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Joint and Several Liability for Breach of Fiduciary Duty

Eric Fryar

When may a defendant be held jointly and severally liable for the tortious conduct of another? Civil Conspiracy, Aiding and Abetting, Knowing Participation

The classic statement was given by Professors Prosser and Keeton as follows:

All those who, in pursuance of a common plan or design to commit a tortious act, actively take part in it, or further it by cooperation or request, or who lend aid or encouragement to the wrongdoer, or ratify and adopt the wrongdoer's acts done for their benefit, are equally liable.

W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 46, at 323 (5th ed. 1984) (quoted in Juhl v. Airington, 936 S.W.2d 640, 643 (Tex. 1996)).

Texas law provides three distinct bases for imposing on one person joint and several liability for the tortious conduct of another: contract, causation, and participatory conduct. Each of these bases involves different legal concepts, different public policies, and different elements and applicability. Unfortunately, Texas appellate courts often confuse the different theories, intermingle the elements, and use the incorrect terminology. The recent Houston [1st Dist.] court of appeals decision, Wooters v. Unitech Int'l, Inc., 01-15-00174-CV, 2017 WL 372165 (Tex. App.—Houston [1st Dist.] Jan. 26, 2017), is an apt example of the failure to distinguish these distinct bases of these different theories of liability. 

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Topics: Fiduciary Duties, Joint and Several Liability
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The Shareholder Oppression Blog provides timely updates and commentary on the development of Texas Shareholder Oppression law in the wake of the Texas Supreme Court's Ritchie v. Rupe decision, together with legal analysis of the rights, duties, and legal remedies in disputes among business owners in all types of closely-held businesses.

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About the Author

Eric Fryar

Eric Fryar is a Houston, Texas business litigation attorney, whose practice focuses almost exclusively on shareholder oppression and similar disputes among business owners. Recognized as an authority in this area of the law, Eric Fryar has written, taught, and practiced the law the governing shareholder and business owner rights for more than a quarter century. He achieved the largest fraud verdict in the state of Texas for a group of minority shareholders in 2015--one of the largest verdicts in the country that year, and has recently published a law review article in the Texas Journal of Business Law on the future of shareholder oppression litigation in Texas.

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