    Case: 16-10042        Document: 00514015094          Page: 1     Date Filed: 06/01/2017




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT
                                                                                United States Court of Appeals
                                                                                         Fifth Circuit

                                       No. 16-10042                                    FILED
                                                                                    June 1, 2017
                                                                                    Lyle W. Cayce
                                                                                         Clerk

RICHARD DONALD JONES, JR.,
                                           Plaintiff–Appellee
                                           Cross-Appellant,
versus
WELLS FARGO BANK, N.A.,
                                           Defendant–Appellant
                                           Cross-Appellee,
JPMORGAN CHASE BANK, N.A.,
 Formerly Known as Chase Bank of Texas National Association,
                                           Defendant–Appellee.




                   Appeals from the United States District Court
                        for the Northern District of Texas




Before SMITH and HAYNES, Circuit Judges, and JUNELL, District Judge. *
JERRY E. SMITH, Circuit Judge:

     Wells Fargo Bank, N.A. (“Wells Fargo”), and JPMorgan Chase Bank,
N.A. (“JPMorgan”), served as trustees of trusts of which Richard Jones, Jr.,
was a beneficiary. Jones sued both banks for breach of fiduciary duty. The



     *   District Judge of the Western District of Texas, sitting by designation.
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                                       No. 16-10042
district court dismissed all but one of Jones’s claims, as to which a jury, finding
a breach, awarded actual and exemplary damages. Wells Fargo seeks to set
aside the verdict. On cross-appeal, Jones hopes to revive some of the claims
that were dismissed. We find in favor of the banks on all issues.

                                             I.
      Jones is the grandson of Sweetie Boyle, who died in 1996. Until 2010,
Jones had beneficial interests in four trusts that were funded with assets from
Boyle’s estate. JPMorgan and its predecessors in interest 1 served as trustee of
three of the trusts from their creation until 2001, when Wells Fargo became
the trustee after acquiring JPMorgan’s trust department. Wells Fargo re-
mained the trustee until the trusts were terminated on December 31, 2010. A
fourth trust was created in 2003, with Wells Fargo serving as trustee until the
trust’s termination on December 31, 2010.

      The litigation surrounding these trusts dates back to 1999, when
JPMorgan filed two actions in state court. In the first, it sought a final ac-
counting of Boyle’s estate and a discharge from any further duties to the ben-
eficiaries, including Jones. In the second, it sought to resign as trustee of the
Boyle trusts. Jones filed counterclaims in both cases, alleging that JPMorgan
had mismanaged the trusts in various ways. Both matters were ultimately
dismissed.

      Meanwhile, another case, brought in a different state court, concerned
the Richard Donald Jones, Jr. 1994 Family Trust (the “House Trust”). In 1995,
Jones asked the then-trustee, JPMorgan, to purchase a specific house in Bas-
trop County, Texas, and hold it in the House Trust for his benefit. The trustee
purchased the house, and for a time Jones lived there. According to Jones,


      1   Hereinafter, we refer to JPMorgan and its predecessors in interest as “JPMorgan.”
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                                       No. 16-10042
however, the house had so many flaws—including broken appliances, electrical
issues, and water leaks that eventually caused a mold problem—that it was
uninhabitable, and he had to move out. In 1999, JPMorgan sued the inspector
it had hired to perform a pre-purchase house inspection (hereinafter the
“House Suit”). 2

      By the mid-2000s, it was clear that the House Trust did not have enough
cash to pay for all of the necessary repairs. Wells Fargo concluded that Jones
would be better off if the House Trust were dissolved. In 2007, Wells Fargo
sued in state court to terminate the House Trust (hereinafter the “Termination
Suit”). The state court ruled against Wells Fargo, keeping the trust alive.

      At some point, Wells Fargo also concluded that it would lose the House
Suit if it took the case to trial. Settlement negotiations fell apart. Wells Fargo
tried to assign the claim to Jones, who refused to accept the assignment. In
2009, Wells Fargo nonsuited the House Suit.

      The present case is four years old. In March 2013, Jones sued JPMorgan
and Wells Fargo in state court on a number of claims.                  Wells Fargo and
JPMorgan removed to federal court and moved for summary judgment. The
district court dismissed all of the claims except for the claim that, by non-
suiting the House Suit instead of proceeding to trial, Wells Fargo had breached
its fiduciary duty to Jones, had breached the trust contract, and had violated
the Texas Property Code.

      The nonsuit claim went to trial. During his closing argument, Jones’s
lawyer introduced a new theory: that Wells Fargo had breached its fiduciary
duty to Jones not by nonsuiting the case in April 2009, but by not nonsuiting
it earlier, when it became clear that Wells Fargo would not prevail. Although


      2   JPMorgan also sued the sellers of the house, who were nonsuited early-on.
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                                   No. 16-10042
Jones had not pleaded that theory, Wells Fargo did not object during trial. 3
Wells Fargo instead raised its objection repeatedly in its post-trial briefing,
including in its renewed motion for judgment JML, and its responses to Jones’s
motions to enter judgment and for leave to amend the complaint. The district
court, however, ruled that, because Wells Fargo was on notice of this potential
theory of liability, it had waived any objection to the adequacy of the pleadings
by not objecting in its first motion for JML.

      The jury seems to have relied on this new theory. It concluded that Wells
Fargo had breached its fiduciary duty by nonsuiting and that the harm to
Jones was the result of “gross negligence or malice.” At the same time, the jury
pegged Jones’s likely recovery from the lawsuit, had it not been nonsuited, at
“$0.00.”   The jury awarded Jones $171,780.57 in exemplary damages,
$33,658.66 in attorneys’ fees, and $4,440.94 in disgorged trustee fees. The
court denied Wells Fargo’s renewed motion for JML and granted Jones’s
motion for entry of final judgment.

      Wells Fargo appeals. It claims that (1) the evidence was not sufficient to
support a finding of breach of fiduciary duty, (2) the evidence was not sufficient
to support a finding of actual damages, (3) the evidence was not sufficient to
support a finding of exemplary damages, (4) the court erroneously shifted the
burden of proof, (5) Wells Fargo did not waive its objection to Jones’s introduc-
tion of his frivolous-litigation theory, (6) Jones should have presented expert
testimony, and (7) Jones’s claim is time-barred.

      Jones cross-appeals.      He asserts that the district court improperly
dismissed several claims against Wells Fargo as well as his claim that




      3 Wells Fargo first became aware of this theory during argument on Wells Fargo’s
motion for judgment as a matter of law (“JML”).
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JPMorgan failed to convey mineral interests.

                                              II.
       Wells Fargo asks this court to set aside a jury verdict. “Although we
review denial of a motion for [JML] de novo, we note that ‘our standard of
review with respect to a jury verdict is especially deferential.’” 4 “[W]hen evalu-
ating the sufficiency of the evidence, we view all evidence and draw all reasona-
ble inferences in the light most favorable to the verdict.” 5 Nevertheless, we
will not sustain a jury verdict based on a “mere scintilla” of evidence. 6

       In Texas, “[t]he elements of a claim for breach of fiduciary duty are (1) a
fiduciary relationship between the plaintiff and the defendant, (2) a breach by
the defendant of his fiduciary duty to the plaintiff, and (3) an injury to the
plaintiff or a benefit to the defendant as a result of the breach.” 7 Both sides
agree that a fiduciary relationship existed. Jones claims that Wells Fargo
breached its fiduciary duty when it nonsuited the case instead of taking it to
trial. In doing so, Jones says, Wells Fargo deprived him of a potential recovery
and rendered any trust resources spent on attorneys’ fees to have been wasted.
Alternatively, Jones claims that Wells Fargo breached its duty by wasting
trust resources litigating a meritless suit.

       With respect to the claim actually tried—that nonsuiting the suit was a
breach of fiduciary duty—Jones failed to persuade the jury of that theory, as



       4SMI Owen Steel Co., Inc. v. Marsh USA, Inc., 520 F.3d 432, 437 (5th Cir. 2008) (per
curiam) (quoting Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229, 235 (5th Cir. 2001)).
       5 Pineda v. United Parcel Serv., Inc., 360 F.3d 483, 486 (5th Cir. 2004) (citation
omitted).
       6See Brady v. Hous. Indep. Sch. Dist., 113 F.3d 1419, 1422 (5th Cir. 1997) (citation
omitted).
       7 Cluck v. Mecom, 401 S.W.3d 110, 114 (Tex. App.–Houston [14th. Dist.] 2011, no pet.)
(citations omitted).
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evidenced by its conclusion that the lawsuit had a value of zero at the time of
nonsuit. Tellingly, Jones refused to accept an assignment of the House Suit
claim. Thus, the only theory on which the jury could have found a breach is
the one not pleaded—that the failure to nonsuit sooner was the breach.

       As for the new theory of liability presented to the jury in passing in the
rebuttal closing argument, Wells Fargo was never on notice that that issue was
being litigated, so it could not construct an appropriate defense. Indeed, at
trial, after the close of Jones’s case-in-chief, Jones asked the court to conform
the pleadings to purported new evidence that Wells Fargo had filed a frivolous
lawsuit, but the court rejected the request. In the presence of both parties, the
court instructed Jones that it had “diligently tried to make sure that we try
only . . . the nonsuit claim, and that’s all that’s going to the jury.” 8 Neverthe-
less, the subsequent entry of judgment on this unpleaded claim effectively
amended the complaint.

       Post-trial amendments conforming the pleadings to the evidence are
appropriate under Federal Rule of Civil Procedure 15(b) only if the defendant
gives express or implied consent. 9 “Rule 15(b) recognizes that basic fairness



       8 Jones does not challenge this ruling on appeal. Even if he did, the district court did
not abuse its discretion in denying Jones’s request. See Nat’l Bus. Forms & Printing, Inc. v.
Ford Motor Co., 671 F.3d 526, 538 (5th Cir. 2012). As the court correctly noted, this case was
carefully tried based on the nonsuit claim. The evidence relating to the frivolous-lawsuit
claim was relevant to the nonsuit claim; thus, Wells Fargo had no reason to object to any
such evidence, and failure to object does not demonstrate trial by consent. See Moody v. FMC
Corp., 995 F.2d 63, 65–66 (5th Cir. 1993). Moreover, Jones’s request was unduly delayed and
potentially prejudicial to Wells Fargo’s defense. See id. Because the frivolous-lawsuit claim
was closely related to Jones’s nonsuit claim, Jones could have developed this theory of liabil-
ity during discovery but instead raised it for the first time after resting his case.
       9  Domar Ocean Transp., Ltd., Div. of Lee-Vac, Ltd. v. Indep. Ref. Co., 783 F.2d 1185,
1189 (5th Cir. 1986); see also Deere & Co. v. Johnson, 271 F.3d 613, 622 (5th Cir. 2001)
(“[T]rial of unpled issues by implied consent is not lightly to be inferred under Rule 15(b),
[and] such inferences are to be viewed on a case-by-case basis and in light of the notice
demands of procedural due process.” (second alteration in original) (quoting Triad Elec. &
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                                       No. 16-10042
entitles a defendant to notice, before trial, of who sued it and the nature of the
claims being asserted against it.” 10 Wells Fargo could not have recognized,
during trial, that the new unpleaded claim had entered the case because―after
Jones had rested his case―the court expressly said the unpleaded claim was
not part of the case and would not go to the jury. Thus, Wells Fargo could not
have consented to the unpleaded claim. 11 Because Jones neither pleaded nor
tried his case on the frivolous-lawsuit theory, and because Wells Fargo did not
consent to a post-trial amendment, it was improper for the court to award
damages against Wells Fargo on that theory. 12

       We do not reach the other issues Wells Fargo raises on appeal. Instead,
we proceed to examine the cross-appeal.

                                             III.
       Jones claims that the district court erred by granting summary judgment
to Wells Fargo on his claims that the bank misapplied insurance proceeds,
double-billed trusts, improperly used trust funds to pay his adversaries’ legal



Controls, Inc. v. Power Sys. Eng’g, Inc., 117 F.3d 180, 193–94 (5th Cir. 1997))).
       10   Domar, 783 F.2d at 1189.
       11 The district court also concluded that Jones’s first amended complaint put Wells
Fargo on notice of the new claim. The first amended complaint, however, repeatedly alleges
that Wells Fargo breached its fiduciary duty by nonsuiting the House Suit. At no point does
the first amended complaint allege that filing the House Suit was also a breach of Wells
Fargo’s fiduciary duty. Indeed, Jones argued, in both his post-trial motion for leave to amend
and to the judge at trial, that he neither could have known about nor pleaded this theory
before trial.
       12 Presidio Valley Farmers Ass’n v. Brock, 765 F.2d 1353, 1358 (5th Cir. 1985) (revers-
ing an award of damages for joint and several liability because it was based on an unpleaded
and unconsented-to issue); see also Dawley v. NF Energy Saving Corp. of Am., 374 F. App’x
921, 924 (11th Cir. 2010) (per curiam) (reversing entry of judgment on an unpleaded and
unconsented-to issue and rendering JML for defendant); Deere, 271 F.3d at 623 (reversing
entry of judgment on an unpleaded and unconsented-to issue and remanding to enter a take-
nothing judgment); Domar, 783 F.2d at 1189 (vacating post-trial amendment of unpleaded
and unconsented-to claim).
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fees, and failed to advise him of the possibility of combining trusts. Jones also
maintains that the court improperly dismissed his claim that JPMorgan
breached a fiduciary duty by failing to convey title to certain mineral interests
in Texas and New Mexico.

       The district court found that the claims Jones now seeks to revive are
time-barred.            In Texas, the limitations period for breach-of-fiduciary-duty
claims is four years. 13 “In most cases, a cause of action accrues when a wrong-
ful act causes a legal injury, regardless of when the plaintiff learns of that
injury or if all resulting damages have yet to occur.” 14 But sometimes an injury
is “inherently undiscoverable”—that is, “it is by nature unlikely to be discov-
ered within the prescribed limitations period despite due diligence.” 15 In those
rare cases, a cause of action “does not accrue until the plaintiff knew or in the
exercise of reasonable diligence should have known of the wrongful act and
resulting injury.” 16 In addition, “a person to whom a fiduciary duty is owed is
relieved of the responsibility of diligent inquiry into the fiduciary’s conduct”
until “the fact of misconduct becomes apparent.” 17

                                                A.
       In May or June 2005, a lightning strike damaged the Bastrop County
house. Jones had an insurance policy in his name, though the premiums were
paid out of the House Trust. The insurance company sent Jones a check for


       13   See TEX. CIV. PRAC. & REM. CODE § 16.004(a)(5).
       14   Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 221 (Tex. 2003) (citation
omitted).
       15 S.V. v. R.V., 933 S.W.2d 1, 7 (Tex. 1996) (citation omitted). This exception—the so-
called “discovery rule”—has two elements: the injury must be “inherently undiscoverable”
and the evidence must be “objectively verifiable.” Id. at 4–7. Only the first element is
relevant to our analysis.
       16   Id. at 4 (citation omitted).
       17   Id. at 8.
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$25,988.28. A Wells Fargo trust officer urged Jones to endorse the check to
Wells Fargo, which he did. Wells Fargo deposited the money into the House
Trust in October 2005. Jones says that he thought the money would either go
toward repairing the house or be held in trust for his benefit. A Wells Fargo
trust officer testified in a deposition that after determining that the amount of
cash held in the trust, including the newly deposited insurance proceeds, would
not be sufficient to cover the cost of fixing the house’s various problems, he told
Jones that the proceeds would be held in trust for Jones’s benefit.

      Upon termination of the trust, at the end of 2010, Wells Fargo distrib-
uted the account balance to Jones. By that point, the trust had a slightly nega-
tive cash balance; the trust’s value was tied up in the house itself.

      Jones claims that he should have received the insurance proceeds upon
the House Trust’s termination, in the form of cash or a cash equivalent. As
evidence that Wells Fargo misapplied the proceeds, he points to the fact that
he did not receive $25,988.28 in cash upon the trust’s termination, and he
claims that the alleged misconduct came to light in 2009, less than four years
before he sued in March 2013. Wells Fargo counters that the claim accrued in
2005 or 2006, shortly after the proceeds were deposited into the House Trust.

      The alleged misconduct should have been apparent to Jones more than
four years before he sued. He was in contact with Wells Fargo trust officers
and received annual statements showing the balances and all activity in his
trust accounts. If he had noticed anything improper, he could have sued. He
eventually did, but by that point, seven and a half years had passed since the
insurance proceeds had been deposited into the House Trust. This claim is
time-barred.




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                                             B.
       In January 2005, Wells Fargo billed two trusts identical amounts for
identical invoice numbers. Jones was the beneficiary of one of those trusts;
Jones’s niece was the beneficiary of the other. Jones suspects that Wells Fargo
double-billed the trusts—that is, billed twice for the same service. Jones con-
tends that there is a genuine dispute as to a material fact. Though he did not
raise this claim in his first amended complaint, he did allude to it in response
to Wells Fargo’s second motion for summary judgment. Because “[a] claim
which is not raised in the complaint but, rather, is raised only in response to a
motion for summary judgment is not properly before the court,” 18 we do not
consider it.

                                             C.
       Jones alleges that Wells Fargo breached its fiduciary duty by using trust
funds to pay for legal expenses it incurred in the Termination Suit and legal
expenses JPMorgan incurred in other litigation against Jones. But in 2007,
six years before this suit was filed, Jones received an annual account statement
listing cash disbursements paid to a law firm for “termination of trust.” That
firm represented Wells Fargo in the Termination Suit. Thus, Jones was on
notice of facts that should have led him to investigate the use of trust funds to
pay his adversaries’ legal fees. The district court found that this claim is time-
barred, and we agree.

                                             D.
       Jones claims that Wells Fargo breached a fiduciary duty by failing to
advise him that if he combined the House Trust and a second trust (the “1988



       18 Cutrera v. Bd. of Supervisors of La. State Univ., 429 F.3d 108, 113 (5th Cir. 2005)
(citation omitted).
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Trust”), the new trust might have had enough cash to pay for repairs to the
Bastrop County house. He points out that a provision in the House Trust
would have allowed it to be combined with another trust in certain circum-
stances. It is unclear whether the House Trust and the 1988 Trust could have
been combined. In any event, Jones had access to the House Trust agreement
containing the provision at issue. Any misconduct was readily apparent and
not inherently undiscoverable.

                                          E.
      Jones claims that JPMorgan breached a fiduciary duty by failing to con-
vey title to certain mineral interests, owned by the Boyle trusts, in Reeves
County, Texas, and Lea County, New Mexico. Because JPMorgan has not been
the trustee of the Boyle trusts since 2001, any misconduct would have occurred
more than a decade before Jones brought this claim. Jones contends that the
claim is not time-barred because the alleged misconduct was “inherently undis-
coverable.” The district court dismissed the claim per Federal Rule of Civil
Procedure Rule 12(c) for being untimely.

      The alleged misconduct was not inherently undiscoverable. Jones has
long been aware that JPMorgan may have failed to convey title to land owned
by the Boyle trusts and that the Boyle trusts owned oil-and-gas producing
properties in Reeves and Lea Counties. In 2000, Jones filed counterclaims in
Texas state court alleging that JPMorgan had failed to convey title to oil-and-
gas producing properties in the area. At the time, Jones was not aware of the
specific properties at issue here, but he could have learned of their existence
from public property records. 19 This claim is time-barred.




      19 See HECI Exploration Co. v. Neel, 982 S.W.2d 881, 887 (Tex. 1998) (stating that
information contained in publicly available records is not inherently undiscoverable).
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                                    IV.
     The banks prevail on all issues before this court. On the issues tried to
the jury, the judgment is VACATED, and a judgment of dismissal is
RENDERED. With respect to Jones’s issues on cross-appeal, the summary
judgment is AFFIRMED.




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