pjc-family-2024-lib

PJC 235.10

E XPRESS T RUSTS

donee created presumption of unfairness in transactions). By definition, in any self dealing transaction the fiduciary is in such a position. The presumption may be rebutted by the fiduciary. Stephens County Museum, Inc. , 517 S.W.2d at 261; see also Texas Bank & Trust Co. , 595 S.W.2d at 509. Normally, a rebuttable presumption shifts the burden of producing evidence to the party against whom it operates but does not shift the burden of persuasion to that party. General Motors Corp. v. Saenz , 873 S.W.2d 353, 359 (Tex. 1993). In fiduciary duty cases, how ever, the presumption of unfairness operates to shift both the burden of producing evi dence and the burden of persuasion to the fiduciary. Sorrell v. Elsey , 748 S.W.2d 584, 586 (Tex. App.—San Antonio 1988, writ denied); Miller , 700 S.W.2d at 945–46; Fil lion v. Troy , 656 S.W.2d 912, 914 (Tex. App.—Houston [1st Dist.] 1983, writ ref’d n.r.e.); Cole v. Plummer , 559 S.W.2d 87, 89 (Tex. App.—Eastland 1977, writ ref’d n.r.e.); see also Peckham , 120 S.W.2d at 788 (issue of whether beneficiary of fiduciary relationship relied on fiduciary to perform his duties was immaterial). If there is a dispute over whether the fiduciary profited or benefited from the trans action or whether the fiduciary placed himself in a position in which his self-interest might conflict with his obligations as a fiduciary, a predicate jury question may be sub mitted to decide that issue, with the breach question conditioned on an affirmative answer. The burden of proof on the predicate issue is on the beneficiaries. If there is no evidence rebutting the presumption, no breach of fiduciary duty ques tion is necessary. Texas Bank & Trust Co. , 595 S.W.2d at 509. Liability questions normally place the burden of proof on the plaintiff, who is required to obtain an affirmative finding. When the burden is shifted to the fiduciary, however, a “No” answer supports liability.

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