In Gill v. Grewal, the suit arose out of a failed business venture between old college friends. No. 4:14-CV-2502, 2020 U.S. Dist. LEXIS 104461 (S. D. Tex. June 15, 2020)....more
In JTREO, Inc. v. Hightower & Assocs., the buyer of a note and mortgage sued the attorney for the lender who facilitated the transaction by loaning money to the buyer for breach of fiduciary duty arising from the fact that...more
In Hanschen v. Hanschen, a trustee challenged a default judgment. No. 05-19-01134-CV, 2020 Tex. App. LEXIS 4075 (Tex. App.—Dallas May 28, 2020, no pet. history). The family sued the trustee in his personal capacity and in his...more
Beneficiaries often request that a trustee secure a loan from a third party. In an economic downturn, such requests are even more prevalent. As a general rule, a trustee should not want to do so as it should assume that the...more
In Ron v. Ron, a wife created a trust with her husband as a trustee, a friend as a trust protector, and their children as the beneficiaries. No. 3:19-CV-00211, 2020 U.S. Dist. LEXIS 52507 (S.D. Tex. February 4, 2020)....more
This presentation will address beneficiaries requesting loans from trustees. There are multiple issues that arise regarding the trustee’s authority to do so under the trust’s language and statutory and common law, and the...more
4/8/2020
/ Beneficiaries ,
Continuing Legal Education ,
Coronavirus/COVID-19 ,
Corporate Counsel ,
Due Diligence ,
Duty of Confidentiality ,
Duty of Loyalty ,
Fiduciary Duty ,
Financial Adviser ,
Financial Services Industry ,
Impartiality ,
Loan Documentation ,
Loans ,
Recessions ,
Risk Management ,
Statutory Trusts ,
Trust Administration ,
Trust Assets ,
Trustees ,
Webinars
In Gooden v. Mackie, a borrower sued a mortgage servicer after the servicer foreclosed on the property. No. 4:19-CV-02948, 2020 U.S. Dist. LEXIS 25142 (S.D. Tex. January 22, 2020)....more
When the economy has a downturn, trustees are under more pressure to make distributions. Beneficiaries lose jobs, their individual asset portfolios decrease, and they may make the decision to go back to school....more
David F. Johnson presented his paper “Trustee Quandary: Criminal Activity By a Beneficiary With or On Trust Property,” to the Tarrant County Probate Bar Association on March 5, 2020. The presentation dealt with a trustee...more
In Energy Transfer Partners, L.P. v. Enter. Prods. Partners, L.P., one pipeline company sued another for breaching a duty of loyalty that allegedly arose out of a partnership to develop a pipeline. No. 17-0862, 2020 Tex....more
2/6/2020
/ Appeals ,
Breach of Duty ,
Business Formation ,
Condition Precedent ,
Duty of Loyalty ,
Energy Sector ,
Fiduciary Duty ,
Oil & Gas ,
Partnerships ,
Pipelines ,
Reversal ,
TX Supreme Court
In Taylor v. Rothstein Kass & Co., PLLC, a receiver for a failed business sued an accounting firm for various claims arising from the auditor’s issuance of a clean audit report concerning certain financial statements. No....more
2/6/2020
/ Aiding and Abetting ,
Auditors ,
Audits ,
Breach of Duty ,
Cause of Action Accrual ,
Federal Rule 12(b)(6) ,
Fiduciary Duty ,
Financial Statements ,
Joint Tortfeasors ,
Motion for Summary Judgment ,
Motion to Dismiss ,
Negligence ,
Professional Misconduct ,
Professional Negligence ,
Strict Liability
In In re Estate of Klutts, a son held his mother’s power of attorney when he assisted in securing a new 2008 will, which enhanced his share of the estate. No. 02-18-00356-CV, 2019 Tex. App. LEXIS 11063 (Tex. App.—Fort Worth...more
2/3/2020
/ Beneficiaries ,
Breach of Duty ,
Burden of Persuasion ,
Burden of Production ,
Burden-Shifting ,
Estate Planning ,
Fiduciary Duty ,
Motion for Summary Judgment ,
Power of Attorney ,
Probate ,
Self-Interest ,
Undue Influence Claims ,
Wills
Plaintiffs in civil litigation often seek punitive or exemplary damages. “Exemplary damages” means any damages awarded as a penalty or by way of punishment but not for compensatory purposes....more
1/27/2020
/ Actual Malice ,
Admissible Evidence ,
Breach of Duty ,
Civil Code ,
Confidential Information ,
Damages ,
Discovery ,
Evidence ,
Fiduciary Duty ,
Fraud ,
Gross Negligence ,
High Net-Worth ,
New Legislation ,
Petition for Writ of Certiorari ,
Punitive Damages ,
Retroactive Application ,
Rules of Civil Procedure ,
Statements of Net Worth ,
TX Supreme Court
David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, discusses Texas fiduciary litigation case law and addresses issues such as merger of trusts, Gun Trusts, statute of limitations, quasi-estoppel,...more
12/31/2019
/ Arbitration ,
Beneficiaries ,
Estate Planning ,
Estoppel ,
Fiduciary ,
Fiduciary Duty ,
Liability ,
Personal Liability ,
Reformation ,
Statute of Limitations ,
Supersedeas Bond ,
Trusts ,
Wills
In In re Estate of Poe, the son of a car dealership owner who was frozen out of control of the business by the dying father’s decision to issue new stock sued his father’s estate, trust, and officers of the business. No....more
David F. Johnson presented his paper “The Use of Arbitration, Forum Selection, and Jury-Waiver Clauses in Trust and Estate Litigation in Texas” to the Texas Bar Association’s Fiduciary Litigation Course in San Antonio on...more
12/10/2019
/ Arbitration ,
Dispute Resolution ,
Estate Planning ,
Estoppel ,
Fiduciary Duty ,
Forum Selection ,
Jury Waivers ,
Mandatory Arbitration Clauses ,
Rules of Civil Procedure ,
Trusts ,
Wills
In Budri v. FirstFleet, Inc., an employee sued his employer and supervisor for a number of causes of action, including a claim for breach of fiduciary duty. No. 3:19-CV-0409-N-BH, 2019 U.S. Dist. LEXIS 188251 (N.D. Tex....more
In In re Alexander, a beneficiary filed suit against the trustee based on multiple allegations of breach of fiduciary duty, including an allegation that the trustee attempted to transfer the trustee position to successors in...more
10/25/2019
/ Attorney-Client Privilege ,
Beneficiaries ,
Breach of Duty ,
Confidential Communications ,
Discovery ,
Document Productions ,
Duty to Disclose ,
Fiduciary Duty ,
Joint Clients ,
Trial Court Orders ,
Trusts ,
Work-Product Doctrine ,
Writ of Mandamus
David F. Johnson, lead writer for the Texas Fiduciary Litigator blog, presented “Detecting Elder Abuse and The Duty to Report Financial Exploitation” to the Southwest Association of Bank Counsel on Thursday, September 26,...more
10/2/2019
/ Durable Power of Attorney ,
Duty to Report ,
Elder Abuse ,
Elder Issues ,
Employer Mandates ,
Fiduciary Duty ,
Financial Abuse ,
FinCEN ,
Reporting Requirements ,
Suspicious Activity Reports (SARs) ,
Undue Influence Claims
Areas of Discussion:
- In this Presentation, we will discuss the following:
- Duty of loyalty;
- Authority for trustee compensation;
- Factors for reasonable compensation;
- Other issues arising from trustee...more
9/27/2019
/ Asset Management ,
Attorney's Fees ,
Beneficiaries ,
Conflicts of Interest ,
Duty of Loyalty ,
Duty to Disclose ,
Fiduciary Duty ,
Reasonable Compensation ,
Settlors ,
Trustees ,
Trusts ,
TX Supreme Court
In Shopoff Advisors, LP v. Atrium Circle, GP, the buyer and seller to a real estate transaction sued each other. No. 04-18-00438-CV, 2019 Tex. App. LEXIS 5764 (Tex. App.—San Antonio July 10, 2019, no pet. history)....more
In Sanders v. Hathaway, the decedent’s estate’s representative sued her sister for various claims arising from the decedent’s beneficiary designation changes, deed transfers, and accounts payable on death changes that...more
In the Estate of Gibbs, Bell transferred money to Gibbs for the purchase of real property and a trust agreement was executed that clarified that they owned the property equally. No. 02-18-00086-CV, 2019 Tex. App. LEXIS 4452...more
In CLC Roofing v. Helzer, a roofer purchased shingles from a seller and stored them on the seller’s property. No. 02-17-00229-CV, 2019 Tex. App. LEXIS 5927 (Tex. App.—Fort Worth July 11, 2019, no pet. history). ...more
In Garcia v. Communities in Schools of Brazoria County, a director sued a nonprofit’s board for breach of fiduciary duty arising from his removal. 2019 U.S. Dist. LEXIS 97017 (S. D. Tex. June 10, 2019)....more