PJC Business

F IDUCIARY D UTY

PJC 104.2

ciary, would be conditioned on an affirmative answer. PJC 104.3, placing the burden on the beneficiary, would be conditioned on a negative answer. Modification of question or instruction. The instruction may require modifica tion based on the specific facts involved. Not every fiduciary relationship creates a general fiduciary duty. See KCM Financial LLC v. Bradshaw , 457 S.W.3d 70, 74, 80– 82 (Tex. 2015) (holding that scope of executive-right holder’s fiduciary duty to non executive-right holder is to act with utmost good faith and fair dealing, but scope of duty does not require executive to wholly subordinate its interests to non-executive’s interests when their interests conflict); National Plan Administrators, Inc. v. National Health Insurance Co. , 235 S.W.3d 695, 700–704 (Tex. 2007) (recognizing parties’ agreement to limit fiduciary duties that would otherwise exist between agent and prin cipal); Sterling Trust Co. v. Adderley , 168 S.W.3d 835, 846–47 (Tex. 2005) (sustaining objection to jury instruction for failure to reflect contractual limitation of fiduciary duties); Brewer & Pritchard, P.C. , 73 S.W.3d at 200–205 (limiting associate lawyer’s fiduciary duty to employer law firm when acting as employer’s agent in pursuit of business opportunities). In such cases, it may be appropriate to modify the list of duties in PJC 104.2 to define the scope of the fiduciary duty. If there are specific duties inherent in a particular formal fiduciary relationship, those duties at issue should be defined. For example, if the fiduciary duty claim is against a corporate officer or director, depending on the facts of the case, in addition to some or all of the duties set out in PJC 104.2 it may be appropriate to instruct that the officer’s or director’s fiduciary duty includes the obligation not to usurp corporate opportunities for personal gain and to exercise uncorrupted business judgment for the sole benefit of the corporation. See Ritchie v. Rupe , 443 S.W.3d 856, 883, 886–87 (Tex. 2014). Similarly, an agent entrusted with funds owes the principal a duty to exercise a high degree of care to conserve the principal’s money and pay it only to those entitled to receive it. City of Fort Worth v. Pippen , 439 S.W.2d 660, 665 (Tex. 1969); IQ Hold ings, Inc. v. Stewart Title Guaranty Co. , 451 S.W.3d 861, 871 (Tex. App.—Houston [1st Dist.] 2014, no pet.). If multiple and distinct breaches of fiduciary duty are alleged involving more than one transaction or action, it may be appropriate to modify the question or instructions in certain circumstances. See, e.g., Holland v. Lovelace , 352 S.W.3d 777, 789 (Tex. App.—Dallas 2011, pet. denied) (holding that even if some breaches of fiduciary duty occurred beyond limitations period, where jury charge failed to ask dates of different acts breaching fiduciary duty, entire judgment was affirmed based on finding of breach of fiduciary duty that was submitted broadly, because record contained some evidence of misconduct occurring within limitations period) (citing Fleet v. Fleet , 711 S.W.2d 1, 2 (Tex. 1986) (stating jury charge submitted all allegations of breach of fiduciary duty in one issue, but with each different act lettered “A” through “K”) and First City National Bank of Paris v. Haynes , 614 S.W.2d 605, 608 (Tex. App.—Texarkana 1981,

215