CourtListener 10304361

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COURT OF APPEALS
EIGHTH DISTRICT OF TEXAS
EL PASO, TEXAS

JAMES E. WHITE, IV, Individually and as §
Beneficiary of the JANE WHITE TRUST;
MARTI WHITE WRIGHT, Individually and §
as a Beneficiary of the JANE WHITE TRUST;
and CLINTON WESLEY WHITE, §
Individually and as a Beneficiary of the JANE
WHITE TRUST, by and through his Next § No. 08-23-00243-CV
Friend, JAMES E. WHITE, IV and JAMES
WHITE, III, Individually and as TRUSTEE of § Appeal from the
the JANE WHITE TRUST,
§ 394th Judicial District Court
Appellants,
v. § of Presidio County, Texas

EDWARD McMINN WHITE, Individually § (TC# 7856A)
and as Trustee of the EDWARD McMINN
WHITE TRUST, and BEAUREGARD §
BRITE WHITE, Individually and as Trustee of
the BEAUREGARD BRITE WHITE TRUST §
and SUSAN COMBS, Temporary Interim
Trustee of the WHITE DIVISION TRUSTS. §

Appellees. §

OPINION

This appeal involves a protracted dispute between siblings over the administration of a trust

named after their mother, Jane White, the primary asset of which is the Brite Ranch (the Ranch) in

West Texas. The White Trust currently has four primary income beneficiaries: Appellee James

White, III (Jim), who was appointed as trustee in 2010; his two brothers Edward McMinn White
(Mac) and Beauregard Brite White (Beau), who are the Appellees; and his sister, Hester Ann White

Tyler (Hester Ann), who did not join the suit but was considered a nominal party in these

proceedings.1 In 2018, Mac and Beau sued Jim, alleging Jim breached his fiduciary duties as

trustee by failing to act as a prudent investor and by failing to make any income distributions. They

further alleged Jim engaged in self-dealing by employing himself and his family to work on the

Ranch without disclosing his contract and by paying himself and his family excessive

compensation.

After a jury found that Jim had breached his fiduciary duties to the beneficiaries, the trial

court entered a “Final Judgment Nunc Pro Tunc,” awarding a million dollars in damages to “the

trustee of the [White] Trust” for the “loss or depreciation in value” of the White Trust estate. In

addition, the trial court awarded Mac and Beau $1.5 million each in exemplary damages, in their

capacity as income beneficiaries of the White Trust. The trial court removed Jim as trustee due to

the breach of fiduciary duties and made several modifications to the White Trust, including

dividing it into four separate “Division Trusts” to be administered by each of the siblings, giving

them each an undivided interest in the Ranch and the ability to partition and sell their interests in

the same.

Prior to the trial court entering the Final Judgment Nunc Pro Tunc, three of Jim’s children,

James White IV (Cuatro), Clinton Wesley White (Clint), and Marti White Wright (Marti)—

contingent remainder beneficiaries of the White Trust—intervened in the proceedings (the

Intervenors) and filed multiple post-judgment pleadings seeking a new trial, as did Jim. The trial

court later struck the Intervenors’ petition and denied all other pending motions. Both Jim and the

Intervenors appealed from the final judgment.

1
In addition, the Brite Divinity School and the First Christian Church of Marfa were served in the proceeding and
were also named as nominal parties in the litigation as other income beneficiaries.

2
For the reasons set forth below, we hold that fundamental error in the jury charge requires

us to reverse the trial court’s final judgment and grant a new trial.

I. FACTUAL BACKGROUND

A. The Brite Trust

Beginning in 1885, Luke Brite began amassing land in a remote area of West Texas, which

became known as the Brite Ranch. At the time of his death in 1941, the Ranch consisted of

approximately 125,000 acres, with a closed herd of prize-winning cattle roaming the land. He left

the Ranch to his wife, Edward “Eddie” Brite, who subsequently passed away in 1963. In her Last

Will and Testament (the Will), Eddie created the Brite Trust, to be effective upon her death. The

White Trust in the present appeal was created upon the division of the Brite Trust. As the Brite

Trust’s terms govern the White Trust, we recite the provisions of the Brite Trust relevant to this

appeal.

The Brite Trust was composed of an undivided interest in the Ranch, a herd of

approximately 1,435 Hereford cattle, ranch buildings and equipment, various investment accounts

and cash, and other properties in Marfa, Texas. Eddie stated at least three times in the Will that the

ranchlands were not to be sold or mortgaged during the life of the trust, but could be mortgaged if

“absolutely necessary” to pay taxes on the property.2

The Will gave the trustee specific duties with regard to handling the trust assets, including

the duty to “continue the operation of [her] ranching properties.” Specifically, it gave the trustee

the authority to employ the services of a general manager of the Ranch, “paying to him as wages

or salary such amount as in the judgment of the trustee shall seem proper under the circumstances

2
The Will gave the trustee full power to mortgage and/or sell any part of her estate “except my ranchland” and further
provided that the ranchlands “shall not be sold, traded, or otherwise alienated by the trustee so long as this trust
continues.” It stated that the ranchlands were “to be held until this trust terminates.”

3
and on such terms as the trustee and the proposed manager shall agree, having due regard for the

proper administration of the trust,” after initially consulting with Hester, Nancy, and Jane (but

without requiring their agreement). The Will gave the trustee the authority to buy and sell cattle,

enter into mineral leases, borrow funds for Ranch operations and mortgage any assets in the Brite

Trust, save for the ranchlands themselves, and required the trustee to “keep all of the trust property

in good repair.” The Will provided that, if at any time it became “advantageous” to switch from

ranching to farming, the trustee was entitled to either engage in farming operations or lease the

land to third parties to do so for a term not to exceed the life of the trust. But the Will also contained

an exculpatory clause, stating that “[t]he trustee shall not be liable or accountable to anyone for

errors, if any, in judgment, and shall be required only to use good faith in the administration of this

trust.”

The Will provided that the Brite Trust was created for the benefit of Eddie’s daughter,

Hester White Vandevere; Eddie’s granddaughters, Jane White and Nancy Lynch; all of Eddie’s

great-grandchildren living at the time of her death (which included the parties to this suit—Jim,

Mac, Beau and Hester Ann—as well as certain of Nancy’s children); the Brite Divinity School (the

Divinity School); and the First Christian Church of Marfa (the Church). The Will further provided

that during its term, 90% of the “total income” from the Brite Trust was to be paid to Hester, Jane,

and Nancy, with each of them to receive 30% of the income, while the Church and the Divinity

School were to receive 5% of the income each. However, the Brite Trust did not provide a method

for determining the amount that would be considered the “total income.” It provided only that the

trustee was to pay the beneficiaries “periodically at the discretion of the trustee, but at least

quarterly if such payments are reasonably feasible.” The Will further provided that, upon the death

of Hester, Jane, or Nancy, their descendants were entitled to receive their proportionate share of

4
income. The Brite Trust was to terminate upon the death of Eddie’s last surviving great-grandchild,

with the corpus to be distributed primarily to Eddie’s great-great-grandchildren living at the time,

through the laws of intestate succession in existence at the time, but with the Church and the

Divinity School receiving 5% of the corpus each.

B. The 1990 clarification of the Brite Trust

On or about 1988, Hester, Jane, and three of Jane’s children—Jim, Beau, and Mac—filed

a petition in an El Paso District Court seeking an interpretation of the Brite Trust terms relating to

how and when income was to be distributed to the beneficiaries. In response to the petition, the

court entered a “Judgment Nunc Pro Tunc” in which it affirmed the income distribution

percentages set forth above and clarified the manner in which the Brite Trust assets were to be

distributed upon its termination. The judgment also established a plan for accounting for the

principal trust assets, annual Ranch operating costs, and income to be distributed to the income

beneficiaries.3 The accounting plan included a formula for establishing a “cash deficit amount”

(also referred to as the “holdback” amount) that the trustee could retain for operating expenses

before making income distribution. The cash deficit would fluctuate over time depending on the

economy and Ranch needs. The court’s judgment required the trustee to provide information to the

beneficiaries regarding the trust’s financials and to make an annual income distribution to the

beneficiaries in accordance with the above-described plan. In conjunction with the annual income

distribution, the trustee was ordered to hold an annual meeting, which the beneficiaries could

attend.

3
The trial court further ordered the trustee to distribute the sum of $702,234 to the income beneficiaries, which
represented the amount they would have received under the court’s plan had it been in effect from the inception of the
Brite Trust through calendar year 1989.

5
C. The 2008 declaratory judgment creating the Jane White Trust

In 1995, Eddie’s daughter, Hester, passed away, leaving behind Hester’s two daughters,

Jane White and Nancy Lynch, as the primary income beneficiaries under the Brite Trust. Several

years later, in 2008, by agreement of the parties, an El Paso probate court issued a Declaratory

Judgment in which it divided the Brite Trust into two trusts—the White Trust for the benefit of

Jane and her descendants and the Lynch Trust for the benefit of Nancy and her descendants (the

2008 Declaratory Judgment). The 2008 Declaratory Judgment provided that each trust was to have

assets in equal amounts. Thereafter, the property was divided such that each trust owned

approximately one-half of the original Brite Ranch, or approximately 61,548 acres. The White

Trust was given the operating portion of the Ranch, together with the right to keep the “Brite

Ranch” name and the “bar cross brand” associated with the Ranch. The Lynch Trust was given the

non-operating portion of the Ranch, as well as other properties.4

The 2008 Declaratory Judgment clarified that:

Both the Lynch Trust and the [] White Trust shall continue to be administered
pursuant to [Eddie’s] Will, the [1990 Nunc Pro Tunc] Judgment, this Order and the
Amendment approved hereby [but] [i]n the event of any conflict or inconsistency
between either this Judgment or the Amendment approved hereby and either the
Will or the Judgment, the provisions of this Order and the Amendment shall in all
respects control and govern.

The Lynch Trust is not involved in the current litigation.

D. Jim’s employment as the Ranch general manager and appointment as Trustee

When the White Trust was first created in 2008, a local bank, which JP Morgan Chase Bank

(JP Morgan) later acquired, was the sole trustee. At the time, Jim and his three siblings’ father,

4
The equalization of assets was accomplished in part through an exchange of property that Jane’s children held in
their “Children’s Trusts,” which Jane had previously created with property she had inherited from her mother. Jim’s
siblings gave Jim “power of attorney” to act on their behalf in that proceeding. In the current litigation, Mac and Beau
also claimed that Jim breached his duty to disclose information to them as required by the Estate Code during that
proceeding. However, because the jury did not find that Jim breached that duty, we do not elaborate on those claims.

6
whom we refer to as “Jim’s father” for clarity’s sake, served as the Ranch general manager, with

Jim assisting him. After Jim’s father retired, in May 2008, JP Morgan entered into a written contract

with Jim to serve as the Ranch general manager. The agreement provided that Jim would receive

a salary of $5,000 per month, a residence on the Ranch, payment of all utilities at the residence,

groceries, a motor vehicle, a stock trailer, health insurance for him and his family, gasoline, and

motor vehicle insurance. After JP Morgan resigned as trustee in December 2008, Jane White

became the successor trustee and continued Jim’s employment as Ranch manager under the same

contract. According to Jim, Jane also hired Jim’s wife and their sons (Cuatro and Clint) to work on

the Ranch, but it does not appear that they entered into a formal written contract. After Jane’s death

in 2010, Jim became the trustee of the White Trust. Jim admittedly continued to serve as the Ranch

general manager, in essence ratifying the prior written contract under which he had been hired, but

without formally disclosing the contract to his siblings. He also continued to provide compensation

to his family for their employment at the Ranch and continued to live on the Ranch with various

family members.

II. PROCEDURAL BACKGROUND

A. Mac and Beau’s lawsuit

On July 30, 2018, Mac and Beau filed their original petition against Jim, which they

amended several times. Their Ninth Amended Petition was the live pleading in this case.5 Mac and

Beau brought their suit in their individual capacities as the named beneficiaries of the White Trust

and “derivatively on behalf of the Trustee of the White Trust because the trustee cannot sue

5
On Jim’s motion, the trial court struck at least two provisions in the Ninth Amended Pleading; those provisions are
not at issue in this appeal.

7
himself,” complaining that Jim had not distributed any income to them since he became trustee.6

They named Jim as a defendant, both in his individual capacity and as trustee of the White Trust.

Their petition can be broken into two broad categories. First, they claimed Jim did not act as a

prudent investor and did not act in the beneficiaries’ best interest. Second, they claimed Jim

engaged in self-dealing by hiring himself and his family to work on the Ranch for excessive

compensation without disclosing the employment agreements to the beneficiaries.

(1) Breach of the Prudent Investor Rule

Mac and Beau listed several duties they believed Jim breached as trustee of the White Trust,

including the general duties of “impartiality,” “prudence,” and “good faith and fair dealing,” as

well as the duties to administer the trust according to its terms, “make trust property productive,”

pay income to the beneficiaries, keep proper records, and make proper disclosures and

accountings. In general, Mac and Beau’s theory of liability was based on the premise that Jim was

not acting in their best interest by continuing to operate the ranching business despite not

generating sufficient profit to allow for income distributions.

At trial, Beau and Mac called two expert witnesses who opined that Jim had a duty to act

as a prudent investor in accordance with the Prudent Investor Act, which states: “A trustee shall

invest and manage trust assets as a prudent investor would, by considering the purposes, terms,

distribution requirements, and other circumstances of the trust . . . [using] reasonable care, skill,

and caution.” Texas Property Code Ann. § 117.004(a). Among other things, the Act provides that

“[a] trustee shall diversify the investments of the trust unless the trustee reasonably determines

that, because of special circumstances, the purposes of the trust are better served without

6
Mac and Beau also brought the petition in their capacity as trustees of their Children’s Trusts, but as explained in
footnote 4 above, the jury did not find that Jim engaged in any wrongdoing with respect to Mac and Beau’s rights in
that capacity.

8
diversifying.” Tex. Prop. Code Ann. § 117.005. They believed Jim violated the prudent investor

duty by continuing the ranching operations, positing that a reasonably prudent investor would have

known after three years that ranching operations would not generate sufficient profit to allow for

income distributions, which they considered the primary purpose of the White Trust. They noted,

however, that Jim continued to invest in ranching operations long after that time elapsed, spending

over $1.2 million in White Trust assets to purchase ranch equipment, and $1.15 million for repairs

and maintenance, in addition to using approximately $2.6 million in trust assets to pay himself and

his family as Ranch employees. They opined that a prudent investor would have ceased ranching

operations, sold the cattle and other ranch equipment, and invested in stocks, bonds, or both. To

illustrate their point, they noted that the trustee for the Lynch Trust took the prudent investor path

by getting out of the cattle business and investing in the stock market, which allowed for income

distributions to the Lynch Trust beneficiaries. They opined that if Jim had taken the same path and

invested in the stock market, bonds, or both, there would have been sufficient profit for income

distributions.7

During closing arguments, Mac and Beau argued that based on the experts’ projections, the

“sum total of the total lost profits that could have been made to the White Trust was $7,800,000.”

They further argued that the White Trust suffered a loss or depreciation in value of $3,776,326

during Jim’s tenure as trustee, representing the investments Jim made in Ranch operations since

becoming trustee.

7
The experts added that ceasing ranching operations would have eliminated the need to maintain a holdback or “cash
deficit amount,” which was for Ranch operations; that would have allowed Jim to distribute the profits from the White
Trust’s investments to the beneficiaries. They indicated that the cash deficit amount was subject to being
“manipulated” to a point that there would never be sufficient funds in the account to make income distributions,
pointing out that debt from Ranch operations, such as from ranch equipment purchases, could be “front loaded” into
the account. They stated that shortly after becoming trustee, Jim borrowed from their father’s estate to continue the
ranching operations and later assigned the debt to the cash deficit account, which they believed was a factor in Jim’s
inability to make income distributions.

9
(2) Claim of self-dealing

Mac and Beau also alleged Jim breached his “duty to not make a profit” and his “duty of

loyalty,” also referred to as “self-dealing,” by paying himself and his family “excessive

compensation” to operate the Ranch at the expense of the income beneficiaries. Specifically, they

alleged Jim used White Trust assets to pay himself $5,000 a month as the Ranch general manager;

pay his wife $1,200 a month for her services as the Ranch bookkeeper, and provide her a vehicle,

vehicle insurance, and gas; pay Cuatro $4,500 a month for his services as operations manager, and

provide him a vehicle, vehicle insurance, and a residence on the Ranch where he and his family

lived, along with health insurance for him and his family, and further used Trust assets to provide

runway maintenance and a free hanger storage for his wife’s plane; and pay Clint $1,500 a month

to do chores on the Ranch.8 Mac and Beau also claimed Jim maintained his own herd of dairy cows

on the Ranch and paid for their feed and maintenance from trust funds. According to Mac and

Beau, while “the income beneficiaries of the White Trust received nothing, Jim and his family

received benefits valued at over $1,000,000.” Moreover, Jim’s children (along with Hester Ann’s

children) stood to receive the assets remaining in the trust upon its termination.9

At trial, Mac and Beau’s expert witnesses estimated that since Jim became trustee, he alone

received approximately $1.16 million in salary and benefits, and he, together with his family,

received a total of $2.6 million in compensation for their Ranch employment. However, both

experts expressly declined to provide an opinion regarding whether the compensation Jim and his

family received was unreasonable or excessive, explaining that they were retained only to address

8
At trial, Jim testified that at some point after becoming trustee, he increased some of these wages.
9
In their petition, Mac and Beau alleged they did not have any offspring who would be entitled to receive the trust
assets upon its termination. But at trial, they presented evidence that they had adopted a 59-year-old man sometime
after they filed their petition.

10
Jim’s failure to act as a prudent investor and his failure to act in the beneficiaries’ best interest. In

addition, they agreed Jim had a duty to disclose his employment arrangements to the trust

beneficiaries, which he admittedly failed to do. Mac and Beau also testified at trial that they

believed Jim violated his duty to disclose the contract to them. And although Mac initially testified

that he did not believe Jim received excessive compensation, he later testified that he believed

Jim’s salary was excessive without providing a basis for his opinion other than his belief that their

father had taken less compensation when he had served as the Ranch manager.

In closing arguments, Mac and Beau argued that Jim profited in the amount of $1,165,637,

based on his compensation as the Ranch general manager since becoming trustee.

(3) Remedies sought

Globally, Mac and Beau alleged Jim acted in bad faith in his actions as trustee, either

intentionally, with reckless indifference, and/or with gross negligence. They sought: (1)

“derivative” damages against Jim in his individual capacity to compensate the trust for damages

caused by Jim’s breaches, together with exemplary damages; (2) individual compensatory

damages to the beneficiaries against Jim in his individual capacity, together with exemplary

damages; (3) a disgorgement of any compensation that Jim and his family had received from the

trust; (4) a judicial modification of the White Trust to allow the trustee to liquidate the trust assets

and sell all or any part of the Ranch; and (5) Jim’s removal as trustee. They also sought attorney’s

fees and costs pursuant to the Texas Property Code § 114.064, to be paid by Jim individually, or in

the alternative, from the trust estate.10

10
Mac and Beau also alleged the statute of limitations was tolled, claiming Jim’s wrongdoing was “inherently
undiscoverable.” The jury found that Mac and Beau should have discovered Jim’s actions in 2016, which made their
lawsuit timely filed in 2018. Jim does not dispute that finding.

11
B. Jim’s defense

Jim maintained that all of his actions were in good faith, and he did not breach any fiduciary

duties. According to Jim, his actions were “fair and equitable to the Trust” and in accordance with

its terms. Jim raised several affirmative defenses, including waiver, estoppel, unclean hands, and

statute of limitations. He pointed to the exculpatory clause in the Brite Trust providing that the

trustee would not be liable for errors in judgment if actions were taken in good faith, and he further

relied upon the “Business Judgment Rule,” which he believed protected him from liability.11

Finally, he argued that a trust modification should be denied, as the purposes of the trust had not

been fulfilled and were not impossible to fulfill.

At trial, Jim acknowledged he had continued his employment agreement and those of his

family after he took over as the trustee in 2010, but he denied Mac and Beau’s claim that the

compensation was excessive. Jim called three witnesses on the subject.

Jim’s first witness, who had been in the ranching business in West Texas for over 23 years,

testified that an operations manager or foreman of a ranch in that area would be paid anywhere

between $50,000 to $70,000 a year, together with various benefits to include health insurance,

housing, paid utilities, a “[t]ruck, trailer, tools, and everything they needed to do the job on the

ranch.” He estimated a manager’s assistant would generally be paid between $40,000 and $45,000

a year with similar benefits.

Jim’s second witness, who owns and operates a similar cattle ranch nearby, testified that

she believed the salaries Jim paid himself and his family were reasonable for the area, if not a

11
“The business judgment rule in Texas generally protects corporate officers and directors who owe fiduciary duties
to the corporation from liability for acts that are within the honest exercise of their business judgment and discretion.”
Sneed v. Webre, 465 S.W.3d 169, 173 (Tex. 2015).

12
“little bit low.” She further opined that it is difficult to find employees willing to work on a remote

ranch in this area and that it is often best to hire family when possible.

Jim’s third witness, a board-certified attorney in estate planning and probate law with

extensive experience in trust administration, testified that based on his research—which included

speaking with other ranch managers in the area and the director of the ranch management program

at TCU—he believed Jim’s compensation package was reasonable for the area. He indicated that

for ranches in remote areas, it was customary to provide a general manager the type of benefits

Jim was receiving.12 He opined that it was prudent for Jim to hire his family to assist him, pointing

out that it would have been difficult to find someone to manage the Ranch given its remote location

and that it was generally beneficial to hire one’s own family in such a situation.

Jim’s witnesses agreed Jim was doing a good job managing the Ranch, as it was making a

profit despite having to pay off debts and despite years of drought in the area. Finally, Jim testified

that the White Trust was on the verge of being able to make distributions to the income

beneficiaries when Mac and Beau filed their lawsuit, but because of the cost of the litigation and

his attorney’s fees, which totaled approximately a million dollars, there were insufficient funds

available to do so.

C. Jury verdict

At the close of trial, over Jim’s objection, the trial court provided the following instruction

to the jury, labeled as Question One:

Did Defendant Jim White comply with his fiduciary duty to the Plaintiffs as
beneficiaries of Jane White Trust?

You are instructed that Defendant Jim White owed a fiduciary duty to the Plaintiffs,
as beneficiaries of the Jane White Trust as of April 3, 2010. To prove he complied

12
Mac and Beau’s own expert witness also testified that it was not unusual to provide benefits, such as housing,
utilities, and fuel, to employees of ranches in remote areas.

13
with his duty in connection with his transactions as trustee, Defendant Jim White
must show that, at the time of the transactions:

1. The transactions in question were fair and equitable to the Plaintiffs, as
beneficiaries of the Jane White Trust; and

2. Defendant Jim White made reasonable use of the confidence placed in him by
the settlor of the Jane White Trust; and

3. Defendant Jim White acted in good faith and in accordance with the purposes
of the Jane White Trust in connection with the transactions in question; and

4. Defendant Jim White placed the interests of the Plaintiffs, as beneficiaries of
the Jane White Trust, before his own and did not use the advantage of his
position to gain any benefit for himself at the expense of the Plaintiffs’ interests
in the Jane White Trust; and

5. Defendant Jim White fully and fairly disclosed to the Plaintiffs all material facts
known to Defendant Jim White concerning the transactions in question that
might affect the Plaintiffs’ rights as beneficiaries of the Jane White Trust.

The court instructed the jury that for purposes of this question, “good faith” meant an action

prompted by honesty of intention and a reasonable belief that the action was probably correct. The

Jury answered “no” to Question One.

Question Four in three parts, asked the jury:

What sum of money, if any, if paid now in cash, would fairly and reasonably
compensate the trust estate of the Jane White Trust for the damages, if any,
that were proximately caused by the conduct inquired about in Question 1?”

The jury answered as follows:

1. Any profit made by Defendant Jim White for his own benefit.
ANSWER: 0
2. Any loss or depreciation in value of the Jane White Trust estate.
ANSWER: $1,000,000.00
3. Any profit that would have accrued to the Jane White Trust estate.
ANSWER: 0

14
In Question 11, the jury was then instructed that if it answered “no” to Question One, it

had to determine whether Jim committed an “intentional or fraudulent breach of his fiduciary duty”

to Mac and Beau as beneficiaries of the White Trust. The jury answered “yes” to Question 11.

Although the jury was not asked to determine whether Mac and Beau, as trust beneficiaries,

suffered any actual damages from any such breach, the jury was asked “[w]hat sum of money, if

any . . . should be assessed against Defendant Jim White and awarded to Beau White and Mac

White as exemplary damages, if any, for the conduct found in response to Question 11.” The jury

responded with $1.5 million each.

In Questions Eight and Nine, the jury was asked whether Jim had violated or attempted to

violate the White Trust terms (without specifying what terms were at issue). Although the jury

answered “yes,” it found that this did not result in any “material financial loss” to the White Trust.

Finally, the jury found that $896,513 was a reasonable and necessary amount for Mac and

Beau’s attorneys’ legal services for the trial.13

D. Final Judgment Nunc Pro Tunc

The trial court entered a Final Judgment on August 8, 2023, followed by a Final Judgment

Nunc Pro Tunc on September 26, 2023, which awarded $1 million in actual damages “on behalf

of the trustee” of the White Trust against Jim individually, and exemplary damages and attorney’s

fees to Mac and Beau, individually, in the amounts found by the jury.14 It further awarded $896,513

in attorney’s fees to Mac and Beau, which the trial court found was a fair and equitable amount.

13
The jury also entered amounts for future fees to be awarded if the matter were appealed to this Court and if the
parties were to file a petition for review in the Texas Supreme Court.

As explained in more detail below, the parties appear to agree that the Final Judgment Nunc Pro Tunc served as a
14

modified or corrected judgment that supplanted the initial Final Judgment, and which governs this appeal.

15
In its Final Judgment Nunc Pro Tunc, the court ordered Jim removed as trustee “because

he committed intentional breaches of fiduciary duty” and enjoined him from taking any further

actions as trustee. The court determined that the “primary purpose” of the White Trust was to pay

income to the beneficiaries, and that due to circumstances unforeseen by the settlor, a modification

would “further the purposes of the [] White Trust.” The modification divided the White Trust into

four separate trusts for the benefit of each of Jane White’s children, labeled the “White Division

Trusts,” with each child to serve as trustee of his or her own trust. The court allocated to each trust

an undivided interest in the Ranch, but gave the individual trustees the right to partition and sell

any of the trust assets, including the ranchlands. The trial court further declared that it was

“retain[ing] continuing judicial supervision of the [] White Trust pursuant to Texas Trust Code,

Section 115.001(c) until such time as all aspects of this Judgment have been fully implemented.”15

E. Intervenors’ petition

Following entry of the original Final Judgment, but prior to the Final Judgment Nunc Pro

Tunc, three of Jim’s children (Eddie’s great-great-grandchildren)—Cuatro, Clint, and Marti—filed

a petition in intervention, alleging they had standing to intervene as contingent remainder

beneficiaries of the White Trust.16 They argued the trial court’s judgment was void because they

were necessary parties to the litigation and had not received statutory notice of the litigation as

they believed the Trust Code required. The trial court struck the petition in intervention on Mac

and Beau’s motion, but not before the Intervenors filed a motion for new trial and a notice of appeal

from the court’s judgment.

15
Trust Code § 115.001(c) provides: “The court may intervene in the administration of a trust to the extent that the
court’s jurisdiction is invoked by an interested person or as otherwise provided by law. A trust is not subject to
continuing judicial supervision unless the court orders continuing judicial supervision.” Tex. Prop. Code Ann.
§ 115.001(c).
16
Jim’s fourth child, Raphael White, did not join in the petition.

16
F. Jim’s motion for new trial and appeal

Jim also filed his own motion for new trial, in which he argued, among other things, that

the first question in the jury charge had improperly placed the burden on him to show he complied

with his fiduciary duties, and that the jury’s answer to this improper question infected the rest of

its findings as well as the trial court’s Final Judgment Nunc Pro Tunc. The trial court overruled the

motion, and this appeal followed.

G. The September 3, 2023 order

After the trial court issued its Final Judgment, Jim filed a motion for instruction seeking

guidance on how the White Trust’s finances were to be handled, given his removal as trustee, and

his inability to access funds to sustain the Ranch’s ongoing operations and immediate needs.17 On

September 3, 2023, at Mac and Beau’s request, and pursuant to its continuing judicial supervision

over the White Trust, the trial court entered an order appointing Susan Combs as “temporary

interim trustee” over the newly created Division Trusts. The order gave her power to, among other

things, collect all assets of the Division Trusts, including all interests in the Ranch; to liquidate the

cattle and pay debts of the Division Trusts owed to a bank in Fort Stockton; to invest and reinvest

all liquid assets of the Division Trusts; and to employ persons reasonably necessary to assist in

administering the estates of the Division Trusts. The September 3 Order gave Ms. Combs all the

“powers of a fee simple owner” in this role.

The September 3 Order granted Mac and Beau’s request for “other equitable relief,” which

included terminating Jim and his family’s employment at the Ranch and further ordered Jim and

17
In his motion, Jim explained that the White Trust’s primary income came from its cattle operations and hunting
leases on the Ranch, and to continue such operations, he needed access to funds to pay the Ranch employees and its
vendors. Jim explained that the First National Bank of Stockton had declared a default on a line of credit the Ranch
had been using for its operating costs, which was secured by 1,000 head of cattle and other Ranch assets, and there
was no other source of capital from which to continue Ranch operations. He therefore sought instructions from the
court on how to address the situation.

17
his family to cease residing at the Ranch. The trial court then severed these proceedings into a

separate cause number: 7856A.

Both Jim and the Intervenors filed an appeal from that order, which is addressed in our

companion opinion issued this same day in 08-23-00244-CV.

III. ISSUES ON APPEAL

Jim and the Intervenors raise several issues on appeal, including whether the Intervenors

were necessary parties to the lawsuit and whether they received proper notice of the lawsuit;

whether the trial court’s judgment was in accord with the jury’s findings; whether the trial court’s

judgment was unduly vague and unenforceable; whether there were errors in the jury charge;

whether there was sufficient evidence to support the jury’s various findings; whether the trial court

properly awarded exemplary damages to Mac and Beau; whether the attorney’s fee award was

proper; and whether the trial court had the authority to modify the White Trust.18 We focus on the

allegation of jury charge error, as we find it dispositive of the appeal.

18
Although Jim listed the issues somewhat differently in the “Issues Presented” section of his brief, his brief addresses
three global issues. Issue One is whether the final judgment contains “independent errors which are harmful and
voidable (if not void).” Included within Issue One is (1) whether the final judgment “improperly found facts that
should have been decided by the jury” and (2) whether the final judgment did not clearly state “for whom and against
it was rendered.” Issue Two is whether the jury’s answers support the trial court’s judgment. Included within Issue
Two are nine sub-issues: (1) whether the jury charge improperly placed the burden of proof on Jim to establish that
he complied with his fiduciary duties to Mac and Beau; (2) whether the trial court erred by removing Jim as trustee;
(3) whether the trial court erred in granting injunctive relief prohibiting Jim from taking certain actions; (4) whether
the trial court erred in awarding $1 million in damages to the trust; (5) whether the trial court’s award of attorney’s
fees was in error; (6) whether the trial court’s award of exemplary damages was in error; (7) whether the trial court
erred in modifying the trust by dividing into the four Division Trusts and by permitting the sale of the ranchlands; (8)
whether the trial court erred in entering a judgment to “settle all claims” with the Brite School; and (9) whether the
trial court erred in awarding costs to Jim. Issue Three is whether the trial court’s order is “void or voidable for the
additional reasons asserted by Intervenors.”
The Intervenors’ brief addresses six global issues. Issue One is whether the final judgment is void because
they were necessary parties to the litigation and not named as parties. Issue Two is whether the final judgment is void
because they did not receive statutory notice of the litigation. Issue Three is whether the trial court abused its discretion
in striking their petition in intervention. Issue Four is whether the trial court erred by modifying the Trust. Issue Five
is whether the final judgment is void for failing to provide an adequate legal description of the Brite Ranch. Issue Six
is whether the trial court did not follow the proper procedures for appointing a “successor trustee.”

18
IV. PRELIMINARY CONSIDERATION: JIM’S BRIEF

Before addressing the merits of the appeal, we address Mac and Beau’s request that we

“disregard” Jim’s appellate brief in its entirety due to what they perceive as multiple briefing

waivers.

First, they contend Jim is complaining about the trial court’s original Final Judgment, rather

than the Final Judgment Nunc Pro Tunc, which they contend is the operative judgment in the case.

And they argue that when a party fails to challenge the appropriate judgment, he waives his

complaint on appeal. Although we agree the Final Judgment Nunc Pro Tunc is the operative

judgment in this appeal, Jim’s brief does, in fact, address the Final Judgment Nunc Pro Tunc. We

find no confusion in Jim’s brief on this point.

Mac and Beau also contend Jim did not make an adequate prayer for relief in his brief as

required by Rule 38.1. See Tex. R. App. P. 38.1(j) (an appellant’s “brief must contain a short

conclusion that clearly states the nature of the relief sought”). But Jim’s brief asks “this Court to

vacate or reverse the [trial court’s] judgment and render judgment that Plaintiffs take nothing, to

set aside the removal of Jim as Trustee and the modifications to the Trust and injunctive relief or

alternatively modify and reduce the judgment, or in the further alternative grant a new trial.” His

brief therefore appears to comport with the requirements of Rule 38.1(j) in this respect.

Finally, Mac and Beau contend Jim’s brief is not “clear and concise” as required by

Rule 38.1, and at least one of Jim’s issues is multifarious, as he raises a complaint regarding

sufficiency of the evidence in the same issue as he raises a complaint regarding the jury charge

error. See Tex. R. App. P. 38.1(i) (an appellant’s “brief must contain a clear and concise argument

for the contentions made, with appropriate citations to authorities and to the record”). We recognize

that it is improper for an appellant to combine complaints based on separate legal theories in a

19
single issue and agree that Jim did so. See Quiroz v. Gray, 441 S.W.3d 588, 591–92 (Tex. App.—

El Paso 2014, no pet.). However, an appellate court has “the discretion to consider a multifarious

issue provided it can determine, with reasonable certainty, the alleged error about which the

complaint is made.” Id.; see also Martinez v. Martinez, 52 S.W.3d 429, 430–31 (Tex. App.—Fort

Worth 2001, pet. denied) (recognizing that although an appellate court is not required to address

multifarious issues, a court is to “liberally construe briefing rules in the interest of justice” and

therefore may address such issues when appropriate) (citing Shull v. United Parcel Serv., 4 S.W.3d

46, 51 (Tex. App.—San Antonio 1999, pet. denied)). Here, we find that Jim has adequately briefed

the issue pertaining to his jury-charge argument—despite combining it with his sufficiency

argument—such that we are able to reasonably determine the nature of this point of error and

address the issue in our opinion.

We therefore decline Mac and Beau’s request that we disregard Jim’s brief.

V. THE MISPLACED BURDEN OF PROOF IN THE JURY CHARGE

Turning to the merits, we focus on Jim’s claim that Question One in the jury charge

improperly placed the burden on him to establish that he complied with virtually all of his fiduciary

duties to Mac and Beau, when he only shouldered the burden to establish that he did not engage in

any self-dealing transactions that resulted in a profit to him at the expense of the trust beneficiaries.

We agree that Question One improperly shifted the burden.

A. Standard of review

An appellate court reviews jury-charge error for an abuse of discretion. See De Leon v.

Furr’s Supermarkets, Inc., 31 S.W.3d 297, 300 (Tex. App.—El Paso 2000, no pet.) (citing Texas

Dep’t of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990)). In determining whether a trial

court abused its discretion in giving a particular jury charge, we consider “the pleadings of the

20
parties, the evidence presented at trial, and the charge in its entirety.” Id. (citation omitted); see

also Island Recreational Dev. Corp. v. Republic of Texas Sav. Ass’n, 710 S.W.2d 551, 555

(Tex. 1986). However, a trial court has “no discretion to misstate the law”; therefore, we review

de novo whether a jury charge misstates the law on a controlling issue. Meyers v. 8007 Burnet

Holdings, LLC, 600 S.W.3d 412, 421 (Tex. App.—El Paso 2020, pet. denied) (citing St. Joseph

Hosp. v. Wolff, 94 S.W.3d 513, 525 (Tex. 2002)).

If an appellate court finds that the trial court erred in charging the jury, it may reverse the

court’s judgment only when the error is shown to be harmful. See Meyers, 600 S.W.3d at 421

(citing Tex. R. App. P. 44.1(a)(1);19 Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166

(Tex. 2002); Niemeyer v. Tana Oil & Gas Corp., 39 S.W.3d 380, 387 (Tex. App.—Austin 2001,

pet. denied)). In determining whether a jury charge error was harmful, we consider whether the

error, when “viewed in light of the totality of the circumstances, amounted to such a denial of the

rights of the complaining party as was reasonably calculated and probably did cause rendition of

an improper judgment.” De Leon, 31 S.W.3d at 300.

B. Applicable law: fiduciary duties, self-dealing, and burdens of proof

Although substantially related, a claim that a trustee has breached the duty of loyalty—also

referred to as self-dealing—differs from other claims of breach of fiduciary duty in terms of its

elements and who shoulders the burden of proof.

The elements of a breach of a fiduciary duty claim are: (1) a fiduciary relationship between

the plaintiff and defendant; (2) a breach by the defendant of his fiduciary duty to the plaintiff; and

(3) an injury to the plaintiff or benefit to the defendant as a result of the defendant’s breach.

19
Rule 44.1(a) provides, “[n]o judgment may be reversed on appeal on the ground that the trial court made an error
of law unless the court of appeals concludes that the error complained of: (1) probably caused the rendition of an
improper judgment; or (2) probably prevented the appellant from properly presenting the case to the court of appeals.”
Tex. R. App. P. 44.1(a).

21
Gilbreath v. Horan, 682 S.W.3d 454, 523 (Tex. App.—Houston [1st Dist.] 2023, pet. denied)

(citing First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214, 220 (Tex. 2017)

(“Generally, the elements of a claim for breach of fiduciary duty are (1) the existence of a fiduciary

duty, (2) breach of the duty, (3) causation, and (4) damages.”)). In general, to recover for a breach

of fiduciary duty, a plaintiff has the burden of proving each element. See, e.g., Gilbreath, 682

S.W.3d at 523 (recognizing that burden was on the plaintiff to establish that the defendant breached

his fiduciary duties to her); see also Wells Fargo Bank, N.A. v. Crocker, No. 13-07-00732-CV,

2009 WL 5135176, at *3 (Tex. App.—Corpus Christi Dec. 29, 2009, pet. denied) (mem. op.)

(recognizing same).

A claim of self-dealing is essentially a subset of a claim for breach of fiduciary duty, but

with the additional requirement that the fiduciary used the advantage of his position to gain a

benefit or profit at the expense of those to whom he owes a fiduciary duty. See Roels v. Valkenaar,

No. 03-19-00502-CV, 2020 WL 4930041, at *6 (Tex. App.—Austin Aug. 20, 2020, no pet.) (mem.

op.) (to establish “a claim for breach of fiduciary duty based on self-dealing, a plaintiff must

demonstrate that the fiduciary obtained a benefit for itself either at the expense of its principal or

without equally sharing the benefit with the principal”) (citing KCM Fin. LLC v. Bradshaw, 457

S.W.3d 70, 83 (Tex. 2015) (holding that “essence” of self-dealing is fiduciary’s misappropriating

for itself what “would have been a shared benefit” with principal)); see also Mims-Brown v. Brown,

428 S.W.3d 366, 374–75 (Tex. App.—Dallas 2014, no pet.) (recognizing that “[s]elf-dealing can

be generally defined as an occurrence in which the fiduciary uses the advantage of his position to

gain a benefit at the expense of those to whom he owes a fiduciary duty”). Thus, there can be no

finding of self-dealing in the absence of evidence that a fiduciary profited from his actions. See

Gillespie v. Hernden, 516 S.W.3d 541, 555 (Tex. App.—San Antonio 2016, pet. denied)

22
(concluding that plaintiff’s claim that attorney engaged in self-dealing was unsupported by the

record where the evidence conclusively proved that benefit to attorney was shared equally with

clients).

It is well-established that “when a plaintiff alleges self-dealing by the fiduciary as part of

a breach-of-fiduciary-duty claim, a presumption of unfairness automatically arises, which the

fiduciary bears the burden to rebut.” See Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied) (citing Houston v. Ludwick, No. 14–09–00600–CV, 2010

WL 4132215, at *7 (Tex. App.—Houston [14th Dist.] Oct. 21, 2010, pet. denied) (mem. op.);

Jackson Law Office, P.C. v. Chappell, 37 S.W.3d 15, 22 (Tex. App.—Tyler 2000, pet. denied)); see

also Stephens County Museum, Inc. v. Swenson, 517 S.W.2d 257, 261 (Tex. 1974) (where fiduciary

was accused of engaging in a transaction for his benefit, there was a “presumption of unfairness

and invalidity,” and the fiduciary was required to prove that the transaction was “fair and

reasonable”); Int’l Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567, 576 (Tex. 1963)

(recognizing that a corporate fiduciary has the burden to establish the “fairness” of his transactions

involving corporate property). Courts have explained that this burden requires the “fiduciary to

prove (a) that the questioned transaction was made in good faith, (b) for a fair consideration, and

S.W.3d at 22 (citing Stephens County Museum, Inc., 517 S.W.2d at 261; Holloway, 368 S.W.2d at

576). Thus, in cases of self-dealing, a jury charge properly places the burden on the defendant that

a transaction in which he made a profit was “fair and equitable” to plaintiff, that the defendant

acted in good faith and did not use the advantage of his position to gain a benefit at the plaintiff’s

expense, and that defendant “fully and fairly disclosed all important information” to the plaintiff

concerning the transaction. See Ludwick, 2010 WL 4132215, at *7.

23
C. Whether Jim preserved error at the jury charge conference

As explained above, Mac and Beau raised two broad categories of claims against Jim. First,

they contend Jim engaged in self-dealing by paying himself and his family excessive compensation

for their Ranch employment. Second, they contend Jim breached several other fiduciary duties,

primarily focusing on his failure to act as a prudent investor and claiming he did not act in their

best interest when he continued to invest in the cattle ranching business. In their petition, Mac and

Beau appear to acknowledge they shouldered the burden of proving their claims that Jim breached

his general fiduciary duties. But with respect to their claim of self-dealing, they assert the burden

was “reverse[d],” and Jim therefore had the burden to prove that the compensation he received

“was ‘fair’ to the income beneficiaries.”20

At the jury charge conference, however, Mac and Beau proposed submitting a single

question to the jury on the issue of whether Jim breached his fiduciary duties to them (which

became Question One in the jury charge) asking if Jim had established that he complied with his

fiduciary duties “in connection with his transactions as trustee,” without specifying which

transactions were at issue. In response, Jim acknowledged that Question One generally followed

Texas Pattern Jury Charge 235.10, which was to be given in a case in which a trustee is accused of

engaging in self-dealing, and placed the burden on the trustee to rebut the claim. See Pattern Jury

Charges of the State Bar of Texas, Texas Pattern Jury Charges: Family & Probate PJC 235.10

(2024) (placing the burden on a trustee accused of self-dealing to establish that his “transactions”

were fair, that they were made in good faith, that they were properly disclosed, and that he made

reasonable use of the confidence placed in him by the settlor and did not use his position to gain

20
In closing arguments, Mac and Beau expressly informed the jury that they were bringing two separate categories of
claims against Jim; one for self-dealing and the other for Jim’s general breaches of his fiduciary duty, again focusing
on his alleged breach of the prudent investor rule, as explained by their expert witnesses.

24
any benefit for himself at the expense of the beneficiaries). Jim acknowledged that Mac and Beau

alleged he had engaged in self-dealing with respect to the employment agreements, making

Question One appropriate with respect to those transactions. However, Jim pointed out that Mac

and Beau had also alleged that he breached his fiduciary duties in other respects, which did not

involve self-dealing—such as his duty to act as a prudent investor—and that Mac and Beau had

the burden of establishing those breaches. Jim also objected that Question One did not describe

which transactions could be considered self-dealing and which could not, and a “global

submission” to the jury placing the burden on Jim to establish that he complied with his fiduciary

duties in connection with all of his transactions without distinction would be “confusing to the

jury.”21

In addition, Jim argued that because self-dealing requires a finding that the trustee gained

a profit or other benefit, it was necessary to submit a “predicate” question asking the jury whether

the trustee derived a profit or benefit from his transactions before asking the jury whether the

trustee complied with his fiduciary duties with respect to the transaction.22 Jim did not, however,

submit a proposed predicate question to the trial court.

On appeal, Jim reiterates both arguments, contending: (1) Question One erroneously placed

the burden on him to rebut virtually all of Mac and Beau’s claims without regard to whether they

involved claims of self-dealing; and (2) the trial court was required to submit a predicate question

21
In making this argument, Jim referred to the comments to Pattern Jury Charge 235.10, suggesting that a jury charge
on self-dealing should include a description of exactly what transaction (or transactions) are “in question.” See Comm.
on Pattern Jury Charges of the State Bar of Texas, Texas Pattern Jury Charges: Family & Probate PJC 235.10 (2024).
22
In making this argument, Jim again referred to the comments to Pattern Jury Charge 235.10 suggesting that if there
is a dispute regarding whether a trustee made a profit from any of his transactions, a predicate question may be
submitted to the jury asking it to decide the issue, with the burden on the plaintiffs to establish that a profit was made.
See Comm. on Pattern Jury Charges of the State Bar of Texas, Texas Pattern Jury Charges: Family & Probate PJC
235.10 (2024). The comments further provide that if the jury answers the predicate question in the negative, the court
should not submit a self-dealing question to the jury. Id.

25
asking the jury whether it believed Jim garnered a profit from any of his transactions before

submitting Question One to the jury. We agree with Mac and Beau that Jim did not preserve error

with respect to his second argument, as he did not submit a proposed predicate question to the trial

court. But we find that he preserved error with respect to his objection to Question One’s improper

burden shifting.

As Mac and Beau point out, Rule 278 provides that in general, the failure to submit a

question, definition, or instruction to the jury “shall not be deemed a ground for reversal of the

judgment, unless its submission, in substantially correct wording, has been requested in writing

and tendered by the party complaining of the judgment[.]” Tex. R. Civ. P. 278. Thus, we agree that

Jim cannot argue on appeal about the trial court’s error in failing to give the jury a predicate

question on whether he profited from his alleged self-dealing transactions when he did not submit

a proposed predicate question to the trial court at the charge conference.23 See Critical Path Res.,

Inc. v. Huntsman Int’l, LLC, No. 09-17-00497-CV, 2020 WL 1291327, at *9 (Tex. App.—

Beaumont Mar. 19, 2020, no pet.) (mem. op.) (finding that defendant who was accused of self-

dealing did not preserve error on the issue of whether the jury charge should have included a

predicate question of whether he profited by his transactions where defendant did not submit a

predicate question in substantially correct form in the trial court); see also Sears, Roebuck & Co.

v. Abell, 157 S.W.3d 886, 891 (Tex. App.—El Paso 2005, pet. denied) (“If the [jury charge] error

is the omission of an instruction relied on by the requesting party, three steps are required by the

23
Jim also argued at the charge conference that the jury charge should include an instruction informing the jury that
the trust contained an exculpatory clause, which shielded Jim from liability for errors in judgment made in good faith.
However, Jim did not submit a proposed instruction to the trial court on that issue, and we therefore similarly conclude
that he waived his right to argue the trial court erred by failing to provide such an instruction in the jury charge. See
Mendell v. Scott, No. 01-20-00578-CV, 2023 WL 4712050, at *13 (Tex. App.—Houston [1st Dist.] July 25, 2023,
no pet.) (mem. op.) (recognizing that “an exculpatory clause is an affirmative defense,” and “[t]he failure to request a
jury instruction on an affirmative defense results in waiver unless the issue was conclusively established”).

26
Rules to preserve error: a proper instruction must be tendered in writing and requested prior to

submission; a specific objection must be made to the omission of the instruction; and the court

must make a ruling.”).

Jim did, however, preserve his complaint that Question One improperly shifted the burden

to him to rebut Mac and Beau’s claims of breach of fiduciary duty, even though he did not tender

a proposed question on that subject at the charge conference. On this issue, Jim is not focused on

the trial court’s failure to provide an instruction; instead, the focus is on whether the jury charge,

as given, was improper. Texas Rules of Civil Procedure 272 and 274 provide that to preserve a

jury-charge-error complaint for appellate review, a party need only make the trial court aware of

the complaint in a timely and plain manner and obtain a ruling from the trial court on the complaint.

See Thota v. Young, 366 S.W.3d 678, 689 (Tex. 2012) (recognizing that the procedural

requirements “for determining whether a party has preserved error in the jury charge are explained

by one basic test: whether the party made the trial court aware of the complaint, timely and plainly,

and obtained a ruling”); see also Tex. R. Civ. P. 274 (“A party objecting to a charge must point out

distinctly the objectionable matter and the grounds of the objection”); Tex. R. Civ. P. 272 (requiring

objection to jury charge be made in writing or on the record before the charge is read to the jury).

Jim made it clear during the charge conference that he was objecting to Question One

because it improperly placed the burden on him to establish that all of his transactions—not just

those involving Mac and Beau’s claim of self-dealing—complied with his fiduciary duties. We

find this objection both timely and sufficiently specific to satisfy the requirements of Rule 272 and

274.

27
D. Whether Question One improperly shifted the burden to Jim and probably
resulted in an improper verdict

We next consider whether Question One in the jury charge improperly shifted the burden

to Jim on the issue of whether he breached his fiduciary duties, and if so, whether it probably

resulted in an improper verdict.

Although a trust beneficiary generally has the burden of establishing that a trustee breached

his fiduciary duties, the burden is reversed when the beneficiary brings a claim that the trustee

engaged in a self-dealing transaction, as such alleged transactions are presumptively unfair to the

beneficiary. See Gilbreath, 682 S.W.3d at 523; Crocker, 2009 WL 5135176, at *3; Mecom, 401

S.W.3d at 114. Here, Mac and Beau brought one claim of self-dealing: that Jim gave himself and

his family “excessive compensation” for their employment at the Ranch. With respect to that

particular claim, the burden is on Jim to establish that he complied with his fiduciary duties in

employing and compensating himself and his family. In other words, the burden is on Jim to show

that his employment agreements were fair and reasonable, that they were entered into in good faith

and disclosed to the trust beneficiaries, and that he did not profit from the agreements at the

beneficiaries’ expense.

Question One, however, did not limit the jury to the self-dealing claim. Instead, as Jim

points out, it instructed the jury that Jim had the burden to establish that “he complied with his

duty in connection with his transactions as trustee,” without specifying what those transactions

were. While Mac and Beau alleged Jim engaged in other “transactions” in violation of his fiduciary

duties (such as taking a loan from their father to invest in the ranching operations and purchasing

over a million dollars in ranch equipment, which arguably violated Jim’s duty to act as a prudent

investor and to act in the beneficiaries’ best interest) those transactions did not involve self-dealing.

It was Mac and Beau’s burden to establish that those transactions violated Jim’s fiduciary duties

28
to them. Accordingly, we conclude that Question One improperly shifted the burden to Jim to

establish the propriety of virtually every transaction in which he had engaged during his tenure as

trustee.

In reaching this conclusion, we are mindful that, in general, broad-form jury questions are

to be given when feasible. See Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 390 (Tex. 2000)

(reiterating the language of Tex. R. Civ. P. 277 stating that “the court shall, whenever feasible,

submit the cause upon broad-form questions. The court shall submit such instructions and

definitions as shall be proper to enable the jury to render a verdict.”). However, as the Texas

Supreme Court has recognized, when a plaintiff raises more than one theory of liability, and the

jury is given a broad form jury charge asking it to determine the defendant’s liability without regard

to the plaintiff’s separate theories, reversible error may result if an appellate court later determines

that one theory was invalid or that one theory was not supported by legally sufficient evidence.

See Horton v. Kansas City S. Ry. Co., 692 S.W.3d 112, 139–145 (Tex. 2024). In the former

situation, the Texas Supreme Court has determined that harm is presumed, while in the latter

situation, it is not. Id. at 145–146. But in both situations, “reviewing courts should focus on the

ultimate question of whether ‘a review of the entire record provides [a] clear indication that the

contested charge issues probably caused the rendition of an improper judgment.’” Id. at 146

(quoting Thota, 366 S.W.3d at 687).

In Horton, the court held that the trial court erred in providing the jury with a “broad-form

negligence question” where the plaintiff alleged two theories of liability, one of which was

unsupported by the evidence. Id. at 146–47. However, the court held that the error did not cause

an improper verdict, as there was (1) “substantial evidence” in the record to support the correct

29
theory of liability, and (2) plaintiff’s counsel primarily focused on the correct theory of liability at

trial. Id.

Applying this harm standard to Question One, we reach a different result. Question One

would have been proper had it applied only to Mac and Beau’s claim of self-dealing. And we might

be persuaded that Jim was not harmed by the broad form nature of Question One if Mac and Beau’s

focus at trial had been primarily on their claim of self-dealing and there had been substantial

evidence to support that claim. But Mac and Beau neither focused on the self-dealing claim at trial,

nor did they present substantial evidence to support that claim.

To the contrary, their expert witnesses focused almost exclusively on the claim that Jim did

not act as a prudent investor when he continued to invest in the cattle business despite its failure

to make a sufficient profit to make income distributions. Moreover, Mac and Beau’s expert

witnesses expressly declined to opine on whether Jim had engaged in self-dealing by paying

himself and his family excessive compensation. And Mac and Beau did not present any evidence

to rebut Jim’s experts who testified that Jim’s compensation package was reasonable under the

circumstances.

We can be reasonably certain that the jury’s finding in response to Question One regarding

Jim violating his fiduciary duties was not based on Mac and Beau’s claim of self-dealing because

the jury expressly found that Jim did not profit from any of his transactions (in Question Four).

While a claim of self-dealing requires a finding that the trustee gained a benefit or profit from the

transaction, when assessing “the damages, if any, that were proximately caused by the conduct

inquired about in Question [One],” the jury expressly found that Jim did not make any profit “for

his own benefit.” The jury’s only finding of damages was based on its finding that there was a

“loss or depreciation in value of the [] White Trust estate.” As Mac and Beau argued at trial, this

30
loss stemmed from Jim’s decision to continue investing money in the ranching operations, which

they repeatedly characterized at trial as a violation of the prudent investor rule.

Because Question One improperly shifted the burden to Jim to establish that he complied

with his fiduciary duties to act as a prudent investor, we conclude that this jury-charge error

probably resulted in an improper verdict and Jim is therefore entitled to a new trial on Mac and

Beau’s claims that he breached his fiduciary duties to them. Accordingly, we sustain Jim’s Issue

Two with respect to his claim of jury-charge error.

E. The charge error’s impact on the trial court’s decision to modify the trust

With regard to the trial court’s decision to remove Jim as trustee and modify the White

Trust, we conclude that the error in the jury charge and the jury’s improper verdict on the issue of

whether Jim breached his fiduciary duties similarly requires a reversal and new trial. As a

preliminary matter, we note that although a party is entitled to a jury trial on a tort claim for breach

of fiduciary duty, there is no right to a jury trial on an equitable claim to remove a trustee or to

modify a trust. See Matter of Troy S. Poe Tr., 673 S.W.3d 395, 412, n.12, 414–15 (Tex. App.—El

Paso 2023, pet. denied, No. 23-0729, 2024 WL 3836556 (Tex. Aug. 16, 2024)); see also Hill v.

Shamoun & Norman, LLP, 544 S.W.3d 724, 741 (Tex. 2018) (recognizing that, “[a]s a general

rule, the trial court, not the jury, determines the ‘expediency, necessity, or propriety of equitable

relief’”) (citing State v. Texas Pet Foods, Inc., 591 S.W.2d 800, 803 (Tex. 1979)). But Mac and

Beau did not request a separate bench trial on their equitable claims for Jim’s removal or for the

modification of the White Trust. Instead, they requested and received a jury trial for all of their

claims. And although the jury was not asked to resolve Mac and Beau’s equitable claims to remove

Jim as trustee and to modify the White Trust, those claims were based on the same evidence and

arguments they presented to the jury to support their tort claim, i.e., that Jim breached his fiduciary

31
duties to them, and more particularly, his duty to generate income for their benefit. In its Final

Judgment Nunc Pro Tunc, the court specifically stated that its judgment was based not only on the

evidence admitted at the jury trial, but on “the jury’s verdict in this case” and the arguments of

counsel. Accordingly, because we have already concluded that the jury’s verdict that Jim breached

his fiduciary duties cannot stand, we similarly conclude that the trial court’s decision to grant Mac

and Beau’s equitable claims—which was based on that verdict—cannot stand.

We therefore conclude that Jim is entitled to a new trial on Mac and Beau’s equitable claims

to remove him as trustee and modify the trust. Accordingly, we sustain Jim’s Issue Two with

respect to his claim that the trial court erred in granting Mac and Beau’s equitable claims.24

VI. THE INTERVENORS’ APPEAL

A. Mac and Beau’s motion to dismiss the Intervenors’ appeal

Finally, we turn to the Intervenors’ appeal and Mac and Beau’s motion to dismiss the same.

In their motion, Mac and Beau maintain that the Intervenors cannot be considered proper parties

to the final judgment or to the appeal because they failed to timely petition to intervene in the trial

court. We disagree.

The question of whether an intervenor can be considered a party to a final judgment, and

therefore a party to an appeal, depends on whether the intervenor filed his petition in intervention

before the trial court issued its judgment. In general, a party who intervenes before a trial court

signs its final judgment becomes a party to the final judgment, and therefore a party to the appeal,

even if the trial court later strikes the petition. See Kenneth D. Eichner, P.C. v. Dominguez, 623

S.W.3d 358, 362 (Tex. 2021) (recognizing that a “person who intervenes before the trial court signs

24
Given our resolution of the dispositive issues set forth in Jim’s Issue Two, we do not reach the other complaints he
raises in that issue. Nor do we need to address the complaint he makes in Issue One regarding the language used in
the Final Judgment Nunc Pro Tunc. See Tex. R. App. P. 47.1 (regarding addressing issues necessary to the disposition
of the appeal and handing down an opinion as brief as practicable).

32
a final judgment becomes a party to that judgment”) (emphasis in original); see also Texas Mut.

Ins. Co. v. Ledbetter, 251 S.W.3d 31, 36 (Tex. 2008) (intervention before final judgment is timely).

But if a person attempts to intervene in a case after the trial court has signed a final judgment, the

party is not bound by the judgment and cannot be considered a “party” to the judgment or the

appeal unless the trial court sets aside that judgment. See Eichner, 623 S.W.3d at 362 (citing State

v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015)).

Mac and Beau argue that because the Intervenors filed their petition after the trial court

issued its original Final Judgment, it was too late for them to be parties to the judgment or the

appeal. The Intervenors counter that because they filed their petition prior the Final Judgment Nunc

Pro Tunc, they are parties. We agree with the Intervenors on this point.

In general, there can be only one final judgment in a case.25 Tex. R. Civ. P. 301 (“Only one

final judgment shall be rendered in any cause except where it is otherwise specially provided by

law.”). Because there may only be one final judgment, a corrected or modified judgment

“supersedes the original judgment and becomes a new judgment.” In re Mittelsted, 661 S.W.3d

639, 656 (Tex. App.—Houston [14th Dist.] 2023, orig. proceeding); see also Abercia v. Kingvision

Pay-Per-View, Ltd., 217 S.W.3d 688, 706 (Tex. App.—El Paso 2007, pet. denied) (recognizing that

“[e]ven when a subsequent judgment differs from the original judgment only by the signature date,

the subsequent judgment vacates the former judgment”); Haase v. Deutsche Bank Nat’l Tr. Co.,

No. 01-20-00854-CV, 2023 WL 5535663, at *9 (Tex. App.—Houston [1st Dist.] Aug. 29, 2023,

pet. denied) (mem. op.) (citing numerous cases for the proposition that even a nunc pro tunc

25
As we have previously recognized, there are exceptions to the one-final-judgment rule in probate and receivership
cases, but we are unaware of any such exceptions in trust proceedings. Urbanovsky v. Urbanovsky, No. 08-21-00182-
CV, 2022 WL 12403922, at *2 (Tex. App.—El Paso Oct. 21, 2022, no pet.).

33
judgment supersedes the court’s original judgment and is considered the judgment from which the

parties must appeal).

Accordingly, when a trial court modifies its judgment while it still has plenary power to do

so, as the court did here, the modified judgment becomes the operative judgment from which an

appeal may be taken. See Check v. Mitchell, 758 S.W.2d 755, 756 (Tex. 1988) (recognizing that

“any change, whether or not material or substantial, made in a judgment while the trial court retains

plenary power, operates to delay the commencement of the appellate timetable until the date the

modified, corrected or reformed judgment is signed”); Lane Bank Equip. Co. v. Smith S. Equip.,

Inc., 10 S.W.3d 308, 310 (Tex. 2000) (citing Tex. R. Civ. P. 329b(d) in explaining that trial court

has plenary power to change its judgment during period in which it retains jurisdiction over the

case). Because the trial court’s Final Judgment Nunc Pro Tunc superseded the original Final

Judgment as the operative judgment, the petition in intervention was timely filed.

While the trial court still had plenary power of the case, on Mac and Beau’s motion, the

trial court struck the petition in intervention, as it had the authority to do. See Brown v. Freed,

No. 03-21-00556-CV, 2023 WL 9007331, at *7 (Tex. App.—Austin Dec. 29, 2023, pet. denied)

(mem. op.) (where record demonstrated that trial court retained plenary jurisdiction over case due

to the appellant’s filing of a motion for new trial, trial court had the power to strike a petition in

intervention after the entry of final judgment). As the Intervenors were parties at the time, the trial

court’s order striking their petition was effectively merged into the Final Judgment Nunc Pro

Tunc—such a merger was necessary to render the Final Judgment Nunc Pro Tunc a final,

appealable judgment disposing of all claims and parties. See Neely v. Hubbard, No. 01-02-00160-

CV, 2004 WL 35809, at *3 (Tex. App.—Houston [1st Dist.] Jan. 8, 2004, no pet.) (mem. op.)

(though trial court’s judgment did not properly dispose of intervenors’ claims pending at the time

34
and was therefore not a final judgment, its subsequent order properly striking the intervenors’

petition was sufficient to render its earlier judgment a final judgment).

Accordingly, we conclude that the Intervenors were parties to the final judgment and are

therefore proper parties to the appeal. We deny Mac and Beau’s motion to dismiss the Intervenors’

appeal on the ground that they failed to timely petition to intervene in the trial court.

B. Whether the Intervenors’ appeal is moot

While the Intervenors were parties to the final judgment, we conclude that their appeal is

moot given our decision to reverse and remand for a new trial.

An intervenor’s appeal is limited to the question of whether the trial court abused its

discretion in striking his petition. See Smith v. City of Garland, 523 S.W.3d 234, 239 (Tex. App.—

Dallas 2017, no pet.) (citing H. Tebbs, Inc. v. Silver Eagle Distribs., Inc., 797 S.W.2d 80, 88–89

(Tex. App.—Austin 1990, no writ)). A trial court’s decision to strike a petition in intervention

depends upon: (1) whether the intervenor has a justiciable interest in the underlying dispute, i.e.,

whether the intervenor could have brought the lawsuit or a portion thereof in his own name “or

could have defeated recovery or some part of it”; (2) whether “the intervention would not

complicate the case by excessively multiplying of the issues”; and (3) whether “the intervention is

almost essential to effectively protect the intervenor’s interest.” Williamson v. Howard, 554 S.W.3d

59, 66 (Tex. App.—El Paso 2018, no pet.) (citing Guar. Fed. Sav. Bank v. Horseshoe Operating

Co., 793 S.W.2d 652, 657 (Tex. 1990)). The Intervenors argue that all three factors should lead us

to urge us to conclude that the trial court abused its discretion in striking their petition.

Regardless of the factors pertaining to the Intervenors’ position in the litigation that has

already taken place, we will not speculate as to what interest they may have or how their presence

will be evaluated in future litigation on remand. See generally Patterson v. Planned Parenthood of

35
Houston & Se. Texas, Inc., 971 S.W.2d 439, 443 (Tex. 1998) (“Refraining from issuing advisory

opinions and waiting for cases’ timely factual development is . . . essential to the proper

development of the state’s jurisprudence.”). The parties may choose to amend their pleadings on

remand, or decide not to go forward with a trial at all for that matter.

Accordingly, we dismiss the Intervenors’ appeal as moot in light of our decision to remand

for a new trial, and we do not address the merits of the issues the Intervenors raised in their brief

at this time.26

VII. CONCLUSION

Because the jury charge error probably resulted in an improper verdict on the issue of

whether Jim breached his fiduciary duties to Mac and Beau and the improper granting of equitable

relief, we reverse the trial court’s final judgment and remand this matter to the trial court to hold a

new trial on Mac and Beau’s legal claims as well as a new trial on their equitable claims.27

LISA J. SOTO, Justice

December 19, 2024

Before Alley, C.J., Palafox and Soto, JJ.

26
We similarly do not reach Jim’s Issue Three regarding whether the trial court’s order is “void or voidable for the
additional reasons asserted by Intervenors.”
27
All pending motions not specifically addressed in this opinion are denied.

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