




 
 


 

 
NUMBER 13-07-00732-CV


COURT OF APPEALS


THIRTEENTH DISTRICT OF TEXAS


CORPUS CHRISTI - EDINBURG

 

WELLS FARGO BANK, N.A., IN ITS CORPORATE
CAPACITY AND AS INDEPENDENT EXECUTOR OF 
THE ESTATE OF JOHN CROCKER, DECEASED,			Appellant,

v.


SUSAN CROCKER AND JEANNE CROCKER,			Appellees.


On appeal from the County Court at Law No. 2 

of Victoria County, Texas.

 

MEMORANDUM OPINION

 
Before Chief Justice Valdez and Justices Rodriguez and Garza 

Memorandum Opinion by Justice Rodriguez


 This is a breach of fiduciary duty case.  A jury found for appellees, Susan Crocker
and Jeanne Crocker, (1) and against appellant, Wells Fargo Bank, N.A., (Wells Fargo) in its
corporate capacity and as independent executor of the estate of Susan and Jeanne's
deceased father, John Crocker.  The trial court entered judgment against Wells Fargo and
jointly awarded Susan and Jeanne $230,000 in actual damages and $30 million in
exemplary damages.  By five issues, Wells Fargo contends that:  (1) there is no evidence
of breach of duty (negligent or fiduciary) or causation of injury; (2) there is no evidence of
malice to support the punitive damage award; (3) there is no evidence of forgery which is
needed in this case to overcome the statutory cap on punitive damages; (4) the trial court
erred in allowing a post-trial pleading amendment that increased the punitive damage plea
by $27,500,000; and (5) the punitive damages award violates the due process clause.  We
reverse and render.
I.  Background
	Jeanne and Susan are John's daughters by his first wife, whom he divorced.  In
1995, John married Launa White. (2)  Before their marriage, John and Launa executed a
premarital agreement, which contained the following provision:
	Notwithstanding the foregoing, the parties agree that all bank accounts held
in the names of both [John and Launa] on the date of marriage shall, after 
their marriage, be considered community property and all bank accounts
opened after the date of marriage in the names of both [John and Launa]
shall likewise be considered community property.  The parties agree that all
bank accounts held in the name of both [John and Launa] shall be held in
such a manner as to provide the right of survivorship to the remaining party
upon the death of the other.

	On April 28, 2000, John spoke with Winston McKnight, a trust administrator at Wells
Fargo, (3) about opening two new accounts.  John also met with Wells Fargo employee J.P.
Green.  One of the new accounts was to be a separate account in John's name only which
would take its funds from John's separate property. (4)  McKnight testified that the second
account--the disputed account in this case--was to be a joint account with Launa.  The
joint account took its funds from existing accounts that John and Launa held as joint
tenants with rights of survivorship (ROS).
	According to McKnight, when he opened the disputed account for John, he and
John "never discussed [ROS]."  On the day the disputed account was opened McKnight
wrote "+ Launa joint" on a copy of the purported agreement.  At trial, McKnight agreed that
he wrote "+ Launa joint" without John knowing about it or telling him to do so. (5)  McKnight
also testified that he wrote "+ Launa joint" on a photocopy of the separate property
agreement for his working files to remind him that there were two accounts and to avoid
confusion; in an effort to distinguish the new joint account from the new separate account. 
This agreement did not expressly provide for ROS.  In addition, while McKnight first
testified that no original agreement relating to the disputed account could be found in Wells
Fargo's file, after his memory was refreshed through Green's deposition testimony,
McKnight testified that he had, in fact, left the agreement for the disputed account with
John and that it apparently was never returned.
	By a will dated April 26, 2000, John made a number of specific bequests, leaving, 
for example, a life estate in their home to Launa and a life estate in his ranch to Susan and
Jeanne.  By the residuary clause, John left "all the rest, residue and remainder of [his]
estate, separate or community, of every kind and character, real, personal and mixed, unto
[his] daughters."  The will named Wells Fargo as independent executor of the estate,
provided that the executor had all the powers given to a trustee by the Texas Trust Code
and by law, and specifically directed the executor to pay out of his residuary estate all "just
debts and claims" against his estate.
	John died on February 22, 2001.  Following his death, a dispute arose about the
joint account that John had opened a year earlier.  Launa contacted Wells Fargo when she
found a $334,000 discrepancy in one of the joint accounts with ROS.  Wells Fargo
determined that the $334,000 had been transferred at John's request from that particular
joint account into the disputed joint account that did not have ROS.  Launa's attorney
contacted Wells Fargo asserting that Launa was entitled to the funds in the disputed
account.
	On February 28, 2001, Wells Fargo filed an application to probate John's will and
on March 2, 2001, was appointed sole independent executor for the estate.  On April 26,
2001, in accordance with advice from its attorney, Munson Smith, that Launa was legally
entitled to the funds, Wells Fargo distributed approximately $460,000 to Launa, which was
the total amount in the disputed account at that time.
	On May 4, 2001, Wells Fargo and Smith met with Susan, Jeanne, their attorneys,
and several of John's grandchildren.  At that meeting, Wells Fargo and Smith briefly
discussed, for the first time with the others, the decision to distribute the funds from the
disputed account to Launa.
	Susan and Jeanne sued Wells Fargo for negligence and breach of fiduciary duty
alleging that Wells Fargo failed to disclose to them, as residual beneficiaries under their
father's will, the nature of, or the problems with, documentation on the disputed account
before the $460,000 in the account was paid to Launa as John's surviving wife. (6)  Wells
Fargo generally denied the claims and specifically pleaded that John's will gave it broad
powers as independent executor, including the power to settle disputed claims, if
reasonable.  Throughout the trial, Wells Fargo asserted that Launa had a valid claim
against the estate for the funds at issue and that it properly paid those funds to her, while
the Crocker sisters argued that Launa's claim failed.
	A jury found that Wells Fargo:  (1) negligently distributed funds from the disputed
account to Launa, proximately causing injury to Susan and Jeanne, and resulting in actual
damages in the amount of $230,000; (2) breached its fiduciary duties to Susan and
Jeanne, proximately causing injury, and resulting in actual damages in the amount of
$230,000; (3) acted with malice; and (4) committed forgery with the intent to defraud or
harm appellees.  After resolving liability issues and determining the amount of actual
damages, the jury assessed $30 million in punitive damages against Wells Fargo.  The trial
court entered judgment on the jury's verdict of breach of fiduciary duty and awarded a joint
actual-damage award of $230,000 and a punitive-damage award of $30 million against
Wells Fargo.  This appeal ensued.
II.  Liability
	By its first issue, Wells Fargo contends that Susan and Jeanne are not entitled to
any actual damages because there is no evidence of a breach of any duty owed them
under either theory of recovery--negligence or breach of fiduciary duty.  Wells Fargo also
argues that there is no evidence that its actions caused injury to Susan and Jeanne.
A.  Standard of Review	We may sustain a no-evidence or legal sufficiency challenge only when (1) the
record discloses a complete absence of evidence of a vital fact; (2) the fact-finder is barred
by rules of law or of evidence from giving weight to the only evidence offered to prove a
vital fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or
(4) the evidence establishes conclusively the opposite of a vital fact.  King Ranch, Inc. v.
Chapman, 118 S.W.3d 742, 751 (Tex. 2003).  In determining whether there is legally
sufficient evidence to support the finding under review, we must consider evidence
favorable to the finding if a reasonable juror could and disregard evidence contrary to the
finding unless a reasonable juror could not.  City of Keller v. Wilson, 168 S.W.3d 802, 807,
827 (Tex. 2005).  In the context of a jury trial, the sufficiency of the evidence is reviewed
in light of the charge submitted if no objection is made to the charge.  Romero v. KPH
Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges,
52 S.W.3d 711, 715 (Tex. 2001); see Minn. Life Ins. Co. v. Vasquez, 192 S.W.3d 774, 778
(Tex. 2006) (reviewing the insurer's legal sufficiency challenge according to the charge as
given) (citing Sw. Bell Tel. Co. v. Garza, 164 S.W.3d 607, 618-19 (Tex. 2004) ("In
assessing the evidence, we assume that the portions of the charge just quoted, because
they were given without objection, correctly state the law.")).
B.  Breach of Fiduciary Duty
1.  Applicable Law
	"The elements of a breach of 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."  Lundy v. Masson, 260 S.W.3d 482, 501 (Tex. App. Houston [14th
Dist.] 2008, pet. denied).  To recover for a breach of fiduciary duty, a plaintiff has the
burden of proving each element.  See, e.g., Avary v. Bank of Am., N.A., 72 S.W.3d 779,
792 (Tex. App.-Dallas 2002, pet. denied).
	An executor owes fiduciary duties to the beneficiaries of the estate--the same
duties applicable to trustees.  Lesikar v. Rappeport, 33 S.W.3d 282, 296 (Tex.
App.-Texarkana 2000, pet. denied) (citing Humane Soc'y of Austin & Travis County v.
Austin Nat'l Bank, 531 S.W.2d 574, 571 (Tex. 1975); Ertel v. O'Brien, 852 S.W.2d 17, 20
(Tex. App.-Waco 1993, writ denied)).  As independent executor of the estate, Wells Fargo
had a fiduciary relationship with Susan and Jeanne and, therefore, owed them, among
other things, "'a fiduciary duty of full disclosure of all material facts known to [it] that might
affect [the beneficiaries'] rights.'"  Avary, 72 S.W.3d at 792 (quoting Montgomery v.
Kennedy, 669 S.W.2d 309, 313 (Tex. 1984) (holding that trustees of trust and executors
of estate had fiduciary duty of full disclosure to beneficiary)).
2.  Breach	By its first issue, Wells Fargo argues that it did not breach any fiduciary duty owed
to Susan and Jeanne because it complied with its duty to pay the right person by
marshaling the assets of the estate, examining the claims against the estate, engaging
legal counsel to analyze the claims, and paying the party that was entitled to receive the
funds.  However, the trial court did not instruct the jury on a fiduciary's duty to pay the right
person.  Rather, the trial court instructed the jury, without objection, on the following
fiduciary duties Wells Fargo owed to all beneficiaries of John's estate:
		To act with the utmost good faith and to exercise the most scrupulous
honesty toward the beneficiaries;

		To place the interests of the beneficiaries before its own and to not
use the advantage of its position to gain any benefit for itself at the
expense of the beneficiaries and to not place itself in a position where
its self interest might conflict with its obligations as a fiduciary;
 
		To fully and fairly disclose all important information to the
beneficiaries concerning their interests in the Estate; or
 
		To act impartially by not showing favoritism between or among the
beneficiaries.
Therefore, Wells Fargo's conduct is measured against the preceding duties as identified
in the jury charge.  See Romero, 166 S.W.3d at 221 (Tex. 2005).
	Smith testified that Wells Fargo did not tell the Crocker daughters about the
disputed account before it paid Launa so as to "facilitate our purpose to go ahead and
make that settlement if you want to call it that of the legal rights with the parties,
irrespective of the claims by the parties."  It was Smith's opinion that Launa "was legally
entitled to the funds in that account and that any litigation with regard to that would result
in additional expense to the estate."  In addition, when the Crocker sisters' counsel
contacted Smith after the May 2001 meeting, Smith informed him that "in our opinion it was
a joint account subject to the right of a survivorship provided by the prenup[tual]
agreement."
	The evidence establishes that Susan and Jeanne did not learn of the disputed
account until the May 2001 meeting.  Jeanne testified that when the meeting began, Smith
told them there was a joint account, that the money in that account had been given to
Launa, and that it was a "done-deal type thing."  In addition, the evidence reveals that at
the time of the meeting Wells Fargo knew but did not tell the Crocker sisters the following:
	Wells Fargo did not have an original signed agency agreement for the disputed
account;

	Wells Fargo had a photocopy of an agreement upon which McKnight had written "+
Launa joint" after John's name;
 
	the photocopy of the disputed account agreement appeared to be a photocopy of
the separate account agreement; and
 
	nothing in the photocopy of the purported joint-account agency agreement provided
for ROS.
	Although Susan and Jeanne requested a copy of the disputed account agreement
when they learned about it at the May 2001 meeting, Wells Fargo did not provide Susan
and Jeanne with copies of any documents related to the disputed account until January or
February 2002.  Wells Fargo also acknowledged at trial that it had made a mistake when
it failed to followup and get the original agency agreement for the disputed account from
John.  Wells Fargo chose not to disclose this mistake to Susan and Jeanne.
	Considering evidence favorable to the finding if a reasonable juror could,
disregarding evidence contrary to the finding unless a reasonable juror could not, see City
of Keller, 168 S.W.3d at 807, 827, and reviewing the evidence in light of the charge
instructions regarding fiduciary duties owed, see Romero, 166 S.W.3d at 221, we conclude
that the evidence offered to prove that Wells Fargo breached its fiduciary duty to Susan
and Jeanne "to fully and fairly disclose all important information . . . concerning their
interests in the [e]state" is more than a mere scintilla.  See King Ranch, 118 S.W.3d at
751.  Thus, the evidence is legally sufficient to establish Wells Fargo's breach.
	Nonetheless, Wells Fargo argues that there is no evidence of breach because
Susan and Jeanne offered no expert testimony on this element.  However, expert
testimony is only necessary when the subject lies outside the realm of what a layperson
would understand.  Mack Trucks, Inc. v. Tamez, 206 S.W.3d 572, 583 (Tex. 2006); Roark
v. Allen, 633 S.W.2d 804, 809 (Tex. 1982).  Disclosing all important information that is
known to the executor and that concerns a beneficiary's interest in the estate is part of the
fiduciary duty owed to beneficiaries by an executor.  See Avary, 72 S.W.3d at 792.  We
cannot conclude that expert testimony is necessary to establish a breach of this simple and
straightforward duty.  The disclosure of details concerning the Crocker sisters' interest in
their father's estate, including the $230,000 from the disputed account, is not outside the
common experience and understanding of the average layman.  An expert was not
required to testify that Wells Fargo, having the fiduciary duty to disclose material facts,
should have disclosed information to the beneficiaries concerning the disputed account. 
We overrule Wells Fargo's first issue to the extent it challenges the breach element.
3.  Causation of Injury	By its first issue, Wells Fargo also challenges the legal sufficiency of the evidence
to establish that the breach caused an injury. (7) See Alexander v. Turtur & Assocs., Inc.,
146 S.W.3d 113, 119 (Tex. 2004) ("Breach of the standard of care and causation are
separate inquiries . . . and an abundance of evidence as to one cannot substitute for a
deficiency of evidence as to the other.").  Wells Fargo contends that Susan and Jeanne
failed to carry their burden of proving causation because they failed to show that Wells
Fargo's actions or inactions caused any cognizable injury.  It asserts that the Crocker
sisters are ignoring the effect of Launa's claim to the funds.  In response, Susan and
Jeanne contend that Wells Fargo's argument only assumes that the money belonged to
Launa.  They urge this is not the case and assert that, but for the Wells Fargo's non-disclosure and its conduct in concealing the nature of the account and its documentation,
they would have known the terms of the disputed account, made an appropriate claim to
the $230,000, and obtained the funds to which they were entitled.  By this reasoning,
Susan and Jeanne contend they established the element of causation.  We disagree.

	Breach of fiduciary duty requires a showing that the breach caused an injury. (8) Si Kyu
Kim v. Harstan, Ltd., 286 S.W.3d 629, 635 (Tex. App.-El Paso 2009, pet. filed) (citing Jones
v. Blume, 196 S.W.3d 440, 447 (Tex. App.-Dallas 2006, pet. denied); Punts v. Wilson, 137
S.W.3d 889, 891 (Tex. App.-Texarkana 2004, no pet.)); Lundy, 260 S.W.3d at 501.  Susan
and Jeanne had the burden to prove that Wells Fargo "proximately caused an injury" to
them.  See Edwards v. Pena, 38 S.W.3d 191, 198 (Tex. App.-Corpus Christi 2001, no pet.)
(holding that the plaintiff alleging breach of fiduciary duty bears the burden of proof) (citing
Mar. Overseas Corp. v. Ellis, 977 S.W.2d 536, 538 (Tex. 1996)).  "Cause in fact and
proximate cause are but specific applications of the rule that a plaintiff must produce
evidence from which the [juror] may reasonably infer that the [injury suffered and the]
damages sued for have resulted from the conduct of the defendant."  Selectouch Corp. v.
Perfect Starch, Inc., 111 S.W.3d 830, 835 (Tex. App.-Dallas 2003, no pet.); see Haynes
& Boone v. Bowser Bouldin, Ltd., 896 S.W.2d 179, 181-82 (Tex. 1995) (explaining that the
causal nexus requirement is met when a jury is presented with pleading and proof that
establishes a direct causal link between the actions of the defendant, the injury suffered,
and the damages awarded); see also Adame v. Law Office of Allison & Huerta, No. 13-04-670-CV, 2008 Tex. App. LEXIS 3912, at **11-12 (Tex. App.-Corpus Christi May 22, 2008,
pet. denied) (mem. op.) (setting out, in an appeal from the granting of a summary judgment
in a legal malpractice action, that proof of a causal nexus is necessary to ascertain the
amount of damages to which a plaintiff is entitled).
	Question 5 of the jury charge asked, "Do you find from a preponderance of the
evidence that the breach of fiduciary duty, if any you have found in answer to Question 4,
proximately caused an injury to Susan and Jeanne Crocker?"  The jury responded, "We do." 
The jury charge defined "proximate cause" as,
	that cause which, in a natural and continuous sequence, produces an event,
and without which cause such event would not have occurred.  In order to be
a proximate cause, the act or omission complained of must be such that a
person using the degree of care required of him would have foreseen that the
event, or some similar event, might reasonably result therefrom.  There may
be more than one proximate cause of an event.
	Contingent on finding Wells Fargo's actions caused an injury, the jury was asked
"What sum of money, if any, if paid now in cash, would fairly and reasonably compensate
Susan and Jeanne Crocker for their damages, if any, that resulted from the injury you have
found?"  The jury was instructed to consider only the following elements of damages: 
"[p]roperty belonging to the [e]state wrongfully distributed to a person . . . not entitled to
receive the property under the terms of the Will."  The jury answered "$230,000.00."  Based
on the damage question, the jury implicitly determined that an injury occurred because the
disputed funds belonged to the estate and were wrongfully distributed to Launa who was
not entitled to receive those funds under John's will. (9)
	In determining whether there is legally sufficient evidence to support the proximate
cause finding, we consider the following evidence favorable to the finding:  (1) Wells Fargo
set up the disputed account (10) as a joint account without ROS; (2) Wells Fargo paid
$230,000 to Launa after she claimed a right to the funds in the disputed account; (3) the
funds were paid to Launa and did not enter the estate; and (4) Susan and Jeanne were
residual beneficiaries under their father's will and stood to inherit the remainder of the
estate. (11)  While this evidence supports a finding that, through Wells Fargo's actions, the
money did not become part of the John's estate, this evidence is no more than a mere
scintilla to establish that the disputed funds actually belonged to the estate and were
wrongfully distributed to Launa.  King Ranch, 118 S.W.3d at 751.  Thus, we find no
evidence that an injury was shown.
	Moreover, the jury also heard the following testimony put on by Wells Fargo:  (1) the
joint account at issue took its funds from two other joint accounts which contained
community property and provided for ROS; (2) John and Launa's premarital agreement
provided that "all bank accounts opened after the date of marriage in the names of both
[John and Launa] shall be considered community property" and "shall be held in such a
manner as to provide the right of survivorship to the remaining party upon the death of the
other"; (3) after John's death, Launa noticed that $334,000 was missing from one of her
joint accounts with ROS; (4) at John's request that money had been transferred into the
disputed joint account; (5) Launa's attorney contacted Wells Fargo to assert Launa's
entitlement to the funds in the disputed account; (6) Wells Fargo discussed this matter with
counsel who advised it that Launa was entitled to the funds; (7) Smith testified that it was
his opinion that Launa "was legally entitled to the funds in that account and that any
litigation with regard to that would result in additional expense to the estate"; (8) Smith also
testified that the disputed account was a "bank account" and was a joint account subject
to the right of a survivorship provided by the premarital agreement; and (9) when Wells
Fargo met with Launa, in accordance with Smith's advice, it distributed to Launa the full
$460,000 from the disputed joint account.  We consider this contrary evidence in our legal
sufficiency review of this issue because we conclude that a reasonable juror could not have
disregarded it.  See City of Keller, 168 S.W.3d at 807, 827.
	In sum, Susan and Jeanne failed to carry their burden to establish causation; they
failed to establish that they were entitled to receive the $230,000.  See King Ranch, 118
S.W.3d at 751.  We sustain Wells Fargo's first issue on this basis.
III.  Punitive Damages
	Having sustained Wells Fargo's actual damage issue, we need not review its
remaining issues challenging punitive damages.  There can be no punitive damage award
without a recovery of actual damages.  See Nabours v. Longview Sav. & Loan Ass'n, 700
S.W.2d 901, 904 (Tex. 1985); Doubleday & Co., Inc. v. Rogers, 674 S.W.2d 751, 753-54
(Tex. 1984); see also Tex. Civ. Prac. & Rem. Code Ann. § 41.004(a) (Vernon 2008)
(codifying the common-law rule in actions governed by the exemplary damage statute).
IV.  Conclusion
	We reverse and render judgment that Susan Crocker and Jeanne Crocker take
nothing.
 
								NELDA V. RODRIGUEZ
								Justice

Delivered and filed the 29th 
day of December, 2009.
1. Throughout the record, Jeanne Crocker is also referred to as Jeanne Lynne Stevens.  For ease of
reference we will refer to her as Jeanne Crocker.  See Tex. R. App. P. 47.1.
2. Wells Fargo filed a third-party action against Launa White seeking reimbursement, attorney's fees,
and expenses.  In its brief, Wells Fargo explains that because "it had already paid the disputed funds to
Launa," by bringing her into the proceedings "the courts could sort out who owed what to whom," and "[i]f the
money turned out to belong to the daughters, Wells Fargo would simply seek reimbursement from Launa so
that no one ended up with more or less than they deserved."  Wells Fargo's claim against Launa was severed
from the underlying lawsuit to be heard at a date subsequent to the trial of the present case.  Launa is not a
party to this appeal.
3. McKnight testified that in April 2000 he "was in charge of a book of trust and investment accounts,
I.R.A.s and that [he] was the relationship manager on the accounts . . . ."
4. There is no dispute regarding the separate account John opened at the same time as the disputed
account.  The money in this account passed into the estate, and Susan and Jeanne received that money as
residuary beneficiaries, after claims against the estate were paid.
5. Jeanne testified that after she received a copy of the disputed account agency agreement, she called
McKnight to ask him to explain it.  McKnight told Jeanne that John had written "+ Launa joint" on the
agreement after his name.  Jeanne testified that when she challenged McKnight saying that it was not her
father's handwriting, he replied, "Well, that's what your father did."  At his deposition, however, McKnight
testified that he, not John, had written the phrase on the agreement and that he did not think that John was
with him when he did so.
6. Jeanne and Susan at first claimed the entire $460,000, but later sought only half of the funds. 
7. Under both negligence and breach of fiduciary duty, the tort theories pleaded and charged, Susan
and Jeanne had the burden to prove that any wrongdoing by Wells Fargo "proximately caused an injury" to
them.  See Western Invs., Inc. v. Urena, 162 S.W.3d 547, 550-551 (Tex. 2005) (concluding even if there were
a breach of duty in this negligence case, there was no evidence that such a breach proximately caused the
tragic occurrence); Si Kyu Kim v. Harstan, Ltd., 286 S.W.3d 629, 635 (Tex. App.-El Paso 2009, pet. filed)
(setting out that breach of fiduciary duty requires a showing that the breach caused an injury) (citing Jones
v. Blume, 196 S.W.3d 440, 447 (Tex. App.-Dallas 2006, pet. denied); Punts v. Wilson, 137 S.W.3d 889, 891
(Tex. App.-Texarkana 2004, no pet.))
8. Some language used in Susan and Jeanne's appellate arguments appears to suggest that they need
not prove causation and injury in this case.  For example, they make the following arguments:  (1) "numerous
fiduciary duties have been breached while [Wells Fargo] has worked to conceal its mistakes by, among other
things, forging documents. In this case, causation lies in that concealment," (2) the proximate cause finding
"must be analyzed in light of [Wells Fargo's] breach, which arises from its conduct in concealing the nature
of the account and the nature of the documentation for the account from the Crockers" and "the forgery of an
agency agreement for the disputed account," and (3) "[i]n arguing 'all's well that ends well,' [Wells Fargo]
sloughs off its place in the causation chain by contending that the money in the account belonged to Launa
all along.  But that argument assumes no wrongdoing and conveniently ignores [Wells Fargo's] efforts to
conceal its initial mistake through forgery and misrepresentation."  In their supplementary statement of facts,
the Crocker sisters also state that Wells Fargo "completely ignores the heart of this case--malicious breach
of fiduciary duty and the forgery accompanying that breach."  Finally, in response to the legal-sufficiency
challenge to the breach element, Susan and Jeanne summarize their response as follows:  "[Wells Fargo] with
Its Corporate Hat on Made a Mistake It Attempted with Its Independent Executor Hat on to Cover; and Therein
Lies This Verdict."

	To the extent Susan and Jeanne's arguments are asking us to dispense with the need to prove
causation and injury in this case, we decline to do so.  See Burrow v. Arce, 997 S.W.2d 229, 240 (Tex. 1999). 
Breach is enough only when a plaintiff seeks to forfeit some portion of fees earned in connection with a breach
of fiduciary duty.  Si Kyu Kim, 286 S.W.3d at 635 (citing Longaker v. Evans, 32 S.W.3d 725, 733 n.2 (Tex.
App.-San Antonio 2000, pet. withdrawn)).  The Crockers are not seeking "fee damages."  They are seeking
to recover actual damages.  See Slay v. Burnett Trust, 143 Tex. 621, 187 S.W.2d 377, 391 (1945) (op. on
reh'g) (en banc) (explaining that a trustee would be liable to trust beneficiaries for any actual loss to a trust
resulting from the loan of trust assets made in breach of the trustee's fiduciary duty to avoid self-dealing, but
in this case there was a question of fact as to whether the trust actually lost anything on the loan).  Injury and
causation are still required when a plaintiff seeks to recover actual damages for a breach of fiduciary duty. 
Si Kyu Kim, 286 S.W.3d at 635 (citing Longaker, 32 S.W.3d at 733); Hoover v. Larkin, 196 S.W.3d 227, 233
(Tex. App.-Houston [1st Dist.] 2006, pet. denied) (setting out, in a breach of fiduciary duty case, that while
a plaintiff need not prove causation to recover disgorgement of fees, the plaintiff must prove causation to
recover actual damages).
9. We note that this determination could be characterized as an issue of law; however, on appeal,
neither party has raised charge error in this regard.  Therefore, we will consider the charge as a proper charge
and the jury as the proper party to determine this issue.  See Romero v. KPH Consolidation, Inc., 166 S.W.3d
212, 221 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001); see also Minn. Life
Ins. Co. v. Vasquez, 192 S.W.3d 774, 778 (Tex. 2006).
10. A copy of the disputed joint account summary from April through June 2000 was admitted as
Defense Exhibit 16.  The summary identified the account as John and Launa Crocker's "Inv Agency Account." 
The holdings in the account consisted of money market and fixed income funds.
11. Susan and Jeanne contend that Wells Fargo's position that it paid the right person is wrong because
there was no right of survivorship created in the disputed account.  They support their contention with the
following arguments:  (1) the absence of a signed agency agreement precluded the application of section 439
of the probate code, see Tex. Prob. Code Ann. § 439 (Vernon 2003) (regarding rights of survivorship); (2) the
premarital agreement applied only to "bank accounts," which they contend the jury implicitly determined did
not include the disputed account; and (3) even if the disputed account could be considered a bank account,
they were harmed by the breach because (a) the premarital agreement only referred to a contractual obligation
to establish a ROS and did not create a ROS itself, and (b) Wells Fargo was bound by the form of the account
regardless of the threat of a future lawsuit or claim against the estate from Launa.  However, although Susan
and Jeanne presented the foregoing arguments at trial and now on appeal, they did not proffer testimony to
substantiate these arguments and to explain how they were entitled to the disputed funds.  See King Ranch,
118 S.W.3d at 751.  Rather, the only person who testified as to the ramifications of the transaction was Smith,
who consistently testified that the money was properly distributed to Launa and who also testified that the
disputed account was a bank account.  See supra n. 9.
