Avary v. Bank of America, 72 S.W.3d 779 (Tex. App.—Dallas 2002, pet. denied).
Decedent died as the result of a tractor accident triggering the
filing of wrongful death and survival claims. Independent Executor,
Guardian of the estates of Decedent’s minor children, and Defendants
participated in a court-order mediation which resulted in a
court-approved settlement. Guardian contended that Defendants made a
settlement offer to Independent Executor which Independent Executor
improperly rejected. Later, Independent Executor accepted a lower offer.
Guardian claims Independent Executor’s rejection of the original offer
was a breach of Independent Executor’s fiduciary duties. The lower court
granted Independent Executor’s request for a summary judgment. Guardian
appealed.
The appellate court reversed. The court held that Guardian had presented
more than a scintilla of evidence to support the allegation that
Independent Executor breached its fiduciary duties by failing to
disclose material facts affecting the rights of the estate
beneficiaries. Accordingly, summary judgment was improper.
Moral: An executor defending a breach of fiduciary duty claim brought by
an estate beneficiary will have a difficult time obtaining a sustainable
summary judgment.