Texas Fiduciary Litigator

Texas Fiduciary Litigator

The Intersection of Texas Courts and the Fiduciary field

Category Archives: Items of Interest

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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

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

Recorded Webinar – Fiduciary Litigation Update 2016-2017

Thank you to everyone who joined us on December 12 for the webinar “Fiduciary Litigation Update.” The recorded webinar link is now available.  If you are interested in joining our next complimentary webinar, please send your request to dfjohnson@winstead.com. David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, discusses Texas cases that impact… Continue Reading

Presentation: Dealing With Policies and Protocols of Banking Institutions In Texas (State Bar of Texas, Fiduciary Litigation Course)

On December 1, 2017, David F. Johnson presented his paper “Dealing with Policies and Protocols of Banking Institutions in Texas” to the State Bar of Texas’s 19th Annual Fiduciary Litigation Course in San Antonio, Texas. This presentation covered unique statutes that impact bank litigation, new statutes on vulnerable persons and durable powers of attorney, arbitration… Continue Reading

Webinar – Fiduciary Litigation Update 2016-2017 (Dec. 12 at 10:00 am CST)

David F. Johnson will present a forty-five minute webinar on Texas cases that impact fiduciaries. Some of the topics will include: mental anguish and punitive damages for breach of fiduciary duty, lost trust documents, venue for trust disputes, claims against trust property, release of trustees, public policy for voiding wills/trusts, tortious interference with inheritance, conspiracy/aiding… 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

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

Legislative Update Impacting Fiduciaries (Texas Bankers Association)

On October 26, 2017, David F. Johnson presented “Legislative Update Impacting Fiduciaries,” to the Texas Bankers Association’s Advanced Trust & Portfolio Management Forum in San Antonio, Texas.  This presentation discussed new statutory changes to the Texas Durable Power of Attorney Act that create duties to accept power of attorney transactions and that broaden agents’ authority… 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

Presentation: Temporary Injunctive Relief in Texas (Tarrant County Bar Association)

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, presented his detailed paper entitled “Temporary Injunctive Relief in Texas” to the Tarrant County Bar Association’s Business Litigation Section on October 17, 2017. This presentation included a discussion of the purpose of temporary injunctive relief; equitable elements for same; preliminary issues such as jurisdiction,… 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

Recorded Webinar – Legislative Update: New Vulnerable Persons and POA Statutes

Thank you to everyone who joined us on September 26 for the webinar “Legislative Update: New Vulnerable Persons and POA Statutes.”  The recorded webinar link is now available.  If you are interested in joining our next complimentary webinar, please send your request to dfjohnson@winstead.com. David F. Johnson, lead writer for the Texas Fiduciary Litigator blog,… Continue Reading

Webinar: Legislative Update – New Vulnerable Persons and POA Statutes (Sept. 26 at 10:00 am CST)

Join us for a complimentary webinar presentation covering recent changes to the Texas Estates Code’s Texas Durable Power of Attorney Act and recent legislation protecting vulnerable persons and how those impact financial institutions, broker/dealers, and investment advisors. Date: Tuesday, September 26, 2017 Time: 10:00 – 10:30 a.m. Central Time Cost: Complimentary Speaker: David F. Johnson Continuing Education… 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

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

Summary Judgments In Texas – Presentation in Dallas Aug. 16-18 and Houston Oct. 25-27

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, presented his paper and presentation on “Summary Judgments In Texas” to the State Bar of Texas’s Advanced Civil Trial Course on July 19-21, 2017 in San Antonio, Texas.   See links below for a copy of the paper and presentation. David will also present this… Continue Reading

Recorded Webinar – Recent Developments In Trustees’ Use Of Exculpatory, Release, and Disclaimer-Of-Reliance Clauses In Texas

Thank you to everyone who joined us on June 13 for the webinar “Recent Developments In Trustees’ Use Of Exculpatory, Release, and Disclaimer-Of-Reliance Clauses In Texas.”  The recorded webinar link is now available.  If you are interested in joining our next complimentary webinar, please send your request to dfjohnson@winstead.com. David F. Johnson, lead writer for the… Continue Reading

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

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:… Continue Reading

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

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… Continue Reading

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

David 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… Continue Reading

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

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… Continue Reading
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