                                                                                                    ACCEPTED
                                                                                                04-14-00751-CV
                                                                                    FOURTH COURT OF APPEALS
                                                                                         SAN ANTONIO, TEXAS
                                                                                            7/1/2015 2:41:33 PM
                                                                                                 KEITH HOTTLE
                                                                                                         CLERK
                                           NO. 04–14–00751–CV

                                        IN THE COURT OF APPEALS
                                                                         FILED IN
                                   FOR THE FOURTH DISTRICT OF TEXAS4th COURT OF APPEALS
                                           SAN ANTONIO, TEXAS       SAN ANTONIO, TEXAS
                                                                       07/1/2015 2:41:33 PM
                                                                         KEITH E. HOTTLE
                                                                               Clerk
                             JOSEFINA ALEXANDER GONZALEZ, ET AL,

                                                                   Appellants,

                                                    v.

                                     RAYMOND S. DE LEON II, ET AL,

                                                Appellees.
 __________________________________________________________________

                   APPELLEE RAYMOND S. DE LEON’S RESPONSE TO
                       APPELLANTS’ POST–SUBMISSION BRIEF

                                                 JUDITH R. BLAKEWAY
                                                 State Bar No. 02434400
                                                 Judith.Blakeway@strasburger.com
                                                 JAMES MAVERICK MCNEEL
                                                 State Bar No. 24035491
                                                 James.McNeel@strasburger.com
                                                 LAURA C. MASON
                                                 State Bar No. 24028227
                                                 Laura.Mason@strasburger.com
                                                 2301 Broadway
                                                 San Antonio, Texas 78215
                                                 Telephone: (210) 250-6000
                                                 Facsimile: (210) 250-6100

                                                 ATTORNEYS FOR APPELLEE
                                                 RAYMOND S. DE LEON II, TRUSTEE




1887483.1/SPSA/26517/0102/070115
                                        Argument

          There are two independent reasons supporting the trial court's dismissal of

Appellants’ trust administration claims. First, Appellants have no standing to assert

trust administration claims because they are not “affected by the administration” of

the Family Trust. Second, the trial court correctly dismissed the trust administration

claims because Webb County Court at Law No. 2 had acquired dominant

jurisdiction. Appellants never address the second basis. Thus, even if they had

standing to bring trust administration claims––which is not conceded––the trial

court correctly dismissed those claims because of the prior pending action in County

Court at Law No. 2. Because either reason is a sufficient basis to affirm the trial

court’s dismissal of the trust administration claims, it is not necessary for this Court

to reach the issue of standing.

          If the Court nevertheless decides to address the trust administration standing

issue, Appellants had no standing to assert trust administration claims. Appellants

were not affected by De Leon’s status as a limited partner in limited partnerships

which they control by virtue of their control over the limited liability company that

is the general partner of the partnerships. And they had no standing under the

statute attached to their post submission brief, Texas Property Code Section

112.054. Under Section 112.054, standing is limited to a trustee or beneficiary (“on

the petition of a trustee or beneficiary a court may order that the trustee be changed,



1887483.1/SPSA/26517/0102/070115            2
that the terms of the trust be modified. . . .”) TEX. PROP. CODE §112.054(a). So the

trial court correctly ruled that Appellants lacked standing.

          Management v. appointment. Appellants disclaim any intent to control the

successor trustee, but they want to control who can become their partner because

they want to maintain control of the partnerships. They want to assure that whoever

is appointed will not interfere with their management of the partnerships.

          Voting interest. Appellants claim that they are affected by the trustee’s

appointment because the trust has enough votes to prevent the other partners from

amending or terminating the partnership agreements. This is a spurious argument.

Because they are in control, they have no desire to amend or terminate the

partnerships. This is like saying, “the rich as well as the poor have the right to sleep

under bridges.” True, but why would they want to?

          Moreover, that the trust has a vote as a limited partner is insufficient to confer

standing on other partners to challenge appointment of the trustee. Appellants have

an interest in the partnership; they have no interest––pecuniary or otherwise––in the

trust. Their purported interest in the trust is even more attenuated than the interests

found insufficient in the cases cited at Appellee’s Brief pp. 13–14. If those parties

do not have standing to sue, then neither do Appellants.

          Standing v. merits. It is ironic that Appellants base their claim to standing on

their duty to see that the trust’s intent and partnership purposes are fulfilled. The

very reason that Appellees sued is because Rocio Guerra and her children, the only

1887483.1/SPSA/26517/0102/070115              3
descendants of settlors Delfina and Josefina, and the intended beneficiaries of their

bounty, have not received pro rata distributions from partnerships, of which they

own 90 percent.

          It is also ironic that Appellants now make a distinction between standing and

merits, when their whole argument is premised on the assumption that De Leon’s

appointment was void, which addresses the merits, which the trial court never

reached because it found Appellants did not have standing.

          Appellants also claim that they had standing because they were ordered to

produce books and records, which their partner indisputedly had a right to examine.

If their theory of standing were correct, any entity subpoenaed to produce records

pertaining to a trust––for example, financial institutions or accounting firms––would

have standing to challenge a trustee’s appointment. Standing is not that broad.

          Effect of appointment. Finally, Appellants claim that they have standing

because of the relief sought in the trustee’s derivative action. It is apparent that

Appellants’ real interest is not only in controlling the process by which the trustee is

selected, but also controlling the trustee himself, so that they can continue to use the

partnerships for their own benefit, depriving the intended beneficiaries of their

inheritance.

          None of this is to say that Appellants are without recourse. But their recourse

is not to challenge the process by which the trustee was appointed but to bring their

trust administration claims in Webb County Court at Law No. 2, where the district

1887483.1/SPSA/26517/0102/070115             4
court properly ordered that these claims be pursued. Allowing Appellants to bypass

that court would circumvent the rulings of the county court, interfering with the

jurisdiction of the court having dominant jurisdiction.

                                        Conclusion

          The trial court correctly sustained the plea to the jurisdiction that Appellants

lacked standing, ordered that trust administration claims must be brought in the

pending actions in Webb County Court No. 2 and dismissed the remaining claims.

Those orders should be affirmed.




1887483.1/SPSA/26517/0102/070115             5
                                             Respectfully submitted,

                                             STRASBURGER & PRICE, LLP

                                             By: /s/ Judith R. Blakeway
                                               JUDITH R. BLAKEWAY
                                               State Bar No. 12434400
                                               JAMES MAVERICK MCNEEL
                                               State Bar No. 24035491
                                               LAURA C. MASON
                                               State Bar No. 24028227
                                               2301 Broadway
                                               San Antonio, Texas 78215
                                               Telephone: (210) 250-6000
                                               Facsimile: (210) 250-6100

                                                ATTORNEYS FOR APPELLEE
                                                RAYMOND S. DE LEON, II,
                                                TRUSTEE OF THE DELFINA &
                                                JOSEFINA ALEXANDER FAMILY
                                                TRUST




                                   CERTIFICATE OF COMPLIANCE

          In accordance with Tex. R. App. P. 9.4(i)(1), I hereby certify that this

Response to Appellants’ Post–Submission Brief contains no more than 827 words.


                                                     /s/ Judith R. Blakeway
                                                   Judith R. Blakeway




1887483.1/SPSA/26517/0102/070115               6
                                   CERTIFICATE OF SERVICE

        Pursuant to E-Filing Standing Order, I certify that on July 1, 2015, I
electronically filed the foregoing with the Clerk of Court using the
EFile.TXCourts.gov electronic filing system which will send notification of such
filing to the following:

Robinson C. Ramsey                               Jeffrey T. Knebel
State Bar No. 16523700                           State Bar No. 11589000
rramsey@langleybanack.com                        Osborne, Helman, Knebel & Scott, LLP
Joyce W. Moore                                   301 Congress Ave., Suite 1910
State Bar No. 14357400                           Austin, TX 78701
jwmoore@langleybanack.com                        Telephone: (512) 542–2015
Paula C. Boston                                  Facsimile: (512) 541–2011
State Bar No. 24089661                           jtknebel@ohkslaw.com
pboston@langleybanack.com
Langley & Banack, Inc.                           Tom Bassler
745 E. Mulberry, Ste. 900                        State Bar No. 01894300
San Antonio, Texas 78212–3166                    Thomas G. Bassler, P.C.
Telephone: (210) 736–6600                        306 W. Sunset, Suite 119
Facsimile: (210) 735–6889                        San Antonio, Texas 78209
      Attorneys for Appellants                   Telephone: (210) 836–8885
                                                 Facsimile: (210) 826–2236
                                                 thomas@basslerlaw.com

                                                 Jesus “Jesse” Guillen
                                                 State Bar No. 24011090
                                                 1308 San Augustin
                                                 Laredo, TX 78040
                                                 Telephone: (956) 725–5899
                                                 Facsimile: (877) 874–6560
                                                 jguillen@guillenlawoffice.com
                                                        Attorneys for Appellee
                                                        Rocio Guerra


                                                     /s/ Judith R. Blakeway
                                                   Judith R. Blakeway




1887483.1/SPSA/26517/0102/070115             7
