David F. Johnson co-presented “Minority Investor Rights in Private Companies: Buy-Sell Agreements, Court-Ordered Buyouts, Breach of Fiduciary Duty” for a nationwide audience for Stafford Webinars on January 20, 2021. David was honored to present with Peter A. Mahler and Peter J. Sluka from Farrell Fritz, PC from New York. The presenters discussed the rights of
Federal Courts Deny Motions To Dismiss Breach Of Fiduciary Duty Claims Due To The Economic Loss Rule
In R.P. Small Corp. v. Land Dep’t, Inc., the plaintiff sued the defendant for breaching fiduciary duties due to a confidential relationship regarding oil and gas development. No. H-20-14902021 U.S. Dist. LEXIS 133695 (S. D. Tex. July 19, 2021). The plaintiff alleged that the defendant took advantage of his relationship, lied about his qualifications and experience, and overbilled and had self-dealing transactions. The defendant filed a motion to dismiss based on the economic loss rule, arguing that the plaintiff’s claims all arose from oral and written contracts. The federal district court denied the motion to dismiss. The court first discussed the economic loss rule:
Under Texas law, the “economic loss rule generally precludes recovery in tort for economic losses resulting from a party’s failure to perform a contract when the harm consists only of the economic loss of a contractual expectancy.” In determining if the economic loss rule applies, Texas courts look to both the “source of the alleged duty and the nature of the claimed injury.” “[A] party may elect a recovery in tort if the duty breached stands independent from the contractual undertaking, and the alleged damages are not solely the result of a bargained-for contractual benefit.” This is because “‘[t]ort obligations are in general obligations that are imposed by law—apart from and independent of promises made and therefore apart from the manifested intention of the parties—to avoid injury to others.’”
Presentation: Breach of Fiduciary Duty Claims Against Trustees/Managers of Closely Held Businesses
David F. Johnson co-presented “Breach of Fiduciary Duty Claims Against Trustees/Managers of Closely Held Businesses” with Kenneth J. Fair from Wright, Close & Barger LLP to the AFHE (Attorneys For Family-Held Enterprises) Fall Conference in Phoenix, Arizona, on November 29, 2021. This presentation discussed how and why trusts own closely held business interests, trustee’s duties
Presentation: Breach of Fiduciary Duty Claims Against Trustees/Managers of Closely-Held Businesses
David F. Johnson presented “Breach of Fiduciary Duty Claims Against Trustees/Managers of Closely-Held Businesses” with Kenneth J. Fair of Wright Close & Barger, LLP, on July 22, 2021, for Strafford Webinars to a national audience. This presentation covered various issues involved in a trustee owning an interest in a closely-held business when disputes arise. The
Court Holds That Purchaser Of Partnership Property Was Not Liable For Aiding And Abetting A General Partner’s Breach Of Fiduciary Duty
In Cohen v. Newbiss Prop., a limited partner sued a transferee of real property for aiding and abetting breach of fiduciary duty and conspiracy to breach fiduciary duty. No. 01-19-00397-CV, 2020 Tex. App. LEXIS 9190 (Tex. App.—Houston [1st Dist.] November 24, 2020, no pet. history). While the limited partners were suing the general partner, the defendants/transferees bought the property. The trial court granted the transferees’ motion for summary judgment, and the limited partners appealed.
Continue Reading Court Holds That Purchaser Of Partnership Property Was Not Liable For Aiding And Abetting A General Partner’s Breach Of Fiduciary Duty
Court Holds That A Trustee Had The Power To Sell Trust Property To An Affiliate, Though Such An Act May Be In Breach Of A Duty
In Pense v. Bennett, the ward in a guardianship proceeding sued to invalidate the sale of real property from a trust created for his benefit to an affiliate of the trustee. No. 06-20-00030-CV, 2020 Tex. App. LEXIS 8002 (Tex. App.—Texarkana October 8, 2020, no pet.). The trial court granted summary judgment for the trustee, held that the sale was effective, but expressly refused to rule on a breach of fiduciary duty claim based on the transaction as it was pending in another proceeding. The ward appealed.
The court of appeals explained how the guardian had sought and obtained court approval for the creation of a management trust and the transfer of real property from the guardianship estate to the new trust. The trustee of that trust had the express authority to sell trust property:
Article VIII of the Trust Instrument lists the powers of the trustee. And, “[w]here the language of the trust instrument is unambiguous and expresses the intentions of the maker, the trustee’s powers are conferred by the instrument and neither the court nor the trustee can add or take away such power.” As pertinent here, the Trust Instrument authorized the trustee to: “[P]artition, exchange, release, convey or assign any right, title or interest of the trust in any real estate or personal property owned by the trust”; “[S]ell, exchange, alter, mortgage, pledge or otherwise dispose of trust property”; “[E]xecute and deliver any deeds, conveyances, assignments, leases, contracts, stock or security transfer powers, or any other written instrument of any character appropriate to any of the powers or duties herein conferred on the Trustee”; and “[H]old title to investments in the name of the Trustee or a nominee.”
In addition to these powers specified in the Trust Instrument, the Texas Trust Code authorizes “a trustee [to] exercise any powers . . . that are necessary or appropriate to carry out the purpose of the trust.” Those powers include the power to “contract to sell, sell and convey, or grant an option to sell real or personal property at public auction or private sale for cash or for credit or for part cash and part credit, with or without security.”
Court Affirms The Equitable Forfeiture Of A Manager’s Partnership Interest Due To Breach Of Fiduciary Duty And Discussed Interesting Jury Instruction Issues
In Michael D. Heatley v. Red Oak 86, L.P. & Charles Johnson, investors in a limited partnership sued the managing member for breach of fiduciary duty. No. 05-18-01083-CV, 2020 Tex. App. LEXIS 6592 (Tex. App.—Dallas August 17, 2020, no pet. history). The jury found that the defendants owed a fiduciary duty, breached the duty,
Presentation: Remedies for Breach of Fiduciary Duty Claims
David F. Johnson presented his paper on “Remedies for Breach of Fiduciary Duty Claims” to the Tarrant County Probate Bar Association’s Litigation Seminar on August 7, 2020.
Continue Reading Presentation: Remedies for Breach of Fiduciary Duty Claims
Court Affirmed A Trial Court’s Holdings On The Removal Of A Trustee, The Trustee’s Discretion To Construe A Trust, A Trustee’s Advice Of Counsel And In Terrorem Defenses, And The Termination Of A Trust
In re Estate of Bryant, a couple set up three trusts for their three children, Bill, Leslie, and Jane. No. 07-18-00429-CV, 2020 Tex. App. LEXIS 2131 (Tex. App.—Amarillo March 11, 2020, no pet. history). After the couple had both passed away, their son Bill assumed the role of trustee of three trusts: Irrevocable Trust,
Court Holds That A Plaintiff Can Raise A Conspiracy To Breach Fiduciary Duty Claim Even Where The Party Who Owed Fiduciary Duties Was Not A Party To The Suit
In Klinek v. Luxeyard, Inc., a company sued its majority shareholder in a suit for breach of fiduciary duty arising from a pump-and-dump scheme and later settled that claim. No. 14-17-00899-C, 2019 Tex. App. LEXIS 9421 (Tex. App.—Houston [14th Dist.] October 29, 2019, no pet. history). The company then sued a third party for