Texas Fiduciary Litigator

Texas Fiduciary Litigator

The Intersection of Texas Courts and the Fiduciary field

Category Archives: Items of Interest

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Texas Statutes Now Allow A Court To Modify Or Reform An Unambiguous Will

I. Introduction Historically, Texas courts could not resort to extrinsic evidence to construe an unambiguous will. San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex. 2000). The Texas Supreme Court stated as follows: In construing a will, the court’s focus is on the testatrix’s intent. This intent must be ascertained from the language found… Continue Reading

OCC Announces That It Will Consider Rule Changes On Fiduciary Capacity and Non-Fiduciary Custody Activities

The OCC recently issued an advance notice of proposed rulemaking  (ANPR) regarding the scope of activities that are fiduciary in nature, as well as the requirements of non-fiduciary custody activities of national banks, federal thrifts and federal branches of foreign banks. In particular, the OCC is considering amending the definition of “fiduciary capacity” to include trust-related… Continue Reading

Federal District Court Refuses To Dismiss Aiding And Abetting Breach Of Fiduciary Duty Claim Against A Law Firm

In Milligan v. Salamone, the Greenberg Taurig lawfirm represented the bankrupt company when it sued a president and board member. No. 1:18-CV-327-RP, 2019 U.S. Dist. LEXIS 41009 (W.D. Tex. March 14, 2019). Greenberg drafted an agreement that would cancel the president’s employment contract, release him from his non-competition and non-solicitation obligations, and promise to pay… Continue Reading

David F. Johnson Named Top Author in JDSupra Readers’ Choice Awards

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, has been recognized as a top author by JDSupra in the 2019 Readers’ Choice Awards. JD Supra’s Readers’ Choice Awards encompasses 26 different categories. From a pool of more than 800 authors, David’s insightful commentary was ranked fourth in the wealth management readership category.… Continue Reading

Recorded Webinar – The Velvet Hammer: Undue Influence Based On Deceit, Fraud, and Relationship Poisoning And A Financial Institution’s Duty To Detect and Report Financial Exploitation

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, discusses the great transfer of wealth from the baby boomer generation, elder abuse and financial exploitation. Undue influence often arises out of seemingly kind individuals who ingratiate themselves to an elderly person, inserting themselves between the person and relatives, and obtaining the person’s bounty due to… Continue Reading

Webinar – The Velvet Hammer: Undue Influence Based on Deceit, Fraud, and Relationship Poisoning and a Financial Institution’s Duty To Detect and Report Financial Exploitation (March 15, 10:00 am CST)

With the great transfer of wealth from the baby boomer generation, elder abuse and financial exploitation is a very timely and important topic. Undue influence often arises out of seemingly kind individuals who ingratiate themselves to an elderly person, inserting themselves between the person and relatives, and obtaining the person’s bounty due to deceit. This… Continue Reading

Presentation: Saving Your Damages Award Via Temporary Injunctive Relief

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, presented his paper on “Saving Your Damages Award Via Temporary Injunctive Relief” to the State Bar of Texas’s Damages in Civil Litigation Course in Dallas, Texas, on February 8, 2019.  In addition to a general discussion of issues concerning obtaining temporary injunctive relief, the presentation included… Continue Reading

Federal District Court Held That A Shareholder Of A Company Did Not Owe Fiduciary Duties To The Company Regarding A Transfer Of Stock Even Though He Was Also An Officer

In Liberty Bankers Life Ins. Co. v. Lenhard, a company sued its former chief executive officer and shareholder for breaching fiduciary duties and fraudulent statements regarding an agreement to transfer his stock in the company. No. 3:16-CV-2417-N, 2019 U.S. Dist. LEXIS 19390 (N.D. Tex. February 6, 2019). The defendant filed a motion to dismiss the… Continue Reading

Court Holds That A Bank’s Employees Cannot Conspire To Breach Fiduciary Duties And That The Bank Did Not Owe Fiduciary Duties To A Depositor

In Herring v. Am. Paper & Janitorial Prods., the plaintiff was a subcontractor who provided janitorial services for a bank and was also a depositor of the bank. No. H-17-3474, 2018 U.S. Dist. LEXIS 215765 (S.D. Tex. December 24, 2018). After the plaintiff’s representatives were found stealing food after a party, the plaintiff’s contract was… Continue Reading

Court Discusses Diversity of Citizenship Jurisdiction Where A Trustee Removed The Case

In Thunder Patch II, LLC v. JPMorgan Chase Bank, N.A., plaintiffs filed suit against a trustee in state court seeking a declaration regarding the enforceability of a mineral lease, and the trustee removed the case to federal court based on diversity of citizenship. No. 5-18-CV-00629-OLG-RBF, 2018 U.S. Dist. LEXIS 207696 (W.D. Tex. December 10, 2018).… Continue Reading

Recorded Webinar – Fiduciary Litigation Update: 2017-2018

David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, discusses interesting fiduciary issues that Texas courts have discussed during the survey period of mid-2017 through mid-2018. Some of the issues covered are the tort of intentional interference with inheritance rights, the enforcement of arbitration and forum-selection clauses in trusts and wills, the enforcement of exculpatory… Continue Reading

Presentation-Temporary Injunctive Relief in Texas

David F. Johnson presented his paper “Temporary Injunctive Relief in Texas” to the State Bar of Texas’s Advanced Civil Appellate Course in Austin, Texas, on September 6, 2018. David has handled many appeals from temporary injunctions.  He provided technical guidance on the complicated issues arising from these types of interlocutory appeals and also provided practical… 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

Presentation: Fiduciary Litigation Update, Texas Bankers Association’s Legal Conference

David F. Johnson presented his paper on “Litigation Update, Including Fiduciary Issues” to the Texas Bankers Association’s Legal Conference in Austin, Texas, on April 5, 2018.  This presentation covered recent Texas precedent on arbitration clauses, forum-selection clauses, lost documents, aiding and abetting breach of fiduciary duty, damages for a trustee’s breach of fiduciary duty, and… Continue Reading

Recorded Webinar – Remedies For A Breach of Fiduciary Duty Claim in Texas

Thank you to everyone who joined us on February 27 for the webinar “Remedies for a Breach of Fiduciary Duty Claim 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 Texas Fiduciary… 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

Webinar – Remedies For a Breach of Fiduciary Duty Claim in Texas (Feb. 27 at 10:00 am CST)

  David F. Johnson will discuss the potential remedies that plaintiffs can obtain for breach of fiduciary duty claims with an emphasis on trust disputes, and will cover: 1) pretrial remedies of temporary injunctive relief, receiverships, and audits; 2) legal remedies of damages, attorney’s fees, pre-judgment interest; 3) equitable remedies of fee forfeiture, profit and… 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

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
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