“Exemplary damages” includes punitive damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5). A jury may only award exemplary damages if the claimant proves, by clear and convincing evidence, that the harm resulted from: (1) fraud; (2) malice; or (3) gross negligence.

her expenses out of assets of the Trust, improperly and without appellees’ knowledge, which is evidence of a corresponding $200,000 loss in value to the Trust. Accordingly, considering the evidence in a light most favorable to the jury’s findings and indulging every reasonable inference to support them, we conclude there is legally sufficient evidence to support the jury’s finding that $200,000 represented the amount of loss in the value of the Trust as a result of Mendell’s breach.Id.The court then addressed the trustee’s argument that there was not sufficient evidence to support the exemplary damages award. Exemplary damages may be awarded if “the claimant proves by clear and convincing evidence that the harm with respect to which the claimant seeks recovery of exemplary damages results from . . . malice.” Id. (citing Tex. Civ. Prac. & Rem. Code § 41.003(a)(2)). Malice is defined as “a specific intent by the defendant to cause substantial injury or harm to the claimant.” Id. (citing Tex. Civ. Prac. & Rem. Code. § 41.001(7)). The court found that the evidence was sufficient to support the jury’s finding. The trustee admitted that even though she thought her five law firms informed the plaintiffs of her decision that their mother did a prohibited act, she admitted she did not present any documentary evidence, including emails or letters, demonstrating that this information was sent by her attorneys. She admitted that she did not disclose her concerns related to the disclaimer until after sued her. She did not communicate this decision despite receiving repeated emails and questions asking for a status report on the distribution of trust assets. “Although Rachel sent Mendell 12 emails over a six-month period in 2018, Mendell either did not respond to these emails or, when she finally did respond, she promised to address Rachel’s concerns soon, but never did. At no time during these email exchanges did Mendell communicate her concerns about any alleged Prohibited Acts or explain why distributions had not be

Gross negligence has long been defined under Texas law, and is even codified by statute, as requiring proof of two elements:(A) [ ] when viewed objectively from the standpoint of the actor at the time of its occurrence involves an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and(B) of which the actor has actual, subjective awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or welfare of others. (Tex. Civ. Prac. & Rem. Code § 41.001(11))As for “willful misconduct” though, there has been a nearly complete lack of Texas case law defining the term despite its presence in the vast majority of MSAs.In May, the Houston (14th) Court of Appeals issued its opinion in Apache Corp. v. Castex Offshore, Inc., providing the first concrete, working definition for willful misconduct from a Texas court: “deliberate mismanagement committed without regard for the consequences.” For those who believed that willful misconduct provided a higher standard than gross negligence (more akin to intentional harm) the opinion likely comes as a surprise.

“Exemplary damages” includes punitive damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5). A jury may only award exemplary damages if the claimant proves, by clear and convincing evidence, that the harm resulted from: (1) fraud; (2) malice; or (3) gross negligence.

“Exemplary damages” includes punitive damages. Tex. Civ. Prac. & Rem. Code Ann. § 41.001(5). A jury may only award exemplary damages if the claimant proves, by clear and convincing evidence, that the harm resulted from: (1) fraud; (2) malice; or (3) gross negligence.

TDS argued that reputational damages are economic because they can be valued in money. Texas Civil Practice and Remedies Code § 41.001 did not specifically define non-economic damage until 2003, in which it was defined to include injury to reputation. TDS argued that the Court should focus on the statute as it was written in 1995.