David maintains an active trial and appellate practice and has consistently worked on financial institution litigation matters throughout his career. David is the primary author of the Texas Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary field in Texas. Read More
David's financial institution experience includes (but is not limited to): breach of contract, foreclosure litigation, lender liability, receivership and injunction remedies upon default, non-recourse and other real estate lending, class action, RICO actions, usury, various tort causes of action, breach of fiduciary duty claims, and preference and other related claims raised by receivers.
David also has experience in estate and trust disputes including will contests, mental competency issues, undue influence, trust modification/clarification, breach of fiduciary duty and related claims, and accountings. David's recent trial experience includes:
Representing a bank in federal class action suit where trust beneficiaries challenged whether the bank was the authorized trustee of over 220 trusts;
Representing a bank in state court regarding claims that it mismanaged oil and gas assets;
Representing a bank who filed suit in probate court to modify three trusts to remove a charitable beneficiary that had substantially changed operations;
Represented an individual executor of an estate against claims raised by a beneficiary for breach of fiduciary duty and an accounting; and
Represented an individual trustee against claims raised by a beneficiary for breach of fiduciary duty, mental competence of the settlor, and undue influence.
David is one of twenty attorneys in the state (of the 84,000 licensed) that has the triple Board Certification in Civil Trial Law, Civil Appellate and Personal Injury Trial Law by the Texas Board of Legal Specialization.
Additionally, David is a member of the Civil Trial Law Commission of the Texas Board of Legal Specialization. This commission writes and grades the exam for new applicants for civil trial law certification.
David maintains an active appellate practice, which includes:
Appeals from final judgments after pre-trial orders such as summary judgments or after jury trials;
Interlocutory appeals dealing with temporary injunctions, arbitration, special appearances, sealing the record, and receiverships;
Original proceedings such as seeking and defending against mandamus relief; and
For example, David was the lead appellate lawyer in the Texas Supreme Court in In re Weekley Homes, LP, 295 S.W.3d 309 (Tex. 2009). The Court issued a ground-breaking opinion in favor of David’s client regarding the standards that a trial court should follow in ordering the production of computers in discovery.
David previously taught Appellate Advocacy at Texas Wesleyan University School of Law located in Fort Worth. David is licensed and has practiced in the U.S. Supreme Court; the Fifth, Seventh, and Eleventh Federal Circuits; the Federal District Courts for the Northern, Eastern, and Western Districts of Texas; the Texas Supreme Court and various Texas intermediate appellate courts. David also served as an adjunct professor at Baylor University Law School, where he taught products liability and portions of health law. He has authored many legal articles and spoken at numerous legal education courses on both trial and appellate issues. His articles have been cited as authority by the Texas Supreme Court (twice) and the Texas Courts of Appeals located in Waco, Texarkana, Beaumont, Tyler and Houston (Fourteenth District), and a federal district court in Pennsylvania. David's articles also have been cited by McDonald and Carlson in their Texas Civil Practice treatise, William v. Dorsaneo in the Texas Litigation Guide, and various authors in the Baylor Law Review, St. Mary's Law Journal, South Texas Law Review and Tennessee Law Review.
In Ferreira v. Butler, a husband and wife divorced, and the husband married a second wife. No. 17-0901, 2019 Tex. LEXIS 375 (Tex. April 12, 2019). The second wife died, and the husband never probated her will, which left everything to him. Nine years later, the husband died and his will left most of his… Continue Reading
Joint liability for breach of fiduciary duty claims is a rather confusing area of law in Texas. Texas courts have discussed three different theories that allow for joint liability: knowing participation in breach of fiduciary duty, aiding and abetting breach of fiduciary duty, and conspiracy. There is a claim for knowing participation in Texas. See… Continue Reading
In Bombardier Aero. Corp. v. Spep Aircraft Holdings, a plaintiff who had purchased an aircraft sued the defendant for fraud associated with representations regarding whether the aircraft was new or used. No. 17-0578, 2019 Tex. LEXIS 101 (Tex. February 1, 2019). The plaintiff later found that parts of the aircraft were used, and sued for… Continue Reading
In Estate of Keener, two heirs of a trust settlor filed an application to declare heirship. No. 13-18-00007-CV, 2019 Tex. App. LEXIS 1222 (Tex. App.—Corpus Christi February 21, 2019, no pet. history). The beneficiary of the trust filed a plea in intervention in the heirship proceeding, but the trial court denied his intervention. The trust… Continue Reading
In McDaniel v. Meador, parties sued for declaratory relief regarding whether a granddaughter was a beneficiary of a will. No. 01-18-00041-CV, 2019 Tex. App. LEXIS 1315 (Tex. App.—Houston [1st Dist.] February 21, 2019, no pet. history). The will stated that the testator left her estate: “(a) To those of my children (JASPER “LEE” MCDANIEL, JR.,… Continue Reading
In Fletcher v. Edward Jones Trust Co., a party sued a trust company for inappropriately distributing funds from an account, and the trial court granted the trust company’s motion to compel the dispute to arbitration. No. 11-19-00017-CV, 2019 Tex. App. LEXIS 1280 (Tex. App.—Eastland February 21, 2019, Decided; February 21, 2019, no pet. history). The… Continue Reading
In Sullivan v. Hatchett, a husband executed a will giving his wife a life estate in his property. No. 07-17-00296-CV, 2019 Tex. App. LEXIS 980 (Tex. App.—Amarillo February 11, 2019, no pet. history). The will then provided: THIRD: In the event [Juanita] should predecease me, or if we should die in or as a result… Continue Reading
In Liberty Bankers Life Ins. Co. v. Lenhard, a company sued its former chief executive officer and shareholder for breaching fiduciary duties and fraudulent statements regarding an agreement to transfer his stock in the company. No. 3:16-CV-2417-N, 2019 U.S. Dist. LEXIS 19390 (N.D. Tex. February 6, 2019). The defendant filed a motion to dismiss the… Continue Reading
In Bombardier Aero. Corp. v. Spep Aircraft Holdings, a plaintiff who had purchased an aircraft sued the defendant for fraud associated with representations regarding whether the aircraft was new or used. No. 17-0578, 2019 Tex. LEXIS 101 (Tex. February 1, 2019). The purchase agreement stated: “Flexjet will not be liable to either customer for any… Continue Reading
In Compass Bank v. Calleja-Ahedo, an identity thief drained the plaintiff’s bank account through a series of fraudulent transactions in 2012 and 2013, and the plaintiff sued his bank to recover the stolen funds. No. 17-0065, 2018 Tex. LEXIS 1314 (Tex. December 21, 2018). The trial court granted summary judgment for the bank under Section… Continue Reading
In Herring v. Am. Paper & Janitorial Prods., the plaintiff was a subcontractor who provided janitorial services for a bank and was also a depositor of the bank. No. H-17-3474, 2018 U.S. Dist. LEXIS 215765 (S.D. Tex. December 24, 2018). After the plaintiff’s representatives were found stealing food after a party, the plaintiff’s contract was… Continue Reading
Court Holds That There Was Insufficient Evidence To Establish That Account Beneficiary Designations Were Executed As A Result Of Undue Influence In Fielding v. Tullos, an administrator of a decedent’s estate brought claims against the decedent’s housekeeper for undue influence and other related claims arising from the execution of new account beneficiary designations for certain… Continue Reading
In Cortes v. Wendl, an elderly woman signed a deed conveying her mineral rights to two individuals. No. 06-17-00121-CV, 2018 Tex. App. LEXIS 4457 (Tex. App.—Texarkana June 20, 2018, no pet.). When the woman’s nurse and friend learned of the transaction, she obtained a power of attorney and filed a lawsuit on the woman’s behalf,… Continue Reading
In Thunder Patch II, LLC v. JPMorgan Chase Bank, N.A., plaintiffs filed suit against a trustee in state court seeking a declaration regarding the enforceability of a mineral lease, and the trustee removed the case to federal court based on diversity of citizenship. No. 5-18-CV-00629-OLG-RBF, 2018 U.S. Dist. LEXIS 207696 (W.D. Tex. December 10, 2018).… Continue Reading
In American Bank, N.A. v. Moorehead Oil & Gas, Inc., plaintiffs (trustees and beneficiaries) filed suit to determine the value of ownership interests in corporate stock under section 10.361 of the Texas Business Organizations Code. No-13-17-00641-CV, 2018 Tex. App. LEXIS 9703 (Tex. App—Corpus Christi November 29, 2018, no pet. history). The trial court granted summary… Continue Reading
In Delgado v. Garza, the plaintiffs sued for breach of a warranty of title, trespass to try title, and other related claims all stemming from a land transaction between an ancestor of the Salinases and an ancestor of the Garzas. No. 13-15-00344-CV, 2018 Tex. App. LEXIS 9619 (Tex. App.—Corpus Christi November 27, 2018, no pet.… Continue Reading
In Estate of Luce, the court of appeals affirmed a trial court’s admitting a will to probate where the decedent did not personally sign it and only communicating his desires by blinking. No. 02-17-00097-CV, 2018 Tex. App. LEXIS 9341 (Tex. App.—Fort Worth November 15, 2018, no pet. history). The testator was in a serious accident… Continue Reading
In In re Macy Lynne Quintanilla Trust, a settlor created three trusts for his children in 2014. No. 04-17-00753-CV2018 Tex. App. LEXIS 8223 (Tex. App.—San Antonio October 10, 2018, no pet. history). The trust agreements named Perry as trustee and West as trust protector. The trust agreements gave the trust protector the power to remove… Continue Reading
In Fletcher v. Whitaker, a brother withdrew $25,000 from a joint bank account while the owner of the funds (decedent) was still alive. No. 02-17-00138-CV, 2018 Tex. App. LEXIS 8329 (Tex. App.—Fort Worth October 11, 2018, no pet. history). The parties to the joint account were the decedent and his sister in law. The brother… Continue Reading
In Gilmore v. Rotan, a testamentary trust’s beneficiaries sued the trustees in 2015 for making a transfer of trust property in 2003 that was evidenced by a deed filed in 2010. No. 11-16-00253-CV, 2018 Tex. App. LEXIS 7705 (Tex. App.—Eastland September 20, 2018, no pet. history). The beneficiaries claimed that the trustees engaged in self-dealing… Continue Reading
In In the Interest of K.K.W., an ex-wife sued an ex-husband and the trustee of a trust that they created for breaches of fiduciary duty and sought to remove the trustee, among other claims, arising out of the trustee’s alleged unfair distribution of trust assets. No. 05-16-00795-CV, 2018 Tex. App. LEXIS 6539 (Tex. App.—Dallas August… Continue Reading
In Cruz v. Ghani, a limited partner sued a general partner over breach of fiduciary duty claims arising from, among other allegations, that the general partner should not have compensated himself from the business in addition to regular distributions. No. 05-17-00566-CV, 2018 Tex. App. LEXIS 6557 (Tex. App.—Dallas August 20, 2018, no pet. history). The… Continue Reading
In Graff v. 2920 Park Grove Venture, Ltd., an executor was sued after selling estate real estate because the executor allegedly sold the property for less than fair market value. No. 05-16-01411-CV, 2018 Tex. App. LEXIS 4266 (Tex. App—Dallas June 13, 2018, no pet. history). Among other claims and arguments, the plaintiff alleged that the… Continue Reading
In Pennington v. Fields, the majority of shareholders of a closely held business forced the buy-out of the minority shareholder and litigation ensued. No. 05-17-00321-CV, 2018 Tex. App. LEXIS 6601 (Tex. App.—Dallas August 21, 2018, no pet. history). Later, the minority shareholder sued the majority shareholder’s attorney and alleged that he committed legal malpractice by,… Continue Reading