconcertingly sudden
 withdrawal of the trust funds and he trustees own funds. (The Trustee appeared to express
  unnecessary fear considering the harm to the trust that was likely to result). This was 12% of the
 banks capitalization and the bank is 97% owned by the trust. The trustee himself had appointed
  all the members of the bank's lon.~-tenn executives and board. There appeared no reason why the
  funds would be safer at Frost and th•~re was no evidence that these trust funds are still at Frost
  Bank. Both sides presented evidenc<: that this action impaired the banks functions and could


                                                     1
                                                                            V02150Plb20
                     VOZ\5\P\2~q                     13
cause other depositors concern. The court was left to wonder whether this was a rational fear and
where the funds would go next.

       "Take the trust and related n:c:ords, secretly depart, and don't tell the beneficiaries where
you are." This is a paraphrase of the trustee's words as delivered by the trustee's bookkeeper.
Other than insuring that the beneficiaries could not be informed about the trust in the future,
again a sudden departure from the tfatoric trust relationship, this act had no purpose and no
positive for the trust. It breached th1! relationship of trust that existed over the life of this only
parent trustee and only child benefbary.

        "You are the only person l trust in San Antonio." The dealership General Manager
 quoted the trustee. The evidence wm; that the trustee had trusted relationships with an extensive
 array of key managers for many de;ades. Indeed long-term loyalty was a hallmark of his
 business. This statement, provided by the respondent's witness, unexplained by the trustee, along
 with the foregoing statements,    carr.~:s   a tone of sudden excessive fear. The court cannot deduce
 from the record how this feeling follows from the actions of the beneficiary but no acts of the
 daughter would seem to justify thi~. 1 ~nclusion that all long-term executive associates in San
 Antonio are disloyal or involved in. a conspiracy.

         "I want no contact with any of you ... Sincerely yours" referring specifically to the
 beneficiaries. Though drafted by a lawyer friend, only the attorney for the trustee was left to
  explain its meaning. His conclusion is an opinion and the statements of his legal team are not
  evidence. The trustee, though available, did not appear. The bookkeeper testified she saw him in
  San Antonio earlier. This no contact statement is most contrary to the evident intention of the
  settlers of the trust at the time it was established. Again, the evidence of the daughter's behavior
  that would generate this anger wa!: meager. The questions on cross-examination inferred that her
  lack of business acumen disappointed the trustee. However, the trustee is also father. He was
  known to revere family, church ar\cl friends, and particularly love his only surviving child. It
  appears extreme to disclaim all hi; parental care, a serious life-altering change at his age, when
  families celebrate parents and griBdparents. Wretched relationships cannot be good for this
  trustee who suffered the tragic early loss of two children and two wives. Without apparent cause,
   the trustee stopped the $10,000 p<1)rrnents to the beneficiary after decades. The only explanation
  offered was he determined she could not function up to his standards as a businesswoman.

                                                         2

                                                                         V021SOP1b21
                         V0 2 I 5 I P l 2 5 0 ·14
Apparently he has also fired the ben·!ficiary, her son and daughter and collapsed her business,
Renson, which administered the key 1:ar dealerships which are trust property. Ifhe was
disappointed in her business sophistic:ation and he unemployed her, it seems he would continue
payments.

HEALTH

        The trustee is 87 1/2 years old with a quadruple bypass, numerous recent hospitalizations
and surgeries, macular degeneration, a concussion and other health problems not well established
by the evidence. However, all the clirect evidence and all the witnesses agreed; there are
 substantial health issues and this tnt!itee does not seem to be improving. "He is not the same"/
 "He is the same", all lay opinions, most by witnesses lacking direct contact. There were vague
 references to an internist, Dr. Goldman and a Dr. Harris. lt would be hard to find a reported case
 with more health issues and less pr·)fessional analysis. While the court considers only the
 evidence from this case, the court is not obligated to ignore four decades of experience, largely in
 specialty courts that deal with the ,·ulnerable. Nor should the courts take nothing away from
 mandated continuing legal education which most recently featured Lady Astor Regrets and the
 Glasser case, cited in this courts "Inquiry." This court has significant experience with the
 scenario presented including thousands of open guardianships and has never established or
 rejected a permanent guardianship without the testimony of a medical doctor. Without one, the
  court finds it impossible to draw a1;1~urate conclusions about the trustee's health but the court
  need not. The trustee himself confoises that "at my age" the pressures are too much.

          This court was without the benefit of witnesses who are at arms-length with the trustee,
  like; spouse, doctor, nurse, nutritionist, surgeon, dismissed caregivers, housekeeper, cook,
  someone. The trustee appeared only briefly in the media clips. While the court always
  maintained the finding on   capacit~1   would remain in New Orleans, the forum that is proper and
  the litigant's choice, this court cannot disregard the issue of the trustee's fitness to serve.

  THE WITNESS

          It is unusual that all the w: tnesses were forthright, deliberate, professional and credible.
  More remarkable, they did not conflict on essential facts, i.e. the no contact note, movement of
  trust records and money. This is 2. tribute to the trustee's judgment of character and the settlers

                                                      3

                                                                       V02150Plb22
                       V02151Pl251 15
parenting skills. But, the remainder ·Jftheir testimony was opinion and speculation following
questions like "Why do you think tr,e trustee .... ?" "Would it surprise you that. ...?"




THE CONTENTIONS

        It appears the movant by th<: 1~vidence and pleadings alleges incapacity, undue influence
and elder abuse (isolating the trustee from his family). This court finds it unnecessary to reach
 these issues and cannot with this evidence. It is sufficient to consider only the trustee's actions
 and statements and whether they dm1aged the trust, not why he acted, perplexing as that is.

         It appears the respondent trustee's defense is that his actions do not constitute a trust
 breach. The court disagrees. The e<•Urt allowed the respondent the past three days to reverse his
 decisions, such as returning all the fonds, releasing the records and an opportunity to explain his
 statements. Now the court is forced to appoint receivers with the expertise and stature to reverse,
 where appropriate, these decisions and limit, if possible, the damage to this trust. The court
 charges the receiver with these responsibilities and urges them to surrender other law firm work
  in order to intensify the first month ·efforts. This will be expensive, but necessary. The actions of
  the trustee will likely damage the tmstee's local brand significantly over this next year if not
  reversed soon and if the major inten~ted parties are not reassured that the previous status quo
  obtain accompanied by stability and: calmness. (One executive resigned duties while on the
  stand). Time is of the essence. Ea::ly efforts will generate less ultimate costs and make for a
  shorter receivership. Receivers   ar·~   advised to get court approval for all significant decisions to
  insure their efforts are transparent. to the parties and court, so that the court's judicial immunity
  will enure to them.

          Because the trustee served decades with generosity and distinction, the court is most
  hesitant to intervene and suspend him. The court is also loath to participate in an endless, costly
   Dickensian kerfuffie and will be vigilant to extricate the receivers. However, it is obvious that
   the trustee is facing the pressures of; the overreaching expectations of sports fans, the media's
   scrutiny, an interdiction contest v.i1h the beneficiary, a potential dispute over related trusts with
   huge assets as well as a likely pre.death will contest. All litigation where the trustee and his only
  child are the principal adversaries. Even this revered trustee is mortal and no court should be

                                                        4

                                                                             ·vo2' soPlb23
complicit in allowing him more thrn he can bear if a reasonable and safe alternative is found to
..assist" him.




                                                    s
                                                                       V02150Plb2~
                    \J02\5\PiZ53                   17
                    TAB D
Letter from Judge Rickhoff to Co-Receivers dated March 8, 2015
                          BEXAR COUNTY PRO BA TE COURT# 2
                                 Tom Rickhoff, .Judge
                                      Bexar County Courthouse
                                       100 Dolorosa STE I I 7
                                   San Antonio, Texas 78205-3002
                                           210-335-2190
                                         210-335-2029 Fax


March 9, 2015

Phil Hardberger
Cox Smith Matthews Incorporated
112 E. Pecan ST. #1800
San Antonio, Texas 78205

Arthur H. Bayern
Langley & Banack, Inc.
745 E. Mulberry #900
San Antonio, Texas 78212

RE: Tom Benson (2011) vs. Tom Benson (2014)

Art and Phil,

         I've read your "plea" and conclude we should do nothing. Your actions have reduced the
litigation complexity, it is so low now, that the costs of your new efforts no longer can equal
reasonable benefits. The case has reached the dreaded Dickensian Kerfuffle door where litigation
endlessly seeks side corridors (e.g. the 1% construct you now reveal). However, there will be no
limit to the small unimportant defects. Reading exhibit 13, the Benson trust diagram, it appears,
to me, to be a Gordian knot of irrevocable trusts (LT.) that contain the great bulk of what Benson
built. It should not be your Syspusian task, to push it further to final perfection. The beneficiary
must await the trustee's action on the asset switch. That looming lawsuit is not on your sidewalk.

         What is this litigation? It is Tom Benson (2011) versus Tom Benson (2014). He is at war
with himself. No one is trying to "take' anything. He, Tom Benson (2011) already dedicated the
bulk of his wealth. Everything is in the LT. he, Tom Benson (2011), created. Now, Tom Benson
(2014) changed his mind. Who cares why. But, he cannot. Big businessmen are still just like all
of us and cannot just sign whatever they want and think if it goes south "I'll just litigate." I've
now read the LT. It does not take us lawyers to comprehend. It is a complex tax motivated LT.
that, if broken, makes the IRS ones equity partner in death. You don't need to protect it any more
than you need to keep his heirs from "attacking" him. The LT. may place the sports team's
ownership beyond a change of mind. That's why Tom Benson is not directly challenging his own
creation. How can he? Duress, undue influence, the IRS, made me do it .... Assuming the LT. is
an immovable force, it is not under attack from the beneficiaries but from ... Tom Benson (2014)
who, himself, may even be an indomitable force. Still it is an impasse. You don't need to do
anything, nothing can come from nothing, you should just wait.

       File your 30 day report without requesting expensive assessments, valuations ... Those
don't add value. Be alert for attempts to raid the Shirley Benson Trust further and stand your
ground, but otherwise do nothing. You've had the money and records returned, you've reassured
the employees they'll see next Christmas and the New Year. Mission Accomplished.

         You also don't need to litigate and stop the asset swap. It likely cannot happen. The
sports team's value is increasing too fast and is too high compared to the remaining wealth. As
you point out, you cannot take the very assets in the LT., layer over some promissory notes, and
call it an equal asset switch. The trustee doesn't need receivers to stop him. The beneficiaries sue
and you just monitor.

        If the parties wish, I'll replace receivers with an agreed trustee or ifthe Benson lawyers
will reveal what they'll do during Benson's life, about the LT., then perhaps progress. Until then,
just go dormant. Await the New Orleans' result (which may not resolve your problem) and
monitor the Tom Benson (2011) versus Tom Benson (2014) suit. I doubt they'll mediate. When
Tom Benson passes, the LT. dictates the team owners to be the beneficiaries. Until then, millions
in wasteful attorney fees can be consumed yet obtaining the same result. However, that will not
be caused by the receivers. Submit your current bill and 30 day report, then stop. Send me a copy
of your filings directly. It takes 4 days to get these documents from the probate clerk's office via
e-filing.

       Phil, I just received your trip dates. Schedule as you wish. I don't plan to set anything.

                                              Enjoy your practice,

                                              Tom Rickhoff
                                              Judge, Probate Court 2

cc: David Beck (Via E-mail: dbeck@beckredden.com)
    Troy Ford (Via E-mail: tford@beckredden.com)
    Bennett Stahl (Via E-Mail: blstahl@csg-law.com)
    Emily Harrison Liljenwall (Via E-Mail: eliljenwall@scs-law.com)
    Robert A. Rosenthal (Via E-Mail: brosenthal@rpsalaw.com)
    Phillip Wittmann (Via E-Mail: pwittmann@stonepigman.com)
              TAB E
Excerpts from Application for Payment of Temporary
          Co-Receiver’s Fees and Expenses
             filed by Arthur H. Bayern
                                                                           E-FILED
                                                                           IN MATTERS PROBATE
                                                                           Accepted: 8/31/2015 10:36:26 AM
                                                                           GERARD RICKHOFF
                                                                           CLERK PROBATE COURTS
                                      CAUSE N0.155,572                     BEXAR COUNTY, TEXAS
                                                                           BY: _ _- : : - - - - - - -
                                                                           Mar:garita Garza
ESTATE OF                                               §       IN THE PROHATE COURT
                                                        §
SHIRLEY L. BENSON,                                      §                   NUMBER TWO
                                                        §
DECEASED                                                §        BEXAR COUNTY, TEXAS

                                    CAUSE NO. 155,572-A

RENEE BENSON                                            §       IN THE PROBATE COURT
                                                        §
v.                                                      §                   NUMBER TWO
                                                        §
THOMAS MILTON BENSON, JR., AS                           §
TRUSTEE OF THE SHIRLEY L.                               §
BENSON TESTAMENT ARY TRUST                              §            BEXAR COUNTY, TEXAS

              APPLICATION FOR PAYMENT OF TEMPORARY CO-RECEIVER'S
                                FEES AND EXPENSES

        Now comes ARTHUR H. BAYERN, and files this, his Application for Payment of

Temporary Co-Receiver's Fees and Expenses, and would respectfully show the Court as follows:

        1.       ARTHUR H. BAYERN was appointed by this Court as Temporary Co-Receiver

for the Shirley L. Benson Testamentary Trust (the "Trust") and the Estate of Shirley L. Benson

(the "Estate") by Order originally dated February 9, 2015 and by subsequent amended Orders of

this Court on February 18, 2015, and March 2, 2015. The Court ordered the Co-Receivers to file

an Inventory which was duly filed in this cause on March 25, 2015.

        2.       ARTHUR H. BAYERN, as Temporary Co-Receiver, retained the services of

LANGLEY & BANACK, INC. to provide him legal services pertaining to the receivership, as

well as the accounting firm of PADGETT, STRATEMANN & CO. to provide him with

accounting services required in the receivership.

         3.       ARTHUR H. BAYERN has rendered necessary and reasonable services and

advancement of necessary expenses for administrative matters related to this Receivership and


L & B 17978/0002/L!Ol5247.DOCX/                     1



                                                                                Submitted on: 8/31/2015 9:54:43 AM
                              LANGLEY & BANACK
                                       INCORPORATED
                                     ATIORNEYS AT LAW
                                745 EAST MULBERRY, SUITE 900
                                SAN ANTONIO, TEXAS 78212-3166

                                        (210) 736-6600
                                      TAX l.D. XX-XXXXXXX




The Honorable Tom Rickhoff,                                     AUGUST 28, 2015
                                                                FILE NUMBER: 17978.0002
                                                                INVOICE NO. 231139
                                                                PAGE 3




  DATE                   DESCRIPTION                               ATTY   HOURS      AMOUNT


06/25/15   Send email to Leo Munoz, CPA, inquiring                 AHB      . 60     360.00
           about the Form 1041 for the trust/estate
           for the year 2014 ( .2); Leo responds after
           his meeting with his tax person with a list
           of the items we will need in order to file
           the return which is due on September 15,
           2015    (.2); send copy to David Kinder at
           Dykema Cox Smith so he can consult with Phil
           Hardberger on our efforts to get tax
           information (.2).

06/26/15   Receive and review the draft of a letter to             AHB     2.50    1,500.00
           the Receivers from Judge Rickhoff (.3);
           conference with Judge Rickhoff on the
           letter and the applications for fees and
           expenses (.3); exchange emails with Mark
           Barrera and David Kinder and send copy to
           Steve Brook (.3); finalize the two
           applications and place originals of
           Affidavits with each one    (.2); travel to
           the courthouse    (.3); file the two fee
           applications and get file-stamped copies
           of the first pages (.2); conference in
           chambers with Judge Rickhoff and Mark
           Barrera   (.3);   return to office (.3);
           send out file-stamped copies of the two fee
           applications to all parties in the
           receivership (.3).

06/30/15   Receive and review suggested Second                     AHB     1.10      660.00
           Motions on the possible payment to Rahbeck
           Construction and the interest payments on
           the promissory note to Benson entities in
           New Orleans (.5); conference with Steve




                                        Exhibit "A"
                              LANGLEY & BANACK
                                        INCORPORATED
                                      ATTORNEYS AT LAW
                                 745 EAST MULBERRY, SUITE 900
                                 SAN ANTONIO, TEXAS 78212-3166

                                         (210) 736·6600
                                       TAX J.D. XX-XXXXXXX




The Honorable Tom Rickhoff,                                      AUGUST 28, 2015
                                                                 FILE NUMBER: 17978.0002
                                                                 INVOICE NO. 231139
                                                                 PAGE 4




  DATE                    DESCRIPTION                               ATTY   HOURS      AMOUNT

            Brook on these items (.3); respond to
            Diane Roth at Dykema with copies to Messrs.
            Brook, Kinder, Barrera, and Hardberger
            with questions on the Second Motions and
            inquiry about tax information needed for
            the trust income tax return for the year
            2014 (.3).

07 /01/15   Receive and review message forwarded from               AHB     1. 30     780.00
            Ms. Liljenwall, one of the attorneys for
            Renee Benson, on the insurance for the
            Tahoe residence as well as the ad valorem
            taxes (.3); visit with Steve Brook about
            these and other issues in the various
            Motions that either have been filed or need
            to be filed (.3); send email to Leo Munoz,
            CPA, on Tahoe expenses (.2); receive
            response from Leo that the insurance
            premiums have been paid but that we have not
            received an invoice for the taxes (.2);
            forward the response to Steve Brook and ask
            him to respond to Ms. Liljenwall that she
            will need to file some Motions, rather than
            the receivers (.3).

07/07/15    Receive and review the Objections to                    AHB     1.70    1,020.00
            Payment of Receivers' Certain Fees and
            Expenses with exhibits filed by Mr. Beck on
            behalf of Tom Benson (.3); telephone
            conference with Judge Rickhoff (.2);
            conference with Steve Brook on the
            Objections (. 2); telephone conference with
            Liz McDevitt at Probate Court #2 on the
            Motion to Pay Accountants (.2); telephone
            conferences with David Kinder and Mark



                                          Exhibit "A"
                              LANGLEY & BANACK
                                       INCORPORATED
                                     ATTORNEYS AT LAW
                                745 EAST MULBERRY, SUITE 900
                                SAN ANTONIO, TEXAS 78212-3166

                                        (210) 736-6600
                                      TAX 1.D. XX-XXXXXXX




The Honorable Tom Rickhoff,                                     AUGUST 28, 2015
                                                                FILE NUMBER: 17978.0002
                                                                INVOICE NO. 231139
                                                                PAGE 5




  DATE                   DESCRIPTION                               ATTY   HOURS      AMOUNT

           Barrera on the Objections and the fees and
           expenses involved and the timing around the
           entry of the Order Appointing the
           Co-Receivers (. 3); review the expenses and
           fees complained of in the Motions
           requesting payment on behalf of the
           Co-Receivers and their attorneys     (.5).

07/07/15   Telephone conference with Tom Roddy,                    AHB      .50     300.00
           Chairman of the Board of the Bank (.2);
           telephone conference with Phil Hardberger
           on pending issues in the
           receivership   (.3).

07/07/15   Conference with Steve Brook on the                      AHB      .70     420.00
           telephone call from Phil Hardberger and the
           Objections to our fee applications (.3);
           send email to David Kinder about the fees
           and fee applications (.2); receive
           response from Mr. Kinder (.2).

07/08/15   Receive telephone message from Judge                    AHB     2.80   1,680.00
           Rickhoff about pending applications to pay
           bills (.2); telephone conference with
           Judge Rickhoff and Liz McDevitt, Probate
           Audi tor on pending applications, including
           bills from Padgett & Stratemann, CPAs,
           Rahbeck Construction     (Tahoe residence),
           Phil Hardberger, Dykema Cox Smith, Arthur
           Bayern, Langley & Banack, and interest
           payments to Benson Football LLC and
           discussed where we go from here and the need
           to inform all counsel when the bills are
           paid    (1.0); review files for the various
           applications and send email to Leo Munoz,




                                         Exhibit "A"
                    TAB F
Letter from Judge Rickhoff to Co-Receivers dated June 26, 2015
                          BEXAR COUNTY PROBATE COURT# 2
                                 Tom Rickhoff, Judge
                                     Bexar County Courthouse
                                       100 Dolorosa STE 117
                                   San Antonio, Texas 78205-3002
                                           210-335-2190
                                         210-335-2029 Fax



June 26, 2015

Phil Hardberger
Cox Smith Matthews Incorporated
112 E. Pecan St. # 1800
San Antonio, Texas 78205

At1hur H. Bayem
Langley & Banack, Inc.
745 E. Mulberry #900
San Antonio, Texas 78212

RE: 155572 Estate of Shirley L. Benson, Deceased

Dear Art and Phil and litigants,

       Bills arrived today. They serve as a reminder that the receivership must end in favor of a
more pe1manent solution.
       My sole duty is to ensure the Shirley Benson Trust is properly administered. However, it
is unlikely any substitute trustee under my direction will actually run the bank or a dealership;
they will only serve to maintain the status quo in a subdued way while ensuring access to the
accountant's work.
        Apart from the overt actions which generated the receiver' s appointment, two of Tom
Benson's recent statements which I paraphrase below, require that this jurisdiction continue.
These statements are:


1. the directions to the legal team, to do whatever it takes to force the chosen change and


2. the statement of intent not to work with the family, i. e. the beneficiaries.
Faced with these statements, this court cannot fashion a reasonable resolution. If this dynamic is
not changed, then after the appeal, I'll be forced to relieve the receivers and appoint an interim
trustee either agreeable to all or just to me and await a jury finding. At this time, suspending this
litigation should be in everyone's interest. It is most certainly my desire. It is discomforting for
all, to be associated with endless litigation and family disassociation in the years that should be
more restful and rewarding for Tom Benson.
        After a review with the court auditor today, I am authorizing payment of the debts in 10
days. If any patty wishes to contest, they may request a formal hearing or merely a telephonic
status conference. The parties may wish to discuss the resolutions I suggested in my June 9, 2015
note.


                                       Sincerely,




cc: David Beck (Via E-mail: dbeck@beckredden.com)
    Troy Ford (Via E-mail: tford@beckredden.com)
    Bennett Stahl (Via E-Mail: blstahl@csg-law.com)
    Emily Harrison Liljenwall (Via E-Mail: eliljenwall@scs-law.com)
    Robert A. Rosenthal (Via E-Mail: brosenthal@rpsalaw.com)
    Phillip Wittmann (Via E-Mail: pwittmann@stonepigman.com)
