Power of Attorney

Musquiz v. Marroquin, 124 S.W.3d 906 (Tex. App.—Corpus Christi-Edinburg 2004, pet. denied). 


1. Breach of Duty


Principal signed a durable power of attorney giving broad powers to Son and Daughter as Co-Agents. The power contained an exculpatory clause and authorized self-dealing. Daughter used Principal’s funds to make improvements to Principal’s home and then sold and deeded the house to herself and her husband. Daughter also engaged in other self-dealing transactions. Subsequently, Principal died with a valid will leaving her entire estate to Son. After Daughter’s actions came to light, Son sued Daughter alleging breach of fiduciary duty as well as trespass to try title. The trial court agreed with Son and set aside the sale and related self-dealing transactions which resulted in Son receiving the home along with a damage award for the property’s fair rental value during the time Daughter occupied the home and attorney’s fees. Daughter appealed.

The court examined the power of attorney and determined that it established a joint agency because Principal named two agents and there was no language supporting the creation of a joint and several agency. Accordingly, all acts on behalf of Principal needed the joinder of both agents. Because Son did not join, the actions of Daughter were properly set aside as null and void. However, the award of attorney’s fees was not proper because attorney’s fees are not recoverable in trespass to try title and breach of fiduciary duty actions.

Moral: A durable power of attorney which names two or more agents will be construed to create a joint agency unless the power affirmatively establishes a joint and several agency.


2. Jurisdiction


After Principal’s death, controversy arose regarding the propriety of various actions of Agent. The case was filed and heard in the district court. The appellate court agreed that the district court had jurisdiction even though the probate of Principal’s estate was pending in a statutory county court. The court rejected Agent’s claim that the statutory county court had exclusive jurisdiction because the probate case was filed first. The court explained that although Probate Code §§ 5 & 5A provide that the probate court has jurisdiction over matters incident to estate, these sections do not strip the district court of jurisdiction.

Moral: District courts and county courts at law have concurrent jurisdiction over matters incident to an estate.