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E XPRESS T RUSTS

PJC 235.13

PJC 235.13 Remedies for Breach of Fiduciary Duty (Comment)

Actual damages. In a proper case, actual damages may be recovered pursuant to Tex. Prop. Code § 114.008. See PJC 235.14 (actual damages for breach of trust). Profits derived by trustee. Any profit derived by the trustee from a breach of trust is recoverable even though the trustee is otherwise exculpated from liability. Tex. Prop. Code § 114.007(a)(2). 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 v. Rappeport , 33 S.W.3d 282, 310–11 (Tex. App.—Texarkana 2000, pet. denied) (intentional breach of fiduciary duty 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 regard ing 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 exemplary damages may be awarded)). If exem plary damages are in issue, see PJC 115.37–115.46 in the current edition of Texas Pat tern Jury Charges—Business, Consumer, Insurance & Employment . Additional remedies for breach of trust. Tex. Prop. Code § 114.008(a) provides that a court may— 1. compel a trustee to perform the trustee’s duties; 2. enjoin the trustee from committing a breach of trust; 3. compel the trustee to redress a breach of trust; 4. order a trustee to account; 5. appoint a receiver to take possession of the trust property and administer the trust; 6. suspend the trustee;

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