Sierad v. Barnett, 164 S.W.3d 471 (Tex. App.—Dallas 2005, no pet.).
After Intestate’s death, the court appointed Daughter as the
administrator and required the posting of bond. After a complicated
series of events and legal actions, the court determined that Daughter
had breached her fiduciary duties and rendered a judgment against her
and Surety. Surety appealed.
Surety argued that the evidence was insufficient to show that Daughter’s
acts and omissions had caused economic loss to the trust. The trial
court enumerated a list of a dozen ways in which Daughter had wasted or
converted estate assets such as living in Intestate’s house without
paying rent and not making the mortgage payments. The court reviewed the
evidence supporting the trial court’s conclusions and held that the
findings were not so contrary to the overwhelming weight of the evidence
so as to be clearly wrong or unjust. Accordingly, the court agreed with
the trial court that Surety was liable.
Moral: A surety who wishes to escape liability for the evil acts of a
personal representative should make its best case at the trial level
because it will be difficult to overturn a finding of liability on
appeal.