Robert T. McLean Irrevocable Trust u/a/d March 31, 1999

Robert McLean was involved in an automobile accident that left him a quadriplegic and pursued a related product-liability action. He received a large sum of money that was placed into a trust (plaintiff). The trust named a trustor, trustees, and a trust protector who acted in a fiduciary capacity and was tasked with removing trustees, appointing successor trustees, and appointing successor trust protectors. J. Michael Ponder (defendant), McLean’s counsel in the product-liability action, was named trust protector, but the trust did not give him any powers or duties to supervise the trustees. The trust did outline the trustees’ powers, rights, and duties. Several times, Ponder appointed successor trustees when the original trustees resigned. The trust brought suit against all successor trustees and trust protectors, including Ponder, claiming that Ponder had breached his fiduciary duty to McLean and had acted in bad faith by failing to monitor expenditures, failing to stop trustees from acting against McLean’s interests, and placing his loyalty to the trustees and their interests ahead of McLean’s. McLean and his attorney made Ponder aware that trustees were spending money inappropriately and depleting trust assets, but McLean and his attorney claimed he took no action. The trial court granted Ponder’s motion to dismiss or for summary judgment, and the trust appealed. The court found that the trust stated a claim for breach of fiduciary duty and that genuine issues of material fact existed and remanded to the trial court. The case was tried to a jury, and there was expert testimony that Ponder should have removed the trustees in December 1999. There was also testimony that the depletion of assets occurred in the last quarter of 1999, which was prior to Ponder’s being notified that the trustees needed to be removed. The trial court granted Ponder’s motion for a directed verdict. The trust appealed.