Texas Fiduciary Litigator

Texas Fiduciary Litigator

The Intersection of Texas Courts and the Fiduciary field

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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

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

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