pjc-family-2024-lib

PJC 235.13

E XPRESS T RUSTS

7. remove the trustee when the trustee materially violates or attempts to vio late a trust, the trustee becomes incapacitated or insolvent, the trustee fails to make a necessary accounting, or the court finds other cause for the trustee’s removal; 8. reduce or deny compensation to the trustee; 9. void an act of the trustee, impose a lien or a constructive trust on trust property, or trace trust property of which the trustee wrongfully disposed and recover the property or the proceeds from the property; or 10. order any other appropriate relief. Concerning receiverships and injunctions, see Tex. Civ. Prac. & Rem. Code chs. 64, 65. Jury questions. Whether equitable relief is granted is for the court to decide based on “the equity of the circumstances.” “[W]hen contested fact issues must be resolved before equitable relief can be determined, a party is entitled to have that reso lution made by a jury.” Burrow v. Arce , 997 S.W.2d 229, 245 (Tex. 1999). Equitable relief generally. Where a trustee has profited through a breach of trust, as described in PJC 235.9–235.12 (breach of duty), the plaintiff is entitled to equitable relief (such as rescission, constructive trust, or fee forfeiture) without having to show that the breach caused damages. Burrow , 997 S.W.2d at 240; Kinzbach Tool Co. v. Corbett-Wallace Corp. , 160 S.W.2d 509, 514 (Tex. 1942); see also Restatement (Third) of Agency § 8.01 cmt. d (2006) (listing remedies). Rescission. The court may grant rescission of a transaction accomplished by a breach of the defendant’s fiduciary duty. See Allison v. Harrison , 156 S.W.2d 137, 140 (Tex. 1941) (purchase of land by fiduciary without full disclosure by fiduciary was voidable and could be set aside at plaintiff’s option, even without proof that price obtained was unreasonable); see also Schiller v. Elick , 240 S.W.2d 997, 1000–01 (Tex. 1951) (setting aside deed obtained through fiduciary’s breach). Constructive trust. The court may impose a constructive trust to restore property or profits lost through the fiduciary’s breach. Consolidated Gas & Equipment Co. v. Thompson , 405 S.W.2d 333, 336 (Tex. 1966); Holloway , 368 S.W.2d at 577; Slay v. Burnett Trust , 187 S.W.2d 377, 388 (Tex. 1945). Fee forfeiture. The right to fee forfeiture does not present a jury question. If the amount earned is disputed, however, see PJC 115.17 in the current edition of Texas Pattern Jury Charges—Business, Consumer, Insurance & Employment .

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