PJC Business

F IDUCIARY D UTY

PJC 104.4

PJC 104.4

Question and Instruction—Breach of Fiduciary Duty Defined by Statute or Agreement—Burden on Fiduciary

QUESTION ______ Did Don Davis comply with all of the following duties?

[List duties alleged to have been breached and the standard of care using language from the applicable statute or agreement or both. Also list any applicable common-law duties as provided in PJC 104.2.] Answer “Yes” or “No.” Answer: _______________ COMMENT When to use. PJC 104.4 submits the question of breach of fiduciary duty defined by a statute or an agreement when the fiduciary bears the burden of proof. See National Plan Administrators, Inc. v. National Health Insurance Co. , 235 S.W.3d 695, 700–704 (Tex. 2007); Sterling Trust Co. v. Adderley , 168 S.W.3d 835, 846–47 (Tex. 2005). See, e.g., Tex. Bus. Orgs. Code §§ 152.203–.207 (“TBOC,” which replaced the Texas Revised Partnership Act (“TRPA”)) regarding duties applicable to partners. If the duty is defined by a trust agreement or the Texas Trust Code (Tex. Prop. Code tit. 9, subtit. B), see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Family & Probate PJC 235.9–235.15. If the duty is defined by an agree ment relating to oil and gas exploration or production, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Oil & Gas PJC 304.1–304.2. If the duty arises from an attorney-client relationship, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Malpractice, Premises & Products PJC 61.12. The burden of proof is on the fiduciary when the fiduciary has profited or benefited from a transaction with the beneficiary and a presumption of unfairness therefore arises. For cases arising from a statute or an agreement in which the beneficiary has the burden of proof, see PJC 104.5. Source of duty instructions. Insert the language from the statute or agreement when defining the duty or duties. The duties created by an agreement will vary on a case-by-case basis. National Plan Administrators, Inc. , 235 S.W.3d at 702–04. In a given case, some or all of the duties listed in PJC 104.2 may also apply. If so, those duties should also be listed in the instruction. In the context of a partnership, the Texas Supreme Court has stated that the duties owed by partners under the TRPA are “in the nature of a fiduciary duty in the conduct

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