PJC Business

PJC 115.16

D AMAGES

PJC 115.16 Question on Profit Disgorgement—Amount of Profit QUESTION ______ What was the amount of Don Davis ’s profit in [ describe the transaction in question, e.g., Don Davis’s leasing of mineral rights to himself ]? Answer in dollars and cents, if any. Answer: _______________ COMMENT When to use. Profit disgorgement does not present a jury question. If the amount of profit is disputed, however, PJC 115.16 may be used. See PJC 115.15. Amount of profit. A fiduciary cannot use his position to gain any benefit for himself at the expense of his principal. Schiller v. Elick , 240 S.W.2d 997, 999 (Tex. 1951); Fitz-Gerald v. Hull , 237 S.W.2d 256, 264–65 (Tex. 1951); Slay v. Burnett Trust , 187 S.W.2d 377, 388–89 (Tex. 1945); MacDonald v. Follett , 180 S.W.2d 334, 338 (Tex. 1944). A fiduciary must account for, and yield to the beneficiary, any profit that he makes as a result of a breach of his fiduciary duty. International Bankers Life Insur ance Co. v. Holloway , 368 S.W.2d 567, 576–77 (Tex. 1963); Restatement (Third) of Agency §§ 8.01 cmt. d(1), 8.02 (2006).

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