David F. Johnson recently published a new law review article: “Tricks, Traps, and Snares in Appealing a Summary Judgment in Texas, 72 BAYLOR L. REV. 564 (Fall 2020).” David originally published this article in 1998 with Chief Justice William J. Cornelius of the Sixth Court of Appeals of Texas. David’s original article has been cited by the Texas Supreme Court and the Texas Courts of Appeals located in Dallas, Houston, Waco, and Texarkana. This new version is substantially more detailed and reflects the current law on various issues that a party faces when appealing or defending against an appeal of a summary judgment order. Among other things, the article discusses the standards and scopes of review for traditional and no-evidence motions for summary judgment; pleading requirements; drafting considerations for a motion, response, and reply; appealing interlocutory orders; mandamus review of denials of summary judgment motions; timing and evidence issues; motions for continuance; appellate record issues; briefing issues; and the waiver of appellate rights.

Read the Article

In Belliveau v. Barco, Inc., a licensor of intellectual property sued the owner of the licensee for breach of fiduciary duty related to the sublicensing to a third party. No. 19-50717, 2021 U.S. App. LEXIS 2489 (5th Cir. January 28, 2021). The district court dismissed the claim, and the plaintiff appealed. The court of appeals affirmed, holding that the defendant did not owe a fiduciary duty to the plaintiff. Continue Reading Court Holds That A Defendant Did Not Owe A Fiduciary Duty To An Affiliate’s Licensee Because Its In-House Attorneys Did Not Have An Attorney/Client Relationship To The Plaintiff And There Was No Informal Confidential Relationship

In this webinar, David F. Johnson will discuss the different types of exculpatory clauses in trust documents, why they exist, the historical treatment of exculpatory clauses in Texas, Texas’s current statutory provisions that impact their enforcement, and current precedent impacting the enforcement of such clauses.

Continuing Education Credit Information:
This course has been approved for 1 MCLE credit hour by the State Bar of Texas Committee on MCLE.
This course has also been approved for 1.25 CTFA Credit, attendees are able to self-report.

Please contact rbond@winstead.com if you need assistance with receiving your credit.

CLICK HERE FOR WEBINAR.

 

In Maxey v. Maxey, in a dispute that arose from the probate of an estate, two sisters mediated and reached a settlement agreement concerning the division of certain real property. No. 01-19-00078-CV, 2020 Tex. App. LEXIS 10281 (Tex. App.—Houston [1st Dist.] December 29, 2020, no pet. history). The two sisters disagreed on how they would divide property among certain trusts, and they sued one another. After mediation, they entered into a settlement agreement that purported to divide the real property. Then the parties disagreed on what the settlement agreement meant, and once again sued each other regarding breach of the agreement. The trial court found the settlement agreement was ambiguous and submitted the meaning of the agreement to a jury. After the jury trial, the court entered judgment on the verdict, and the losing sister appealed. Continue Reading Court Reversed Jury Trial And Determined That Settlement Agreement Dividing Real Property Owned By Trusts Was Not Ambiguous

In In the Estate of Maberry, the alleged common-law wife of an intestate decedent did not have standing to seek to remove the decedent’s daughter as independent administrator because she was not an “interested person” following her voluntary release of all her rights in the estate in a settlement agreement. No. 11-18-00349-CV, 2020 Tex. App. LEXIS 10447 (Tex. App.—Eastland December 31, 2020, no pet. history). In the agreement, the alleged heir agreed to accept $2,000 “as consideration for compromise, settlement and release of all claim of [Harper] to any part of the Estate.” The heir then contended that she did not release her right to receive an inheritance from the estate, she only released “claims” against the estate, and her right to receive an inheritance from the estate was not a claim against the estate. Continue Reading Court Held That An Heir Of An Estate Who Released All Claims Against The Estate Via A Settlement Agreement No Longer Had Standing To Bring Suit

In Ackers v. Comerica Bank & Trust, N.A., an income beneficiary sued a trustee for a declaration regarding the construction of a testamentary trust. No. 11-18-00352-CV, 2020 Tex. App. LEXIS 10442 (Tex. App.—Eastland December 31, 2020, no pet. history). The will provided that the income beneficiary was to receive the income from the corpus of the trust during his lifetime, and upon his death, the trust would terminate and the corpus of the trust would pass to the “then-living descendants” of the income beneficiary. The income beneficiary brought a declaratory judgment action seeking a determination that some of his descendants should be excluded at his death, and the trial court entered summary judgment that the relief sought was not ripe for consideration. Continue Reading Court Held That The Issue Of Who Was Included In The Class Of Descendants Was Not Ripe Until The Current Beneficiary Dies

David F. Johnson recently published his article “Fiduciary Compensation and Forfeiture in Texas” in the Texas Tech Estate Planning and Community Property Law Journal. This article addresses many of the interesting issues that arise in trustee compensation disputes. The article addresses a trustee’s authority to compensation under the trust document, statutes, and common law, and the factors involved in determining reasonable compensation. It also addresses issues such as co-trustee compensation, the propriety of other benefits to a trustee, principal and income issues, and the use of attorney’s fees theories. The article also addresses the compensation of estate representatives, guardians, agents, and power of attorney agents. Finally, the article addresses the authority in Texas for fiduciaries forfeiting their compensation due to breaches of duty.

Read the Article

In Marshall v. Marshall, a son, who was a trust beneficiary, sued his mother and brother alleging breaches of fiduciary duty and sought a declaratory judgment that they violated an in terrorem clause of the will. No. 14-18-00094-CV, No. 14-18-00095-CV, 2021 Tex. App. LEXIS 423 (Tex. App.—Houston [14th Dist.] January 21, 2021, no pet. history). The mother had created a similar Wyoming trust and then merged the original Texas trust into the Wyoming trust. The beneficiaries were essentially the same, but there were administrative differences, including who the trustees and successor trustees were and the wording of the in terrorem clauses. The mother also had a lawsuit filed in Wyoming to approve all of these changes, but did not serve the plaintiff. The defendants filed motions to dismiss under the Texas Citizens Participation Act (“TCPA”), the trial court denied them, and they appealed. Continue Reading Court Holds That Allegations Related To A Trustee’s Filing Of Suit Did Fall Under The Protection Of The Texas Citizens Participation Act, That A Trustee’s Actions To Modify Administrative Terms Did Not Trigger An In Terrorem Clause, But That Other Actions Unrelated To Suit Filings Were Not Protected From The Act

In In re Silver State Holdings, in a bankruptcy proceeding a trustee of a limited liability company sued its former manager for breach of fiduciary duty and another entity for conspiracy to breach fiduciary duty arising out of a sale of property owned by the company. No. 19-41579-MXM 26 LLC, ADVERSARY NO. 19-4043-MXM 7901, 2020 Bankr. LEXIS 3531 (N.D. Tex. Bankr. December 17, 2020). Continue Reading Bankruptcy Court Discussed The Fiduciary Duties Owed To A Limited Liability Company And Its Creditors By Its Manager

Upcoming Webinar

Join us for a complimentary webinar that will discuss the different types of exculpatory clauses in trust documents, why they exist, the historical treatment of exculpatory clauses in Texas, Texas’s current statutory provisions that impact their enforcement, and current precedent impacting the enforcement of such clauses.

Date: Tuesday, February 23, 2021
Time: 10:00 – 11:00 a.m. Central Time
Cost: Complimentary
Speaker: David F. Johnson

Continuing Education Credit Information:
This course is pending approval for MCLE and CTFA credit by the State Bar of Texas Committee on MCLE in the amount of 1 credit hour

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

CLICK HERE TO REGISTER