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B REACH OF D UTY BY P ERSONAL R EPRESENTATIVE

PJC 232.3

PJC 232.3

Remedies for Breach of Fiduciary Duty (Comment)

Actual damages. In a proper case, actual damages may be recovered for breach of fiduciary duty. Actual damages can include both general or direct damages and spe cial or consequential damages. Lesikar v. Rappeport , 33 S.W.3d 282, 305 (Tex. App.— Texarkana 2000, pet. denied). See comments at PJC 232.4. The Texas Estates Code also authorizes the recovery of damages for certain breaches of duty. See, e.g. , Tex. Est. Code §§ 359.101, 360.301. Exemplary damages. In a proper case, the plaintiff may also recover exemplary damages. Manges v. Guerra , 673 S.W.2d 180, 184 (Tex. 1984) (cancellation of lease obtained by willful and unconscionable breach of fiduciary duty and award of $382,608.79 in actual damages supported exemplary damages award of $500,000); International Bankers Life Insurance Co. v. Holloway , 368 S.W.2d 567, 584 (Tex. 1963) (corporation could also recover exemplary damages in case where corporate officers required to return profits for self-dealing stock sale, even though remedy elected was purely equitable in nature); Lesikar , 33 S.W.3d at 310–11 (intentional breach of fiduciary duty by executor may give rise to exemplary damages; imposition of constructive trust, even without award of “typical” actual damages, was sufficient to support exemplary damages award); Procom Energy, L.L.A. v. Roach , 16 S.W.3d 377, 385 (Tex. App.—Tyler 2000, pet. denied) (equitable return of property obtained by breach of fiduciary duty sufficient to support exemplary damages award). But see RDG Partnership v. Long , 350 S.W.3d 262, 280–81 (Tex. App.—San Antonio 2011, no pet.) (although exemplary damages may be recovered in connection with equitable relief, jury question and finding regarding value of equitable relief is required) (citing Martin v. Texas Dental Plans, Inc. , 948 S.W.2d 799, 804–05 (Tex. App.—San Antonio 1997, pet. denied) (concrete value must be assigned to equitable relief before exem plary damages may be awarded)). If exemplary damages are in issue, see PJC 115.37– .46 in the current edition of Texas Pattern Jury Charges—Business, Consumer, Insur ance & Employment . Additional remedies for breach of duty by personal representative. The Estates Code provides a number of remedies, for example— 1. an order assessing statutory penalties or damages for failing to perform duties (e.g., Tex. Est. Code §§ 356.559, 359.102, 360.301); 2. an order compelling a personal representative to perform the personal rep resentative’s duties (e.g., Tex. Est. Code §§ 357.005, 359.101); 3. an order requiring an independent executor to post bond (Tex. Est. Code § 404.002); 4. an order requiring a personal representative to file an annual account (Tex. Est. Code § 359.101);

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