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 Held That Real Estate Broker Did Not Owe Fiduciary Duties To Other Parties In A Transaction

In Van Duren v. Chife, the buyers of a home sued the sellers as well as the sellers’ real estate broker and his company regarding water penetration that damaged the home. No. 01-17-00607-CV, 2018 Tex. App. LEXIS 3494 (Tex. App.—Houston [1st Dist.] May 17, 2018, no pet. history). The trial court dismissed the buyers’ breach… Continue Reading

Court Rejects Claim That Ex-Spouses Owed Each Other Fiduciary Duties

In Robins v. Robins, an ex-wife sued her ex-husband for breaching fiduciary duties regarding the sale of their former marital residence. No. 02-16-00285-CV, 2018 Tex. App. LEXIS 3534 (Tex. App.—Fort Worth May 17, 2018). The trial court entered a judgment finding that the ex-husband breached a fiduciary duty to his former wife and awarded her… Continue Reading

The Texas Supreme Court Holds That Incorporating The AAA Rules Does Not Delegate Arbitrability Issues To The Arbitrator For Nonsignatories

Background: Arbitration Clauses May Apply To Trust Disputes The Texas Supreme Court held that arbitration clauses in trust documents may be enforced regarding claims by beneficiaries against trustees. In Rachal v. Reitz, a beneficiary sued a trustee for failing to provide an accounting and otherwise breaching fiduciary duties. 403 S.W.3d 840 (Tex. 2013). The trustee… Continue Reading

Court Holds That Drafts Of Trust Documents Are Discoverable And Discusses The Attorney-Client Privilege

In In re Rittenmeyer, the mother of the decedent was the executor of his estate. No. 05-17-01378-CV2018 Tex. App. LEXIS 2812 (Tex. App.—Dallas April 19, 2018, original proceeding). Among other claims, the decedent’s wife alleged that there was a new will that superseded the will (“2011 Will”) admitted to probate. The wife sought discovery of… Continue Reading

Court Discusses The Texas Rules For Superseding Declaratory Relief In A Trust Dispute

In In the Interest of K.K.W., a father and mother, who were settlors, filed competing claims regarding the interpretation of a trust for their son. No. 05-16-00795-CV, 2018 Tex. App. LEXIS 2174 (Tex. App.—Dallas March 27, 2018, no pet. history). The trial court found for the father, granted him declaratory relief regarding the interpretation of… Continue Reading

Bankruptcy Court In Texas Held That Client Did Not Adequately Plead An Aiding and Abetting Breach of Fiduciary Duty Claim Against Former Attorneys

In In re Westech Capital Corp., a bankruptcy trustee sued a company’s former attorneys for breaching fiduciary duties and also for aiding and abetting the breach of fiduciary duty. No. 16-10300-TMD, 2018 Bankr. LEXIS 969 (W.D. Tex. Bankr. March 29, 2018). The attorneys filed a motion to dismiss. The court first determined that, under Delaware… Continue Reading

Court Holds That There Is A Fact Issue By Former Employer Against Employee For Breach Of Fiduciary Duty In Self-Dealing Transactions

In Roberts v. Overby-Seawell Co., an employee sued his former employer for the failure to pay commissions. No. 3:15-CV-1217-L, 2018 U.S. Dist. LEXIS 47821 (N.D. Tex. March 23, 2018). The former employer filed a counterclaim for breach of fiduciary duty arising out of the employee’s failure to disclose that he had an interest in other… Continue Reading

Texas Supreme Court Compels Arbitration For Lender And Disagrees With Fifth Circuit

In Henry v. Cash Biz, LP, a borrower sued a lender for the lender reporting the borrower’s bad checks to the district attorney’s office. No. 16-0854, 2018 Tex. LEXIS 164 (Tex. February 23, 2018). The borrower left checks as security for the loans. When the borrower defaulted, the lender attempted to cash the checks, and… Continue Reading

Magistrate Recommends Denying A Motion To Dismiss Against A Bank For Aiding and Abetting Breach Of Fiduciary Duty

In Schmidt v. JP Morgan Chase Bank, N.A., the plaintiff’s employee opened credit cards in the employer’s name, used those credit cards for the employee’s own personal use, and paid those credit card bills with funds from the employer’s operating account and/or through advances from the employer’s line of credit. No. H-17-0532, 2018 U.S. Dist.… Continue Reading

Court Affirmed Summary Judgment For A Trustee Due To An Exculpatory Clause

In Kohlhausen v. Baxendale, the court affirmed a summary judgment for a trustee on the basis of an exculpatory clause in a trust document. No. 01-15-00901-CV, 2018 Tex. App. LEXIS 1828 (Tex. App.—Houston [1st Dist.] March 13, 2018, no pet. history). A mother created a testamentary trust for the benefit of her son Kelley William… Continue Reading

Court Enforced Forum-Selection Clause In Trust Document

In In re JP Morgan Chase Bank, N.A., trust beneficiaries sued the trustee for alleged breaches of fiduciary duty in Dallas, Texas. No. 05-17-01174-CV, 2018 Tex. App. LEXIS 1883 (Tex. App.—Dallas March 14, 2018, original proceeding). The settlor executed the trust agreement in New York, and it included the following forum-selection clause: “The validity and… Continue Reading

Court Reversed Order Removing Trustee Where Trustee Did Not Receive Notice Of The Hearing

In In re Estate of Moore, the court of appeals addressed the proper procedure for removing an acting trustee and appointing a successor trustee. No. 08-14-00298-CV, 2018 Tex. App. LEXIS 1950 (Tex. App.—El Paso March 15, 2018, no pet. history). A beneficiary filed a motion to remove a trustee, but did not serve notice of… Continue Reading

Texas Supreme Court Rules That Trustee Is Not Liable For Fraud In Leasing Minerals Due To “Red Flags” And Express Contradictory Language That Negated Justifiable Reliance

In JPMorgan Chase Bank, N.A. v. Orca Assets G.P., a trustee leased minerals to a leasee. No. 15-0712, 2018 Tex. LEXIS 250 (Tex. March 23, 2018). That leasee did not immediately record the lease. The trustee’s agent then signed a letter of intent to lease tracts from the same area. When the new lease signed… Continue Reading

Texas Supreme Court Holds That Testator Devised Property As A Life Estate

In Knopf v. Gray, the will disposed of the testator’s entire estate, specifically including a tract of land. No. 17-0262, 2018 Tex. LEXIS 249 (Tex. March 23, 2018). The provision through which the testator devised the land stated: “NOW BOBBY I leave the rest to you, everything, certificates of deposit, land, cattle and machinery, Understand… Continue Reading

Court Affirmed Judgment Against Trust Settlor Who Raised Fraud And Other Related Claims Against An Insurance Agent

In Jessen v. Duvall, an investor who established trusts to purchase life insurance policies sued an insurance agent for tort claims, including fraud, conspiracy, and aiding and abetting breach of fiduciary duty based on the insurance policies not being good investments and the investor losing more than $3.2 million dollars. No. 14-16-00869-CV, 2018 Tex. App.… Continue Reading

Court Affirms Punitive Damages In A Breach-Of-Fiduciary-Duty/Partnership Dispute

In Home Comfortable Supplies, Inc. v. Cooper, the defendant induced others to start a new limited partnership with his corporation. No. 14-16-00906-CV, 2018 Tex. App. LEXIS 1381 (Tex. App.—Houston [14th Dist.] February 22, 2018, no pet. history). Among other things, he then seized the new business’s tangible assets and gave the use of the assets… Continue Reading

Court Held That Estate Beneficiary Did Not Have Standing To Assert Forfeiture Or Breach Claim Against Executrix’s Attorneys, That An Executrix Had No Authority To Pay Her Attorney’s Fees From The Estate In The Interim In Defending A Removal Action, And That The Trial Court Erred In Refusing A Motion To Compel Distribution Of The Estate

In re Nunu, an estate beneficiary sued the executrix to have her removed due to alleged breaches of fiduciary duty and also sought to have the court refuse to pay her attorneys in representing her in a removal action and/or sought to have those fees forfeited. No. 14-16-00394-CV, 2017 Tex. App. LEXIS 10306 (Tex. App.—Houston… Continue Reading

Court Holds That A Wife Devised Her Property In Fee Simple Determinable To Her Husband With An Executory Interest To Her Son; So, After The Husband Died, If He Still Owned The Property, It Went To The Son

In In re Estate of Hernandez, the issue in the case was whether clauses in a will conveyed a life estate to the decedent’s husband. No. 05-16-01350-CV, 2018 Tex. App. LEXIS 755 (Tex. App.—Dallas January 24, 2018, no pet. history). The will stated: The rest and residue of my estate, both real, personal and mixed… Continue Reading

Court Interpreted the Phrase “In Equal Shares Per Stirpes” in a Trust Document

In Archer v. Moody, the litigants in the declaratory judgment action were remainder beneficiaries of a trust created in 1934 and owned a 15,000-acre ranch near Junction, Texas. No. 14-15-00945-CV, 2017 Tex. App. LEXIS 11642 (Tex. App.—Houston [14th Dist.] December 14, 2018, no pet. history). The legal dispute focused on how to calculate the fractional… Continue Reading

Court Holds That Plaintiff Did Not Establish Continuing Tort Theory To Defeat A Statute Of Limitations Defense To A Breach Of Fiduciary Duty Claim

In Vaschenko v. Novosoft, Inc., a partner from an alleged oral partnership sued his partner for breach of fiduciary duty. No. 03-16-00022-CV, 2018 Tex. App. LEXIS 771 (Tex. App.—Austin January 26, 2018, no pet. history). The trial court granted the defendant’s motion for summary judgment based on limitations, and the plaintiff appealed. The court of… Continue Reading

Court Rejects Claim That Mortgage Lender Owed Fiduciary Duties To Borrower And Addressed The Discovery Rule For The Statute of Limitations

In Wakefield v. Bank of Am., N.A., a borrower stopped paying on her mortgage because she felt she was assisting in a fraud. No. 14-16-00580-CV, 2018 Tex. App. LEXIS 545 (Tex. App.—Houston [14th Dist.] January 18, 2018, no pet. history). She later sued the lender for breach of fiduciary duty, and the lender filed a… Continue Reading

Fiduciary Litigation Practice Tip: Streamlining Discovery To Threshold Legal Issues

Litigation can unfortunately be a costly endeavor. This is as true with fiduciary litigation as with any other type of litigation. The parties have to exchange documents, take depositions, retain experts, conduct legal research on many issues, prepare dispositive motions and respond to same, prepare for trial, prepare lengthy jury instructions, etc. However, there are… Continue Reading

Court Affirmed Finding That An Oral Partnership Existed And That A Partner Breached Fiduciary Duties

In Harun v. Rashid, two individuals started a restaurant business; one operated the business and the other financed it. No. 05-16-00584-CV, 2018 Tex. App. LEXIS 231 (Tex. App.—Dallas January 9, 2018, no pet. history). After some disagreements, the operator froze the financier out of the business. The financier sued, asserting claims of breach of fiduciary… Continue Reading
.