August 12, 2022

Volume XII, Number 224

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Court Reversed Summary Judgment Against Trustee Where Beneficiary’s Affidavit Evidence Was Conclusory

In McEndree v. Volke, a beneficiary sued a trustee, her former step father, for breaching fiduciary duties. No. 11-19-00351-CV, 2021 Tex. App. LEXIS 7856 (Tex. App.—Eastland September 23, 2021, no pet. history). The trust was to hold Social Security Administration benefits. Though the trust was created in 1997, the beneficiary was not aware of it until 2016 because the trustee never told her about it, never made a distribution, and never provided any accounting information. The beneficiary filed a traditional motion for summary judgment based on deemed admissions and on the affidavit. The trial court granted the motion, and the trustee appealed. The court of appeals reversed, holding that the beneficiary did not meet her summary judgment burden of proof. Regarding the affidavit, the court stated:

In his affidavit, Volke stated that he created the Trust “primarily to administer [the Social Security] benefits” and, after the Trust’s formation, he “forwarded every single survivor benefits check to [Appellant] to deposit in the Trust account on [Appellee’s] behalf.” Volke further stated that “[t]here is no doubt” that Appellant: (1) “received all these survivor benefits checks commencing in June 1998 until 2011,” (2) “had actual, subjective awareness that the survivor benefits checks needed to be deposited in the Trust for [Appellee’s] benefit,” and (3) “knew objectively that failure to deposit those survivor benefits checks into the Trust would pose an extreme degree of risk of financial harm to [Appellee].” We conclude that Volke’s, and necessarily Appellee’s, three assertions are conclusory.

Id. The court held that simply stating that the checks were “forwarded” is not sufficient to be entitled to a presumption of receipt due to mailing. Further, “As to the second and third assertions recited in Volke’s affidavit, in the absence of any facts in his affidavit to support the conclusion that Appellant received the checks as claimed, there can be no support for the conclusions that Appellant had any awareness, whether subjective or objective, of his responsibility to deposit such checks in the Trust account.” Id. The court then reviewed the deemed admissions and held that they were not sufficient to carry the burden either. The court reversed and remanded for further proceedings.

© 2022 Winstead PC.National Law Review, Volume XII, Number 45
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About this Author

David Johnson Financial Institution lLtigation Winstead Law Firm Fort Worth Texas
Managing Shareholder - Fort Worth

David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. 

David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class...

817.420.8223
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