Texas Fiduciary Litigator

Texas Fiduciary Litigator

The Intersection of Texas Courts and the Fiduciary field

David Fowler Johnson

Subscribe to all posts by David Fowler Johnson

Court Reverses Jury Verdict And Holds That Trustor Could Not Revoke Trust

In Coyle v. Jones, two sisters fought over the whether $197,000 belonged to their mother’s estate or to a trust. No. 05-16-00876-CV, 2017 Tex. App. LEXIS 11173 (Tex. App.—Dallas November 30, 2017, no pet. history). A trustor and her husband formed a revocable trust that stated: “At any time during the joint lives of the… Continue Reading

Court Held That Power-Of-Attorney Holder Was Not Authorized To Name Himself As A Beneficiary Of The Principal’s Insurance Policy, But Could Name His Sister

In Transamerica Life Ins. Co. v. Quarm, Thomas Quarm obtained a life insurance policy and designated his mother as his beneficiary and his brother, Nicholas, as the alternate beneficiary. No. EP-16-CV-295-KC, 2017 U.S. Dist. LEXIS 192192 (W.D. Tex. November 13, 2017). Quarm later purchased an annuity product with the same beneficiaries. When the mother died,… Continue Reading

Court Denied Preliminary Injunction To Breach-Of-Fiduciary-Duty Plaintiff Due To Delay In Seeking Relief

In Embarcadero Techs., Inc. v. Redgate Software, Inc., a former employer sued four former employees and their new employer for a number of claims, including breach of fiduciary duty and aiding and abetting breach of fiduciary duty arising out of alleged inappropriate competition and the use of trade secrets. No. 1:17-cv-444-RP, 2017 U.S. Dist. LEXIS… Continue Reading

Court Held That Retirement Benefits Belonged To The Worker’s Sister, Who Was Designated Beneficiary, And Not The Wife

In Estate of Gibson, a man named his sister as the beneficiary of his retirement plan in 1989. No. 06-17-00059-CV, 2017 Tex. App. LEXIS 9963 (Tex. App.—Texarkana October 13, 2017, no pet.). The man married in 2003, but failed to change the beneficiary designation. When he died in 2011, his wife, who was his executor,… Continue Reading

Federal Court Dismisses Breach of Fiduciary Duty Claim Because It Was Preempted By The Texas Uniform Trade Secret Act

In Embarcadero Techs., Inc. v. Redgate Software, Inc., four employees left their employer and began working at a new company. No. 1:17-cv-444-RP, 2018 U.S. Dist. LEXIS 1902 (W.D. Tex. January 5, 2018). The plaintiffs sued the four former employees for breach of fiduciary duty and sued their new employer for aiding and abetting breach of… Continue Reading

Court Held That A Testator Was Partially Intestate And Did Not Leave His Real Property To His Niece Under His Will

In In re Estate of Neal, Larry Ronald Neal executed a will in which he bequeathed his personal property to his niece, Valorie Jean White, and omitted a devise to his daughter. No. 02-16-00381-CV, 2017 Tex. App. LEXIS 10541 (Tex. App.—Fort Worth November 9, 2017, no pet. history). The will stated: “I do give and… Continue Reading

Court Held That Will Contestant Expressly Waived Right To Appeal From Bench Trial

In Estate of Crawford, after the first day of a will contest, the parties’ attorneys announced on the record that they agreed that neither party would assert a claim for attorney’s fees via a good-faith finding and that they would not appeal the trial court’s judgment. No. 14-17-00703-CV, 2017 Tex. App. LEXIS 10554 (Tex. App.—Houston… Continue Reading

Court Holds That Lender Did Not Have Standing To Sue An Estate For A Deficiency After Electing That Its Claim Is A Preferred Debt And Lien

In In re Estate of Chapman, Peoples Bank (the Bank) conducted a non-judicial foreclosure sale of secured real estate owned by an estate and then sued the administrator of the estate in district court due to a deficiency remaining on the note after the foreclosure sale. No. 06-17-00051-CV, 2017 Tex. App. LEXIS 10478 (Tex. App.—Texarkana… Continue Reading

Court Holds That Contractual Relationship Does Not Create Fiduciary Duties

In Na Ins. Servs. Holding Corp. v. Hilb Group of Ind., a federal magistrate recommended that the district court grant a defendant’s motion to dismiss a breach of fiduciary duty claim. No. 4:17CV600-ALM-KPJ, 2017 U.S. Dist. LEXIS 186544 (E.D. Tex. October 23, 2017). The plaintiff alleged that it entered into a contract whereby it would… Continue Reading

Court Denies Request For Mandamus Relief Regarding Court Order Requiring Spouse of Deceased Trustee To Prepare An Accounting

In In re Ng, after a jury found that a deceased trustee did not breach fiduciary duties, a trial court nonetheless ordered the deceased trustee’s spouse to prepare an accounting of the trust. No. 09-17-00386-CV, 2017 Tex. App. LEXIS 10129 (Tex. App.—Beaumont October 27, 2017, original proceeding). The spouse filed a notice of appeal and… Continue Reading

Magistrate Recommends Refusing A Request For A Preliminary Injunction Based On A Breach Of Fiduciary Duty Claim Arising From An LLC’s Former Member Competing For Opportunities

In BCOWW Holdings, LLC v. Collins, plaintiffs sued a former member and his new company asserting breach of fiduciary duty and numerous other claims based in part on the defendants allegedly usurping a corporate opportunity. No. SA-17-CA-00379-FB, 2017 U.S. Dist. LEXIS 142618 (W.D. Tex. September 5, 2017). The plaintiff sought a preliminary injunction, and the… Continue Reading

Court Held That Statutory Probate Court Had Subject Matter Jurisdiction Over Trust Dispute

In Barcroft v. Walton, a statutory probate court entered sanctions, struck a defendant’s pleadings, and entered a default judgment against a defendant in a trust case. No. 02-16-00110-CV, 2017 Tex. App. LEXIS 8541 (Tex. App.—Fort Worth September 7, 2017, no pet. history). The defendant appealed on multiple grounds, and the court of appeals first addressed… Continue Reading

Court Refuses To Enforce Arbitration Clause By Financial Advisor

In Steer Wealth Mgmt., LLC v. Denson, Denson, in her individual capacity and as executor of her husband’s estate, sued Steer Wealth Management, LLC, for causes of action including breach of fiduciary duty, breach of contract and fraud arising out of the alleged improper transfer of assets from several of the Densons’ brokerage accounts. No.… Continue Reading

Federal Courts Hold That Lenders Do Not Generally Owe Fiduciary Duties To Borrowers

In Hagood v. Countrywide Home Loans, Inc., a borrower sued a lender for several claims, including breach of fiduciary duties. No. A-17-CA-00784-SS, 2017 U.S. Dist. LEXIS 165943 (W. D. Tex. October 6, 2017). The defendant filed a motion to dismiss for failure to state a claim, and the district court granted same: Without providing details,… Continue Reading

Court Addresses Breach Of Fiduciary Duty and Partition Issues In Trust Dispute

In Koda v. Rossi, a mother created a trust that provided that her son was to serve as trustee and that she, he, and a daughter were the beneficiaries. No. 11-15-0150-CV, 2017 Tex. App. LEXIS 8194 (Tex. App.—Eastland August 26, 2017, no pet. history). Upon the mother’s death, the trust was to terminate and the… Continue Reading

Texas Supreme Court Will Hear Oral Argument On Whether Texas Recognizes A Claim For Tortious Interference With Inheritance Rights

On October 11, 2017, the Texas Supreme Court will hear oral arguments in Anderson v. Archer, No. 03-13-00790-CV, 2016 Tex. App. LEXIS 2165 (Tex. App.—Austin March 2, 2016, pet. filed). In Anderson, the trial court’s judgment awarded the plaintiffs $2.5 million in damages based on a tortious interference with inheritance claim. Id. The defendants appealed and argued that… Continue Reading

Court Holds That Attorneys Acted As An Escrow Agent And Could Be Sued For Breach Of Fiduciary Duty By A Non-Client

In Alexander O&G, LLC v. Nomad Land & Energy Res., LLC, Nomad entered into a Purchase and Sale Agreement (“PSA”) with Alexander O&G, LLC (“AOG”) for the sale of oil and gas interests. No. H-16-2065, 2017 U.S. Dist. LEXIS 130415 (S.D. Tex. August 16, 2017). The PSA provided that AOG would deposit earnest money into… Continue Reading

Court Affirms Judgment For Estate Representative Due To A Statute-Of-Limitations Tolling Statute

In Kaptchinskie v. Estate of Kirchner, the purchasers of property sued an estate to establish that the estate’s claim under a note was extinguished by the statute of limitations. No. 14-15-01080-CV, 2017 Tex. App. LEXIS 7012 (Tex. App.—Houston [14th Dist.] July 27, 2017, no pet. history). The independent administratrix of the estate filed a counterclaim… Continue Reading

Texas Supreme Court Enforces Forum-Selection Clause In Breach Of Fiduciary Duty Case Arising From A Shareholder Agreement

In Pinto Tech. Ventures, L.P. v. Sheldon, the Texas Supreme Court held that business tort claims, including breach of fiduciary duty, were subject to a forum-selection clause in a shareholders agreement. No. 16-0007, 2017 WL 2200357, at *9 (Tex. May 19, 2017). The plaintiffs, two shareholders, asserted business tort claims related to the alleged dilution… Continue Reading

Texas Adopts New Legislation Protecting Vulnerable Persons From Financial Exploitation And Places New Burdens On Financial Institutions, Securities Dealers, and Financial Advisers

I.     Introduction The Texas Legislature passed, and the Governor has signed, a new act that creates new protections for vulnerable individuals. HB 3921 creates a new chapter 280 of the Texas Finance Code and a new Article 581, Section 45, of the Texas Securities Act in the Texas Civil Statutes. The Texas Legislature now requires… Continue Reading

Court Affirms Summary Judgment In Will Contest Where There Was No Evidence Of Undue Influence

In Estate of Frye, parties filed an application to set aside an order probating a will due to an allegation of undue influence. No. 07-16-00398-CV, 2017 Tex. App. LEXIS 6992 (Tex. App.—Amarillo July 26, 2017, no pet. history). The decedent left bequests to her daughters, Judy and Patsy, in her will, but left nothing to… Continue Reading

New Texas Statutes That Impact Fiduciaries Become Effective Today (9/1/2017)

The Texas Legislature passed, and the Governor has signed, a new act that creates new protections for vulnerable individuals. This impacts financial institutions, broker/dealers, and investment advisors. The Texas Legislature now requires employees to report suspected incidences of financial exploitation of vulnerable persons (those over 65 or those with disabilities) to their employers, and for… Continue Reading

Court Affirms Arbitration Decision Arising From Trust Dispute

In Saks v. Rogers, a beneficiary of a trust challenged a trial court’s enforcement of an arbitration decision. No. 04-16-00286-CV, 2017 Tex. App. LEXIS 6923 (Tex. App.—San Antonio July 26, 2017, no pet. history). The parties entered into a mediated settlement agreement (MSA) that included an arbitration agreement for “disputes aris[ing] with regard to the… Continue Reading

Court Held That Estate Representative Was Entitled To Discover Documents To Establish A Claim

In In re Cokinos, Boisien & Young, a representative of an estate of a deceased attorney sought documents from a law firm related to an alleged agreement to share fees. No. 05-16-01331-CV, 2017 Tex. App. LEXIS 6911 (Tex. App.—Dallas July 25, 2017, original proceeding). The trial court ordered that the estate representative have access to… Continue Reading
.