Remediable Briefing Defects Do Not Waive Derivative Appeals—Texas Courts Should Decide Merits and Order Rebriefing When Helpful

I. Introduction

Case: CHRISTOPHER F. BERTUCCI, AS OF THE ESTATE OF ANTHONY R. BERTUCCI, AND DERIVATIVELY ON BEHALF OF AMERICAN AFFORDABLE HOMES & PROPERTIES, INC.; AMERICAN AFFORDABLE HOMES, LP; TOWN VISTA DEVELOPMENT, LLC; TOWN VISTA TERRACE, INC.; AND MIDCROWNE SENIOR SLP, LLC v. EUGENE L. WATKINS, JR.
Court: Supreme Court of Texas
Opinion by: Justice Boyd
Opinion delivered: March 14, 2025

This business divorce arises from a long-running real-estate development relationship in which Anthony Bertucci supplied most capital (typically 60%) and Eugene Watkins supplied industry expertise and day-to-day management (typically 40%). The parties formed separate project-specific entities rather than an umbrella venture. Watkins managed project funds through a bank account of a separate Watkins-controlled partnership (TCBLP), commingling those funds with other monies and exercising exclusive spending authority from that account.

After Anthony’s health declined, his son Christopher—holding power of attorney and later serving as executor—challenged Watkins’s handling of funds, demanded an accounting, and ultimately removed Watkins from roles in the project entities. An interpleader action over escrowed sale proceeds expanded into claims by Bertucci (individually and derivatively for the entities) alleging theft, breach of fiduciary duty, duty to account, disgorgement/forfeiture, and breach of contract. The probate court granted summary judgment for Watkins on all claims. The court of appeals reversed in part but held that Bertucci waived appellate review of the derivative claims due to inadequate briefing.

The Texas Supreme Court addressed four issue clusters: (1) appellate “briefing waiver” as to derivative claims; (2) whether Watkins owed fiduciary duties to Bertucci individually; (3) limitations; and (4) two evidentiary disputes (a court-appointed accountant’s report and the Dead Man’s Rule).

II. Summary of the Opinion

  • No waiver of derivative-claim appeal for alleged briefing defects: The court of appeals erred in refusing to consider derivative-claim arguments; the case is remanded for the court of appeals to address those arguments in the first instance, with discretion to request supplemental briefing under Texas Rule of Appellate Procedure 38.9(b).
  • Individual fiduciary-duty claim fails as a matter of law on this record: The court of appeals erred by reversing summary judgment based on a theory not presented to the trial court (Texas Rule of Civil Procedure 166a(c)) and, in any event, the evidence/arguments did not establish a fiduciary duty owed by Watkins to Bertucci personally.
  • Limitations presents fact issues: The court of appeals correctly held fact issues preclude summary judgment on Watkins’s limitations defense.
  • Evidentiary rulings: The court of appeals did not abuse its discretion by declining to decide admissibility/conclusiveness of the court-appointed accountant’s report at that stage; and it correctly applied the Dead Man’s Rule to bar Watkins’s uncorroborated testimony that the decedent orally approved disputed transactions.

Disposition: the Supreme Court reinstated summary judgment against Bertucci’s individual breach-of-fiduciary-duty claims and remanded to the court of appeals to consider the derivative claims.

III. Analysis

A. Precedents Cited

1. Briefing waiver, appellate jurisdiction, and preference for merits decisions

  • Walker v. Blue Water Garden Apartments, 776 S.W.2d 578 (Tex. 1989) and United Ass'n of Journeymen & Apprentices v. Borden, 328 S.W.2d 739 (Tex. 1959): invoked to distinguish between technical defects and a “bona fide attempt” to invoke appellate jurisdiction.
  • State ex rel. Durden v. Shahan, 658 S.W.3d 300 (Tex. 2022) (per curiam): reinforced that notices/briefing should not be parsed hypertechnically when the parties and court understood what was being appealed and there is no unfair surprise.
  • ERI Consulting Eng'rs, Inc. v. Swinnea, 318 S.W.3d 867 (Tex. 2010); Ross v. St. Luke's Episcopal Hosp., 462 S.W.3d 496 (Tex. 2015); RSL Funding, LLC v. Newsome, 569 S.W.3d 116 (Tex. 2018): acknowledged that inadequate briefing can forfeit issues, but the Court used these cases to frame—not expand—waiver doctrine.
  • Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, 614 S.W.3d 729 (Tex. 2020) (citing Holley v. Watts, 629 S.W.2d 694 (Tex. 1982)): supported a holistic “intent” review of briefs and the norm that courts should hesitate to decide cases on procedural defects.
  • Dudley Constr., Ltd. v. Act Pipe & Supply, Inc., 545 S.W.3d 532 (Tex. 2018); Weeks Marine, Inc. v. Garza, 371 S.W.3d 157 (Tex. 2012) (quoting Perry v. Cohen, 272 S.W.3d 585 (Tex. 2008)); First United Pentecostal Church of Beaumont v. Parker, 514 S.W.3d 214 (Tex. 2017); Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279 (Tex. 1994): collectively emphasized the institutional preference to reach the merits when reasonably possible.
  • Horton v. Stovall, 591 S.W.3d 567 (Tex. 2019): key to the Court’s “remediable error” framing—if defects can be cured, courts should not make them fatal without a reasonable opportunity to cure.
  • Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex. 2003) (citing Lehmann v. Har-Con Corp., 39 S.W.3d 191 (Tex. 2001) and Verburgt v. Dorner, 959 S.W.2d 615 (Tex. 1997)): used to reject “overly technical” constructions that defeat the right to appeal.
  • Roccaforte v. Jefferson County, 341 S.W.3d 919 (Tex. 2011) (Willett, J., concurring in part) and United States v. Olano, 507 U.S. 725 (1993): cited for the waiver/forfeiture distinction, though the Court expressly reserved the terminological question.

2. Fiduciary duty: entity-level vs individual-level and preservation limits

  • M.R. Champion, Inc. v. Mizell, 904 S.W.2d 617 (Tex. 1995): referenced for the characterization of partner duties as “in the nature of a fiduciary duty.”
  • Strebel v. Wimberly, 371 S.W.3d 267 (Tex. App.—Houston [1st Dist.] 2012, pet. denied): the court of appeals relied on Strebel’s “control” concept for limited-partner fiduciary duties; the Supreme Court did not adopt it and found it inapplicable and unpreserved here.
  • Ritchie v. Rupe, 443 S.W.3d 856 (Tex. 2014): used for the principle that officers/directors generally owe duties to the corporation, not to fellow owners in their individual capacities.
  • Suntech Processing Sys., L.L.C. v. Sun Commc'ns, Inc., No. 05-99-00213-CV, 2000 WL 1780236 (Tex. App.—Dallas Dec. 5, 2000, pet. denied) and Gadin v. Societe Captrade, No. CIV.A. 08-CV-3773, 2009 WL 1704049 (S.D. Tex. June 17, 2009): cited to show Texas law’s reluctance to recognize per se fiduciary duties among LLC members absent additional circumstances.
  • Rule-based preservation authorities: Johnson v. Brewer & Pritchard, P.C., 73 S.W.3d 193 (Tex. 2002) (citing Sci. Spectrum, Inc. v. Martinez, 941 S.W.2d 910 (Tex. 1997)); McConnell v. Southside Indep. Sch. Dist., 858 S.W.2d 337 (Tex. 1993); and City of Houston v. Clear Creek Basin Auth., 589 S.W.2d 671 (Tex. 1979): reinforced that summary-judgment reversals must be based on issues expressly presented to the trial court.
  • Ingram v. Deere, 288 S.W.3d 886 (Tex. 2009): invoked to caution that calling someone a “partner” (or, here, “managing partner”) may be descriptive, not legally operative.
  • Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen, 525 S.W.3d 671 (Tex. 2017): used to reject a “principal-agent fiduciary duty” theory where the necessary element of principal control is inconsistent with the plaintiff’s own “usurpation of control” narrative.
  • Historic “managing partner” duty cases: Huffington v. Upchurch, 532 S.W.2d 576 (Tex. 1976) and Smith v. Bolin, 271 S.W.2d 93 (Tex. 1954): discussed, but the Court noted modern statutory partnership duties and did not apply a heightened “managing partner” standard here.
  • Informal fiduciary duty cases: Meyer v. Cathey, 167 S.W.3d 327 (Tex. 2005) (quoting Associated Indem. Corp. v. CAT Contracting, Inc., 964 S.W.2d 276 (Tex. 1998)): referenced because Bertucci disclaimed reliance on an informal fiduciary relationship.

3. Limitations in fiduciary contexts

  • Berry v. Berry, 646 S.W.3d 516 (Tex. 2022) and Marcus & Millichap Real Est. Inv. Servs. of Nev. v. Triex Tex. Holdings, LLC, 659 S.W.3d 456 (Tex. 2023): cited by Watkins to argue that even fiduciary relationships do not eliminate a claimant’s diligence obligation.
  • Kinzbach Tool Co. v. Corbett-Wallace Corp., 160 S.W.2d 509 (Tex. 1942) and S.V. v. R.V., 933 S.W.2d 1 (Tex. 1996): supported the Court’s agreement with the court of appeals that a fiduciary’s disclosure obligations can lessen the plaintiff’s duty of inquiry and that concealment/assurances can create fact issues on accrual and discovery.

4. Evidence: court-appointed auditor and the Dead Man’s Rule

  • In re Bertucci, 590 S.W.3d 113 (Tex. App.—Austin 2019, orig. proceeding): procedural history on mandamus regarding the auditor report.
  • Lewis v. Foster, 621 S.W.2d 400 (Tex. 1981): stated the policy of the Dead Man’s Rule—preventing unfair advantage where the decedent cannot contradict testimony.
  • Fraga v. Drake, 276 S.W.3d 55 (Tex. App.—El Paso 2008, no pet.): used to define corroboration: evidence that “tend[s] to confirm and strengthen” and show probability of truth.
  • City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005): applied to reject an inference of “approval” from silence/inaction where circumstances are equally consistent with lack of knowledge.

B. Legal Reasoning

1. The new, practical briefing-waiver rule: do not forfeit derivative appeals over remediable defects

The opinion’s most consequential procedural holding is its insistence that appellate courts should not treat imperfect briefing as a categorical forfeiture where the brief—read fairly and in context—actually advances the substance of the disputed issues, and where any presentation deficiency is remediable through rebriefing tools.

The Court emphasized:

  • Intent and notice matter: Bertucci’s notice of appeal, docketing statement, and case styling showed an appeal was perfected both individually and derivatively, satisfying jurisdictional concerns (drawing on Walker v. Blue Water Garden Apartments and State ex rel. Durden v. Shahan).
  • Briefs are read holistically: Under Lion Copolymer Holdings, LLC v. Lion Polymers, LLC, the court examined headings and arguments to gauge whether derivative claims were being pressed. The Supreme Court found the brief did argue fiduciary duties and breaches owed to the entities and addressed standing to pursue derivative claims.
  • Even if insufficiently detailed, that is not “waiver” of the entire appeal: If an appellate court wants greater entity-by-entity specificity, Texas Rule of Appellate Procedure 38.9(b) allows the court to “require additional briefing,” and Rule 38.7 allows amended/supplemental briefing when justice requires.
  • Overly technical dismissals conflict with the right to appeal: The Court relied on Horton v. Stovall, Fredonia State Bank v. Gen. Am. Life Ins. Co., and Briscoe v. Goodmark Corp. to stress that remediable defects should not be fatal absent a reasonable opportunity to cure.

2. Fiduciary duty: the Court re-centers the dispute on proper plaintiff, proper duty, and preservation

The Court reinstated summary judgment against Bertucci’s individual fiduciary-duty claims for two reinforcing reasons:

  • Issue preservation in summary judgment practice: The court of appeals reversed based on a “control test” theory (citing Strebel v. Wimberly) that was not expressly presented to the trial court. Texas Rule of Civil Procedure 166a(c) forbids reversal on grounds not presented below, and the Court anchored that rule with Johnson v. Brewer & Pritchard, P.C., McConnell v. Southside Indep. Sch. Dist., and City of Houston v. Clear Creek Basin Auth..
  • Substantive mismatch between Watkins’s roles and a personal duty owed to Bertucci: Even if preserved, the Court rejected the attempt to transform entity-management conduct into a personal fiduciary obligation:
    • Corporate officer/director status generally creates duties to the corporation, not to co-owners personally (Ritchie v. Rupe).
    • Co-members of LLCs do not automatically owe each other formal fiduciary duties (Suntech Processing Sys., L.L.C. v. Sun Commc'ns, Inc.; Gadin v. Societe Captrade).
    • “Agency” framing failed because agency requires the agent be subject to the principal’s control, which conflicted with the “exclusive control/usurpation” narrative (Cmty. Health Sys. Prof'l Servs. Corp. v. Hansen).
    • Describing oneself to third parties as “managing partner” was not legally dispositive (Ingram v. Deere), particularly where Watkins explained it as administrative shorthand.

Critically, the Court treated the derivative pathway as the doctrinally appropriate vehicle for entity-level harms: if funds belonged to or were owed to the B-W entities, then duties and remedies would ordinarily run to the entities and be pursued derivatively. The Court took the parties at their word that, here, the alleged harm and remedies largely overlap, reducing any prejudice from rejecting an individual-duty theory.

3. Limitations: fiduciary concealment/assurances can create a jury question despite diligence doctrine

While acknowledging that fiduciary relationships do not “altogether absolve” diligence (Berry v. Berry; Marcus & Millichap Real Est. Inv. Servs. of Nev. v. Triex Tex. Holdings, LLC), the Court agreed with the court of appeals that the record contained competing evidence on when discovery should have occurred.

The Court highlighted facts tending to support delayed discovery and equitable tolling arguments: Watkins’s exclusive signing authority, alleged commingling, repeated assurances, refusal to provide records upon request, and alleged personal use of invested funds. In a fiduciary setting, the duty of full disclosure (Kinzbach Tool Co. v. Corbett-Wallace Corp.) and diminished duty of inquiry (S.V. v. R.V.) can make accrual and discovery intensely fact-specific—unsuitable for summary judgment on this record.

4. Evidence: (i) auditor report left for remand; (ii) Dead Man’s Rule applied strictly

  • Court-appointed accountant report: Although the Court expressed skepticism that an unverified report later admitted to contain “errors, mistakes, and incorrect assumptions” could be “conclusive” under Texas Rule of Civil Procedure 172, it declined to decide the issue because it was unnecessary to the current disposition and because Watkins conceded it was not presently conclusive and admissibility at a future trial was premature. Practically, this preserves room for robust challenge on remand.
  • Dead Man’s Rule (Texas Rule of Evidence 601(b)): The Court held Watkins could not defeat limitations and liability issues by testifying that the deceased expressly approved the transactions absent corroboration.
    • “Inaction” was not corroboration because it is equally consistent with lack of knowledge as with approval; City of Keller v. Wilson prohibits choosing between equally consistent inferences.
    • Reliance on documents containing Watkins’s statements did not mean the estate “called” Watkins to testify to oral statements under Rule 601(b)(3)(B), and in any event the cited materials went to knowledge, not approval.
    • The Court reiterated the fairness rationale from Lewis v. Foster and used Fraga v. Drake to define corroboration.

C. Impact

1. Appellate practice in Texas: waiver doctrine narrowed in application, rebriefing tools elevated

The decision strengthens a litigant-protective approach to briefing defects—especially in complex, multi-capacity appeals (individual + derivative). It signals that courts of appeals should:

  • distinguish between (a) truly absent arguments and (b) imperfectly framed or insufficiently granular arguments;
  • avoid disposing of claims by “form-over-substance” waiver when the appellee was not misled and the merits can be reached; and
  • use Texas Rule of Appellate Procedure 38.9(b) to request clarification rather than extinguish an appeal.

2. Business-entity litigation: reinforces the boundary between entity harms (derivative) and owner harms (individual)

The Court’s fiduciary-duty analysis underscores a recurring Texas theme: duties often run to the entity, not horizontally among owners, officers, directors, members, or limited partners—absent a preserved and legally supported theory (formal partnership duty, agency, or an “informal fiduciary” relationship that predates the transaction). This discourages plaintiffs from relying on generalized “he was a fiduciary” assertions and encourages precise pleading and summary-judgment issue presentation.

3. Summary judgment and preservation: a sharp warning to courts of appeals

The opinion is also a reminder that appellate courts may not rescue claims with new theories not presented in the trial court record under Rule 166a(c). This has systemic impact: summary judgment remains a “written grounds” regime, and reversal must track the issues actually joined below.

4. Probate-adjacent commercial disputes: Dead Man’s Rule retains real bite

By rejecting “silence equals corroboration,” the Court narrows a common end-run around Texas Rule of Evidence 601(b). In cases where a key actor dies mid-litigation, parties will need independent corroborating evidence (emails, third-party testimony, verified records) before they can attribute approving oral statements to the decedent.

IV. Complex Concepts Simplified

  • Derivative claim: A claim brought by an owner (shareholder/partner/member) on behalf of the business entity for harm done to the entity. Any recovery typically belongs to the entity.
  • Individual claim: A claim for harm done directly to the owner personally (not merely through reduced value of the entity).
  • Briefing “waiver” / forfeiture: Losing an appellate issue because the brief does not adequately present argument and citations. This decision emphasizes that minor/remediable defects should not automatically forfeit review, and courts can request rebriefing.
  • Rule 38.9(b) supplemental briefing: A procedural tool allowing an appellate court to order additional briefing if the case is not properly presented—preferred over dismissing issues on technicalities when the merits are reachable.
  • Dead Man’s Rule (Tex. R. Evid. 601(b)): In suits involving a decedent’s estate, a party generally cannot testify about the decedent’s oral statements unless corroborated or unless the opponent calls the party to testify about them—designed to prevent one-sided testimony the decedent cannot dispute.
  • Limitations + discovery in fiduciary settings: Even if a claimant must be reasonably diligent, a fiduciary’s duty to disclose and possible concealment/assurances can make “when should you have discovered it?” a fact question for the jury.

V. Conclusion

The Court’s core contribution is procedural and practical: Texas appellate courts should not treat remediable briefing defects as a forfeiture of derivative claims where the brief, fairly read, advances the dispute and the appellee is not misled; instead, courts should reach the merits or request supplemental briefing. Substantively, the Court tightened the link between the plaintiff’s theory and the duty alleged, reinstating summary judgment on an individual fiduciary-duty claim where the theory was not preserved and did not fit Texas entity-duty principles. Finally, it reaffirmed that limitations in fiduciary disputes often turns on fact questions and that the Dead Man’s Rule cannot be bypassed by equating silence with corroboration.