PJC Malpractice 2024

J OINT AND S EVERAL L IABILITY

PJC 72.11

PJC 72.11

Question and Instructions—Misapplication of Fiduciary Property or Property of Financial Institution as a Ground for Joint and Several Liability (Tex. Civ. Prac. & Rem. Code § 33.013(b)(2)(J))

QUESTION ______ Did Don Davis , with the specific intent to do harm to others, act in concert with [ name(s) of person(s) or entity(ies) with whom or with which Don Davis acted in concert ] to commit misapplication of fiduciary property or property of a financial institution that was a proximate cause of the damages, if any, to Paul Payne ? Don Davis acts with specific intent to do harm with respect to the nature of Don Davis ’s conduct and the result of [ name(s) of person(s) or entity(ies) with whom or with which Don Davis acted in concert ]’s conduct when it is [ name(s) of person(s) or entity(ies) with whom or with which Don Davis acted in con cert ]’s conscious effort or desire to engage in the conduct for the purpose of doing substantial harm to others. A person commits a misapplication of fiduciary property or property of a financial institution if he intentionally, knowingly, or recklessly misapplies property he holds as a fiduciary or property of a financial institution in a man ner that involves substantial risk of loss to the owner of the property or to a per son for whose benefit the property is held. “Fiduciary” includes— 1. a trustee, guardian, administrator, executor, conservator, and receiver; or 2. an attorney in fact or agent appointed under a durable power of attorney as provided by [ insert language from Texas Estates Code title 2, subtitle P ]; or 3. any other person acting in a fiduciary capacity, but not a commer cial bailee unless the commercial bailee is a party in a motor fuel sales agree ment with a distributor or supplier, as those terms are defined by [ insert language from Texas Tax Code section 162.001 ]; or 4. an officer, manager, employee, or agent carrying on fiduciary func tions on behalf of a fiduciary.

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