PJC Business

F IDUCIARY D UTY

PJC 104.4

finding of breach of fiduciary duty may need to be conditioned on a “No” answer to PJC 104.4. See, e.g., PJC 115.15–115.18. If there is a dispute about whether the fiduciary profited or benefited from a transac tion with the beneficiary, or whether the fiduciary placed himself in a position in which his self-interest might conflict with his obligations as a fiduciary, a jury ques tion may be necessary to decide that issue. PJC 104.4, placing the burden on the fidu ciary, would be conditioned on an affirmative answer. PJC 104.5, placing the burden on the beneficiary, would be conditioned on a negative answer. 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. The statute or agreement that is the source of the fiduciary duty may define the remedies and damages for a breach of that duty. For a discussion of breach of fiduciary duty and fee forfeiture in the attor ney-client context, see the current edition of State Bar of Texas, Texas Pattern Jury Charges—Malpractice, Premises & Products PJC 84.7.

223