PJC Business

PJC 104.2

F IDUCIARY D UTY

no writ) (stating “[a] separate inquiry in checklist fashion as to specific acts of . . . breaches of duty, . . . in the manner submitted in this case, is perfectly proper”)). Knowing participation. An additional question or instruction may be required when the plaintiff alleges that a defendant is liable because it knowingly participated in another’s breach of fiduciary duty. See Kinzbach Tool Co. , 160 S.W.2d at 513–14. Caveat. If the burden of persuasion is on the fiduciary, it is unclear which party bears the burden of requesting the compliance question. Compare Moore v. Texas Bank & Trust Co. , 576 S.W.2d 691, 695 (Tex. App.—Eastland 1979), rev’d on other grounds , 595 S.W.2d 502 (Tex. 1980) (burden to properly request issue rests on plain tiff-beneficiary because it “is an element of the plaintiff’s theory of recovery”), with Cole , 559 S.W.2d at 89 (fiduciary has burden of “securing a finding the confidential relationship was not breached”). Remedies. See PJC 115.15 regarding equitable remedies and damages for breach of fiduciary duty; PJC 115.16 for a question on the amount of profit disgorgement; PJC 115.17 for a question on the amount of forfeiture of fees; and PJC 115.18 for a question on actual damages for breach of fiduciary duty. For a discussion of breach of fiduciary duty and fee forfeiture in the attorney-client context, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Malpractice, Premises & Products PJC 84.7.

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