TABLE OF CONTENTS
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I. ESTABLISHMENT OF FIDUCIARY RELATIONSHIP – WHAT IS A FIDUCIARY?
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1. Noun
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2. Adjective
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3. Capacity
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4. Duty
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5. Relation
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6. Doctrine
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II. FIDUCIARY RELATIONSHIPS AND RELATED TORT LAW
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A. Formal Fiduciary Relationships
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1. Attorneys.
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2. Partners.
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3. Associates of law firms.
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4. Agents
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5. Spouses.
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6. Holders of power of attorney.
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7. Officers of corporations
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8. Joint venturers.
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9. Executors & trustees.
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10. Securities brokers & customers.
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11. Taxpayers.
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12. Class representatives.
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13. Mineral rights holders.
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14. Condominium board members.
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15. Employees.
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B. Informal or Confidential Fiduciary Relationships
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1. In most relationships.
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2. In business transactions.
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C. Special Fiduciary Relationships
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D. Fiduciary and Economic Torts in Family Law
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III. BREACH OF FIDUCIARY DUTY
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A. Fiduciary Duties Owed Between Spouses.
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1. Fiduciary duty between spouses.
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2. Good faith and fair dealing.
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3. Confidential relationship.
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4. Fraud on the community.
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B. Management of Property.
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1. Management and control of joint community property.
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2. Transfer of joint community property.
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3. Separate property and special community property
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4. Transfer of special community property.
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5. Management rights and the Trust Fund Doctrine.
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6. Presumption of constructive fraud.
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C. Actual Fraud
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1. Definition.
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2. Intent to harm
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3. Elements for proof of actual fraud.
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4. Misrepresentation.
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5. Burden of proof.
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6. Suits between spouses regarding separate estates
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7. Third parties jointly and severally liable.
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D. Constructive Fraud
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1. Constructive fraud.
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2. Based on fiduciary duty.
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3. Intent to deceive not required.
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4. Disposal of other spouse's interest in community property.
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5. Presumption of constructive fraud.
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6. Burden of proof.
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7. Moderate gifts to third parties.
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8. Capricious or excessive gifts.
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9. Factors considered by court.
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10. Cases involving constructive fraud.
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a. Change of life insurance beneficiaries.
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b. Gifts outside the community.
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c. Waste.
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d. Gifts to paramours
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e. Management of community property.
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E. Schlueter V. Schlueter – No Independent Cause of Action Between Spouses for Damages to the Community Estate
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1. No separate tort cause of action for fraud on the community.
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2. "Just and right" property division.
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3. Division of marital estate in "just and right" manner
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4. "Fraud on the community" damages.
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5. Fraud on the community not abolished.
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6. Actual fraud regarding separate estates.
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7. Personal injury tort claims.
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8. Money judgment is available.
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9. Money judgment for fraud on the community.
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10. Amount of money-judgment.
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11. Waste of community assets considered.
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12. No punitive damages allowed.
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13. Vickery v. Vickery.
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a. Jury award upheld.
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b. Dissent's view.
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F. Inception and Duration of Fiduciary Duty.
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1. Fiduciary duty before marriage.
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2. Marital agreements
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3. Duration of fiduciary duty.
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4. Fiduciary duty terminates on divorce.
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5. Fiduciary duty did not expire on divorce.
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6. Fiduciary duty ends during contested proceeding.
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G. Statute of Limitations for Breach of Fiduciary Duty
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1. Statute of limitations.
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2. Commencement of statute of limitations.
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H. Claims and Remedies for Breach of Fiduciary Duty Against Third Parties.
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1. Claims against third parties.
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2. Third party who knowingly participates in breach of fiduciary duty may be liable.
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3. Conveyance of community as legal fraud.
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4. Proof required.
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5. Intent to defraud known.
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6. Constructive trust.
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7. Money judgments against third parties.
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I. Remedies Available for Fraudulent Conduct.
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1. Disproportionate division of community estates.
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2. Recovery by injured spouse.
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3. Money judgment is viable remedy.
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4. Amount of money judgment.
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5. Owelty can equalize awards.
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6. Evidence should be presented.
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7. Constructive trust remedy available.
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8. Express agreement.
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9. Flexibility.
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10. Confidential relationship.
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11. Proof.
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12. Examples of constructive trust.
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13. Resulting trusts.
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14. When resulting trust arises.
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15. Relationship of parties.
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16. Resulting trust not applicable.
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17. Burden of proof.
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18. Proof of actual or constructive fraud.
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19. Texas Uniform Fraudulent Transfer Act
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20. Creditor defined.
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21. Transfer is fraudulent if elements met.
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22. Transfer fraudulent as to a creditor.
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23. Burden of proof.
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24. Remedies.
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25. Election of remedies.
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26. Punitive damages.
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