Texas Fiduciary Litigator

Texas Fiduciary Litigator

The Intersection of Texas Courts and the Fiduciary field

Webinar – Recent Developments In Trustees’ Use Of Exculpatory, Release, and Disclaimer-Of-Reliance Clauses In Texas (June 13 at 10 am CST)

Posted in Items of Interest, Knowledge Library
Webinar - June 13

Webinar – June 13

Join us for a complimentary webinar covering a trustee’s ability to enforce beneficial trust and contract clauses that alter its duties and liabilities, including exculpatory, release, and disclaimer-of-reliance clauses. This presentation will also cover suggested tips for drafting these types of clauses.

Date: Tuesday, June 13, 2017
Time: 10:00 – 10:30 a.m. Central Time
Cost: Complimentary
Speaker: David F. Johnson

Continuing Education Credit Information:
This course has been approved for MCLE credit by the State Bar of Texas Committee on MCLE in the amount of 0.5 credit hours

Who should attend:
In-house counsel and other litigation contacts, trust officers, risk management contacts, and wealth advisors at banks and financial institutions



Court Held That Submission Of Jury Question On Fiduciary Duty Was Harmless Due To Duplication Of Damages

Posted in Cases Decided, Texas Court of Appeals

In Hughes v. Hughes, a husband and wife sued each other for various claims, including breach of fiduciary duty. No. 13-15-00496-CV, 2017 Tex. App. LEXIS 3489 (Tex. App.—Corpus Christi April 20, 2017, no pet. history). In the charge conference, the wife objected to the question as having an improper definition of fiduciary duty and objected to the following question as not identifying the specific transactions in question. Id. at *28. The definition used by the trial court tracked the exact language of pattern jury charge, entitled “Question and Instruction-Breach of Fiduciary Duty with Burden on Fiduciary.” The court of appeals noted that the commentary for this particular question and instruction advises to submit this question “whether the duty is based on a formal or an informal relationship, when the fiduciary bears the burden of proof.” The court of appeals held that a fiduciary duty exists between spouses. The court then concluded that any error was harmless:

Assuming without deciding that submitting question eight to the jury was error, we nevertheless could not conclude that such charge was reasonably calculated to or probably caused the rendition of an improper judgment because the amount of damages awarded to Dan under the breach of fiduciary duty claim is the same compensation as the amount of damages awarded in the actual fraud claim. Furthermore, Dan recovered this amount only once rather than twice in the judgment.

Id. at *29.

Court Held That Settlor Had Standing To Assert Extra-Contractual Misrepresentation Claims Regarding Insurance Policies He Previously Transferred To An Irrevocable Insurance Trust

Posted in Cases Decided, Texas Court of Appeals

In Lee v. Rogers Agency, Lee purchased three whole-life insurance policies in the 1980s where each had a face value of $1,000,000. No. 06-15-00037, 2017 Tex. App. LEXIS 1069 (Tex. App.—Texarkana February 8, 2017, pet. filed). It was represented to Lee that the policies provided that Lee could shorten the premium payment period by tendering payment in full. Lee paid $238,188.15, which he understood would extinguish his obligation to pay premiums on the policies. In 1991, Lee transferred ownership of the policies an irrevocable insurance trust for tax planning purposes, and the owner became the trustee of the trust.

Later, a class action lawsuit was filed against the insurance company based on allegations that misrepresentations were made about whether a single prepayment would be sufficient to carry the cost of the policies for the life of the insured. This suit was settled with the insurer paying $2 billion to the class plaintiffs. Allegedly, notice of this class action and settlement was sent to the trustee of Lee’s trust, but the trustee did not request to be excluded from the class.

Later, Lee’s policies lapsed for non-payment of premiums, and he filed suit against the insurance company, an insurance agency, and the agent for declaratory relief and damages for claims for negligence, DTPA, insurance code, and breach of contract. The insurance company filed a motion for summary judgment and argued that Lee had no standing to litigate his claims or, in the alternative, that his claims were barred by res judicata because they had been fully litigated in the class action. The trial court granted the motion for summary judgment, and Lee appealed.

The court of appeals first addressed whether Lee had standing. In other words, the court determined whether Lee retained the right to assert extra-contractual claims based on the policies or whether those rights were transferred to the trust. The court set forth the following standards for trust construction:

The meaning of a trust instrument is a question of law when there is no ambiguity as to its terms. If the court is capable of giving a definite legal meaning or interpretation to an instrument’s words, it is unambiguous, and the court may construe the instrument as a matter of law. Only when the trust instrument’s language is uncertain or reasonably susceptible to more than one meaning will it be considered ambiguous so that its interpretation presents a fact issue precluding summary judgment. The overriding principle to be observed in construing a trust instrument is to ascertain the settlor’s intent with the view of effectuating it. “[I]t is the intention of the settlor at the time of the creation of the trust that is determinative.” We interpret trust instruments the same way as we interpret wills, contracts, and other legal documents. Thus, when interpreting a trust, a court must “(1) [c]onstrue the agreement as a whole; (2) give each word and phrase its plain, grammatical meaning unless it definitely [*9]  appears that such meaning would defeat the parties’ intent; (3) construe the agreement, if possible, so as to give each provision meaning and purpose so that no provision is rendered meaningless or moot; (4) express terms are favored over implied terms or subsequent conduct; and (5) surrounding circumstances may be considered—not to determine a party’s subjective intent—but to determine the appropriate meaning to ascribe to the language chosen by the parties.”

Moreover, when determining the parties’ intent, the court must be particularly wary of isolating individual words, phrases, or clauses and reading them out of the context of the document as a whole. For this reason, “we ‘examine and consider the entire writing in an effort to harmonize and give effect to all the provisions of the contract so that none will be rendered meaningless. No single provision taken alone will be given controlling effect; rather, all the provisions must be considered with reference to the whole instrument.’”

Id. at * 8-9 (internal citations omitted).

Among other provisions, the trust agreement stated:

The Trustee is hereby vested with all right, title, and interest in and to such policies of insurance, and the Trustee is authorized and empowered to exercise and enjoy, for the purposes of the Trust herein created… The Settlor hereby relinquishes all rights and powers in such policies of insurance which are not assignable, and will, at the request of the Trustee, execute all other instruments reasonably required to effectuate this relinquishment.

Id. at *10-12. The court surmised that: “[T]he first question before us is whether Lee’s causes of action in this case are among those ‘rights and powers in such policies’ that Lee assigned or relinquished when the policies were transferred to the Trust.” Id. The court held that the trust’s provisions must be read in conjunction with the purposes of the trust. “[T]he Trust’s purpose was to shield the Policies from estate taxes at Lee’s death, and to do that, Lee had to divest himself of all ‘incidents of ownership’ in the Policies.” Id. The court held that whether Lee assigned or relinquished the extra-contractual causes of action at issue turned on whether those causes of action were “incidents of ownership” as defined by federal case law under Section 2042 of the federal income tax code. The court concluded:

When interpreting the terms of the Trust Agreement in this case, we must keep in mind that Lee’s assignment and relinquishment of the Policies was intended to be only as broad as was necessary to divest himself of any “incidents of ownership.” There is no indication from the Trust language that he intended to convey anything else. If his extra-contractual claims are “incidents of ownership” in the Policies, then they were assigned or relinquished, but if they are not “incidents of ownership,” then Lee retained those claims and has standing to assert them against the Appellees.

Id. at *19.

Federal law held that the phrase “incidents of ownership” was defined as “the economic benefits of owning an insurance policy,” including “the power to change the beneficiary, to surrender or cancel the policy, to assign the policy or revoke an assignment, to pledge the policy for a loan, or to obtain a loan from the insurer for the surrender of the value of the policy.” Id. at 19-22. The court also noted that under federal law, when deciding whether a decedent has retained any “incidents of ownership” of life insurance for purposes of Section 2042, “the key question is what power did decedent possess during his lifetime to control the disposition of the policy or the proceeds?” Id. The court concluded that the extra-contractual causes of action raised by Lee were not “incidents of ownership” in the policies. Retaining those claims did not allow Lee to change the disposition of the policy proceeds in a manner contrary to the trust’s terms, either by redirecting those proceeds to himself or to some person other than the named beneficiaries. Therefore, the court held that Lee had standing to assert those claims in the litigation.

The court next addressed whether the class-action settlement barred Lee’s claim due to res judicata. One issue was whether Lee was in privity with the trust and trustee such that a judgment that barred suit by the trust also barred suit by the settlor, Lee. After analyzing res judicata precedent, the court concluded that “in order to determine whether Lee’s claims are barred by res judicata, we must decide whether Lee had a ‘substantive legal relationship’ with the Trustee …, such that he was actually represented by the Trustee in the [class action] litigation.” Id. at * 32.

The court looked at the relationship between a settlor, the trust, and the trustee:

To begin with, a settlor who “[u]nder the terms of the . . . Trust . . . do[es] not manage any of the aspects of the . . . Trust and do[es] not stand to inherit any of the trust assets” is not an “interested person” who has standing to bring an action against a trustee or to bring other proceedings related to a trust under the Texas Property Code. Likewise, a trustee does not have standing to sue a settlor for breach of fiduciary duty.

Absent some assignment of duty to the settlor in the trust instrument, a trustee has no cause of action to sue the settlor of a trust for a breach of fiduciary duty to the trust beneficiaries. A trust settlor has no fiduciary obligation to a trust beneficiary once that trust is created, and control of the trust assets is vested with the trustee. Accordingly, the few Texas cases addressing the legal relationship between a settlor and a trustee have concluded that neither has standing to sue the other, at least where “[u]nder the terms of the . . . Trust . . . the Settlor do[es] not manage any of the aspects of the . . . Trust and do[es] not stand to inherit any of the trust assets.”

This precedent is consistent with Section 200 of the Second Restatement of Trusts, which states, “No one except a beneficiary or one suing on his behalf can maintain a suit against the trustee to enforce the trust or to enjoin or obtain redress for a breach of trust.” Comment b to that section goes on to state: “Settlor and his successors in interest. Neither the settlor nor his heirs or personal representatives, as such, can maintain a suit against the trustee to enforce a trust or to enjoin or obtain redress for a breach of trust. Where, however, the settlor retains an interest in the trust property,[] he can of course maintain a suit against the trustee to protect that interest. Thus, if the settlor is also a beneficiary of the trust, or if he has an interest by way of resulting trust, or if he has reserved power to revoke the trust, he can maintain a suit against the trustee to protect his interest. So also, if the settlor makes a contract with the trustee, he can maintain an action on the contract with the trustee. The trustee, however, merely by accepting the trust and agreeing to perform his duties as trustee does not make a contract with the settlor to perform the trust which the settlor could enforce.

Id. at *34-37. The court then concluded:

Consequently, because (1) Lee, as settlor, is not an “interested person” as defined by the Property Code; (2) Lee neither owed a duty to the Trust nor was owed any duties by the trust; and (3) as Settlor of a “private irrevocable trust . . . , [he lost] the possibility of modification or input on the Trust once the Trust [was] created[,]” … then Lee and the trustee do not have a “substantial legal relationship” with each other sufficient to create privity for purposes of res judicata. Although there may be an “incidental legal relationship” between them in the sense that Lee created the Trust and the Trustee subsequently managed it, there is not the “substantive legal relationship” necessary to satisfy due process for purposes of binding Lee by the Willson judgment.

Id. at *36-37. The court held that Lee did not have standing to raise negligence and breach-of-contract claims, but did have standing to assert the DTPA and insurance code claims against the insurance company. The court reversed and remanded the summary judgment to the trial court for further proceedings.

The insurance company has since filed a petition for review in this case to the Texas Supreme Court. On April 28, 2017, the Supreme Court requested that Lee file a response to the petition, and the response is currently due on May 30, 2017.

Court Holds That Shareholders In Closely Held Business Do Not Owe Each Other Fiduciary Duties

Posted in Items of Interest

In In re Fritz, a bankruptcy court determined whether an exception to dischargeability was present. No. 15-347950BJH, 2017 Bankr. LEXIS 930 (N.D. Tex. Bankr. April 3, 2017). Although the state court judgment jointly awarded the plaintiffs $100,000 in damages and post-judgment interest, it did not specify which of the claims pled in the underlying state court petition supported the award or otherwise allocated the damages between the plaintiffs. This failure to allocate damages among the pled claims was significant because some of the claims pled in the state court petition could have given rise to a nondischargeable judgment under § 523 of the Bankruptcy Code, while others did not.

Regarding the breach of fiduciary duty exception to dischargeability, the court noted that “A discharge under section 727 … does not discharge an individual debtor from any debt … for fraud or defalcation while acting in a fiduciary capacity, embezzlement, or larceny.” Id. (citing 11 U.S.C. § 523(a)(4)). The court stated: “This subsection is intended to address situations where ‘debts are incurred through abuses of fiduciary positions and through active misconduct whereby a debtor has deprived others of their property by criminal acts.’” The court held that:

[O]nce the Plaintiffs establish a breach of fiduciary duty under Texas law, they still have the burden of proof to “demonstrate the existence of the requisite elements of 11 U.S.C. § 523(a)(4),” such as the existence of the fiduciary duty prior to Fritz’s breaches. Thus, to establish their claim under § 523(a)(4), the Plaintiffs must prove Fritz “engaged in fraud or defalcation while acting in a fiduciary capacity.” “Defalcation is the neglect of a fiduciary duty.”

Turning first to the existence of a fiduciary duty, the Complaint summarily states that “Fritz remained an owner, officer, and director of [the Company], and therefore owed fiduciary duties to both the [C]ompany and to Hill.” As discussed above, the Court has deemed the factual allegations in the Plaintiffs’ Complaint as true. However, the Plaintiffs’ statement that Fritz owes a fiduciary duty to the Company and Hill is a conclusion of law, not a factual allegation. Conclusions of law are the purview of the Court and, as such, the Court does not accept this legal conclusion as true. Accordingly, the Court must independently determine whether Fritz owed a fiduciary duty to Hill and/or the Company.

Taking these in order, for Hill to succeed on his § 523(a)(4) claim, he must first prove that Fritz owed him a fiduciary duty. Although the Complaint generally alleges that Fritz owed a fiduciary duty to Hill, it does not explain the basis for such a duty. Based upon the record before it, the Court can only infer that the alleged fiduciary duty is based upon Hill’s and Fritz’s positions as co-shareholders of the Company. Under Texas law, however, “a co-shareholder in a closely held corporation does not as a matter of law owe a fiduciary duty to his co-shareholder.” Because Hill has failed to prove that Fritz owed him a fiduciary duty, Hill’s § 523(a)(4) claim for fraud or defalcation while acting in a fiduciary capacity fails.

Id. (Hoggett v. Brown, 971 S.W.2d 472, 488 (Tex. App.—Houston [14th Dist.] 1997, no pet.) (no fiduciary duties between shareholders)).

The court then reviewed the dischargeability of the company’s judgment, and held that the debtor did owe fiduciary duties to the company as an officer and director. However, the court was not able to allow a discharge because the underlying judgment was not specific enough to show that the trial court awarded the judgment based on a breach of fiduciary duty claim (as opposed to a breach of contract claim).

Interesting Note: This case raises a reoccurring issue in bankruptcy discharge cases arising from fiduciary cases: specificity of a state court judgment. A plaintiff should be very careful to obtain the necessary findings to support the exception to bankruptcy discharge and also obtain a judgment that makes the required findings and specifically grants damages based on a breach of fiduciary duty claim (potentially in addition to other claims). The author refers the reader to his earlier blog post on bankruptcy and dischargeability issues arising from breach of fiduciary duty claims.

Trustees’ Use Of LLCs and Other Entity Forms To Hold Assets And Mitigate Risk (Texas Bankers Association)

Posted in Items of Interest, Knowledge Library

PresentationDavid F. Johnson, lead writer for the Texas Fiduciary Litigator blog, and Winstead Shareholder Justin Hoover presented “Trustees’ Use Of LLCs and Other Entity Forms To Hold Assets And Mitigate Risk” to the Texas Bankers Association 2017 Intermediate Trust and Estate Administration Seminar in Las Colinas, Texas. The presentation is attached below.

If you are interested in joining our next complimentary webinar or seminar, please send your request to dfjohnson@winstead.com.

CLICK HERE FOR PRESENTATION SLIDES: Trustees’ Use of LLCs and Other Entity Forms to Hold Asses and Mitigate Risk

Court Holds That Family Member Did Not Owe Fiduciary Duties To Other Family Member

Posted in Cases Decided, Texas Court of Appeals

In Walker v. Walker, a son sued his father and brother regarding the ownership of a beach house. No. 14-16-00357-CV, 2017 Tex. App. LEXIS 2742 (Tex. App.—Houston [14th Dist.] March 30, 2017, no pet. history). The son alleged that the father made an oral gift of the property to the son. The son alleged that the father wrongfully deeded the same property to the brother at a later date. The son and his wife brought suit to quiet title based on a claim of oral parol gift of realty and also asserted claims for damages based on promissory estoppel, unjust enrichment, and breach of fiduciary duty. The trial court granted summary judgment for the defendants, and the plaintiff appealed.

Regarding the breach of fiduciary duty claim, the court of appeals discussed whether the brother owed the son a fiduciary duty:

[The] law also recognizes that certain relationships may give rise to an informal fiduciary duty based on “a moral, social, domestic or purely personal relationship of confidence and trust.” Informal fiduciary duties will not be created lightly. Some relationships involving trust and confidence simply do not rise to the stature of a fiduciary relationship. Subjective trust of one person in another is also not sufficient to create a duty. “[A] confidential relationship is a two-way street: ‘one party must not only trust the other, but the relationship must be mutual and understood by both parties.’” Family relationships may give rise to an informal fiduciary duty between family members where there is sufficient evidence of a relationship of trust and confidence. A mere family relationship, however, by itself is generally not sufficient. We will examine the actualities of the relationship between the parties in determining the existence of a confidential fiduciary relationship. Where there is no evidence to establish the relationship or the facts are undisputed, a court may determine the question as a matter of law.

Id. at * 30-31. The court reviewed the evidence and determined that it did not support any fiduciary duties. There was no evidence that the wife and brother-in-law had any relationship of trust and confidence: “There is no evidence showing that she sought Layne’s advice or guidance on any matter, nor evidence of any other circumstances suggesting a relationship of trust and confidence between them.” Id. The court also held that there was no evidence showing that the son was often guided by the judgment or advice of the brother, or that the son put any particular trust and confidence in the brother with regard to the son’s financial decisions. Nor was there any evidence indicating that the brother recognized that the son was relying on him to the extent that a fiduciary duty arose. Although the son argued generally that there was a history of the brother handling “family transactions,” he did not point to any evidence establishing that he relied upon or put his confidence in the brother with regard to any specific “family transactions.”

The court also held that even though the son and brother inherited real property and owned it as cotenants, that cotenants in real property do not ordinarily owe fiduciary duties to each other. Id. (citing Scott v. Scruggs, 836 S.W.2d 278, 282 (Tex. App.—Texarkana 1992, writ denied) (“Absent a special relationship there is no fiduciary obligation owed by one cotenant to the others.”)). Therefore, the court affirmed the summary judgment dismissing the breach of fiduciary duty claim.

Recorded Webinar – A Trustee’s Use Of LLCs and Other Entity Forms To Hold Assets And Mitigate Risk

Posted in Items of Interest, Knowledge Library, Webinars
Recorded Webinar

Recorded Webinar

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, discusses a trustee’s decision to use entities to hold trust assets to mitigate risk.  David covers benefits and other considerations that a trustee should contemplate before creating such an entity and transferring assets into it. The presentation also highlights the different types of entities that can be used to hold trust assets.

If you are interested in joining our next complimentary webinar or seminar, please send your request to dfjohnson@winstead.com.

Target Audience: In-house counsel and other litigation contacts, trust officers, risk management contacts, and wealth advisors at banks and financial institutions

Contractual Clauses That Impact Disputes – 6th Annual Financial Services Seminar

Posted in Items of Interest, Knowledge Library

Duty to Diversify, Texas Bankers AssociationDavid F. Johnson, lead writer for the Texas Fiduciary Litigator blog, presented Contractual Clauses That Impact Disputes at the 6th Annual Financial Services Seminar hosted by Winstead PC and the Tarrant County Bankers Association.   David’s paper and presentation are attached below.

If you are interested in joining the next complimentary webinar or event, please contact David at dfjohnson@winstead.com

Presentation – 2017 Financial Services Seminar_D.Johnson

Paper – TBA Contractual Clauses Paper

Court Affirms Sanctions Order Against Fiduciary Due To Discovery Abuses

Posted in Cases Decided, Texas Court of Appeals

In Eng v. Kolbe, a mother sued her daughter for abusing a power of attorney document. No. 03-15-00409-CV, 2017 Tex. App. LEXIS 2680 (Tex. App.—Austin March 30, 2017). The daughter was assisting her aging parents with their finances as her father suffered from dementia and her mother suffered from macular degeneration. Later the mother revoked the power of attorney, appointed her other daughter in that role, and then sued the defendant for breach of fiduciary duty, fraud, conversion, and conspiracy to commit fraud. The petition alleged:

Moon alleged in her petition that during the time England managed her finances, England  withdrew funds from Moon’s accounts, sold stocks and other investments, retained proceeds for her own use, and transferred additional funds of Moon’s to her own bank accounts, all without permission. Moon also asserted that England engaged in real estate transactions with Moon’s funds. Some of those transactions alleged England used Moon’s funds to purchase properties titled in England’s name alone and transferred Moon’s interests in other properties to England via gift deeds.

The defendant did not turn over relevant documents and records and failed to honestly answer questions in her deposition regarding all of her various conduct and transactions. The trial court entered a sanctions order regarding some of this conduct, compelling her to respond to discovery, produce documents, and pay sanctions in the amount of $15,000 and attorney’s fees of $3,000.

The defendant still did not comply with her discovery obligations. Her conduct was finally discovered, and the plaintiff filed a second motion for sanctions. After a hearing, the trial court granted the motion for sanctions, struck all of the defendant’s pleadings, granted plaintiff a default judgment on all issues of liability, and denied the defendant’s request for a jury trial on damages. The trial court then held a damages trial in which it awarded plaintiff actual damages in the amount of $1,458,251; awarded punitive damages in the amount of $1,000,000; set aside and declared void the gift deeds for properties; and imposed a constructive trust on certain assets of the defendant, including her homestead, automobile, and bank accounts. The defendant appealed.

The court of appeals affirmed the sanctions order:

[T]he evidence shows that a direct relationship exists between the trial court’s striking England’s pleadings and England’s offensive conduct. The information about accounts and transactions withheld by England throughout the discovery period was the principal evidence that Moon needed to succeed in most of her claims against England because the existence of these banking and investment accounts went to the heart of the issues in the case. Further, the district court made a finding that it was England who had committed these bad acts and was the responsible party for the misrepresentations and withholding of evidence. Therefore, the punishment was properly directed at the perpetrator of the offensive conduct.

The trial court’s sanction of striking England’s pleadings and entering a default judgment on liability was also not excessive. The trial court made findings that England’s misconduct throughout the litigation had been egregious and that she repeatedly lied and changed her version of the events to suit her needs at the time. Specifically, England changed her testimony about her role in Moon’s finances from providing her limited assistance in bill paying to forming a “secret partnership” for the purchase of significant real-property assets. The district court had previously tested lesser sanctions against England after she had concealed bank accounts from Moon during discovery, but those sanctions did not stop England’s continued misconduct.

The court of appeals then determined that the trial court erred in denying the defendant a jury trial on the damages issue, reversed that aspect of the judgment, and remanded for a new trial.

Court Holds That Members of LLC May Owe Each Other Fiduciary Duties

Posted in Items of Interest

In B Choice v. Epicentre Development Associates, the federal district court affirmed a magistrate’s recommendations concerning whether members of an LLC owe fiduciary duties to each other in Texas. No. H-14-2096, 2017 U.S. Dist. LEXIS 46284 (S. D. Tex. March 29, 2017). The court held that whether the members owed each other fiduciary duties was a fact question:

With regard to the breach of fiduciary duty issue, the EpiCentre Defendants challenge the citation of Allen v. Devon Energy Holdings, LLC, 367 S.W.3d 355 (Tex. App-Houston [1st Dist] 2012, pet. granted, judgm’t vacated, w.r.m.). However, the court finds that the part of the case that is cited was not overruled, is still good law, and supports the Magistrate Judge’s decision that there is a genuine issue of material fact for the jury to decide whether some of the EpiCentre Defendants owed a fiduciary duty to plaintiff. To be clear, the court is aware that, in dicta, another court stated that as of April 2010, no Texas court had found that fiduciary duties existed between members of a limited liability company as a matter of law. See Entertainment Merchandising Technology, LLC v. Houchin, 720 F. Supp.2d 792, 797 (N.D. Tex. 2010). However, that court acknowledged in the next sentence that whether such fiduciary duty existed was typically a question of fact. Therefore, the court agrees with the Magistrate Judge that whether the EpiCentre Defendants owed a fiduciary duty to plaintiff is an issue of fact for the jury.

The court then denied the defendant’s motion for summary judgment on that ground.