Texas Fiduciary Litigator

Texas Fiduciary Litigator

The Intersection of Texas Courts and the Fiduciary field

David Fowler Johnson

David Fowler Johnson dfjohnson@winstead.com 817.420.8223 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
  • Seeking emergency relief staying trial court's orders pending appeal or mandamus.
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 ReviewSt. Mary's Law JournalSouth Texas Law Review and Tennessee Law Review. Representative Experience
  • Civil Litigation and Appellate Law

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Texas Court Held That A Trust Beneficiary Could Raise A Claim Against A Trustee’s Estate For An Interest In Trust Property And A Constructive Trust

In the Estate of Gibbs, Bell transferred money to Gibbs for the purchase of real property and a trust agreement was executed that clarified that they owned the property equally. No. 02-18-00086-CV, 2019 Tex. App. LEXIS 4452 (Tex. App.—Fort Worth May 30, 2019, no pet. history). Later, Bell learned that Gibbs had transferred Bell’s half… Continue Reading

Texas Court Concludes There Was A Fact Question As To Whether A Hand-Written Document Was A Will

In In re Estate of Silverman, a trial court granted a will contestant’s summary judgment and denied a handwritten document’s admission to probate as the last will of the decedent. No. 14-18-00256-CV, 2019 Tex. App. LEXIS 4579 (Tex. App.—Houston [14th Dist.] June 4, 2019, no pet. history). The proponent argued that the document could be… Continue Reading

In A Suit To Reform A Trust, A Texas Court Holds That There Was A Fact Issue On The Settlors’ Intent And Remanded For A Fact Finding

In In re Ignacio G. & Myra A. Gonzales Trust, a couple formed a trust and named their daughter as the trustee. No. 06-19-00014-CV, 2019 Tex. App. LEXIS 4648 (Tex. App.—Texarkana June 6, 2019, no pet. history). The trust identified the settlors’ children as the two children that they had together. However, the trust then… Continue Reading

Because Fraud By Nondisclosure Cannot Occur After A Transaction Is Consummated, Employees Generally Do Not Owe A Duty To Disclose Their Employers’ Breaches of Contract To Third Parties

In CLC Roofing v. Helzer, a roofer purchased shingles from a seller and stored them on the seller’s property. No. 02-17-00229-CV, 2019 Tex. App. LEXIS 5927 (Tex. App.—Fort Worth July 11, 2019, no pet. history). Six months after the relevant purchase was consummated, the seller, who was in financial trouble, returned the buyer’s shingles to… Continue Reading

Estate Representative May Not Need To Post A Bond To Supersede A Judgment in Texas

In Wheatley v. Farley, a trial court entered an order awarding relief to both parties, and both parties appealed. No. 08-18-00106-CV, 2019 Tex. App. LEXIS 4626 (Tex. App.—El Paso June 5, 2019, no pet. history). One party was a dependent administrator, and the trial court ruled that he did not have to post a supersedeas… Continue Reading

Federal District Court Holds That A Former Director Of Nonprofit Did Not Have Standing To Sue For The Board’s Breach Of Fiduciary Duty And That Employers Do Not Owe Fiduciary Duties To Employees

In Garcia v. Communities in Schools of Brazoria County, a director sued a nonprofit’s board for breach of fiduciary duty arising from his removal. 2019 U.S. Dist. LEXIS 97017 (S. D. Tex. June 10, 2019). The board alleged that he did not have standing to bring such a claim, and the district court agreed: Garcia… Continue Reading

Texas Supreme Court Holds That Contractual Clauses That Waive The Statute Of Limitations May Be Enforceable

In Godoy v. Wells Fargo Bank, N.A., a bank sued a guarantor to recover on a deficiency following a foreclosure sale. No. 18-0071, 2019 Tex. LEXIS 443 (Tex. May 10, 2019). The defendant guarantor alleged that any such claim was barred by the two-year statute of limitations. The lender argued that the guarantor waived the… Continue Reading

In A Trust Case, A Court Affirms Judgment Against A Beneficiary/Limited Partner’s Aiding-And-Abetting-Breach-Of-Fiduciary-Duty Claim For Distributions To A Trustee/Limited Partner

In Marshall v. Ribosome L.P., a beneficiary of a trust sued a limited partnership of which the trustee was a partner. No. 01-18-00108-CV, 2019 Tex. App. LEXIS 3787 (Tex. App.—Houston [1st Dist.] May 9, 2019, no pet. history). The beneficiary asserted that the limited partnership aided and abetted a breach of fiduciary duty by making… Continue Reading

Texas Statutes Now Allow A Court To Modify Or Reform An Unambiguous Will

I. Introduction Historically, Texas courts could not resort to extrinsic evidence to construe an unambiguous will. San Antonio Area Foundation v. Lang, 35 S.W.3d 636 (Tex. 2000). The Texas Supreme Court stated as follows: In construing a will, the court’s focus is on the testatrix’s intent. This intent must be ascertained from the language found… Continue Reading

Court Held That Heirs Had Standing To Participate In Estate Even After They Received The Assets They Were Due

In In re Estate of Daniels, after the decedent’s death, his wife and his other heirs filed competing applications for independent administration of his estate. No. 06-18-00049-CV, 2019 Tex. App. LEXIS 2905 (Tex. App.—Texarkana April 11, 2019). After the homestead property was set aside and the temporary administrator conveyed the interests in that property to… Continue Reading

Codicil Was Properly Rejected Because It Did Not Adequately Refer To Last Will And Testament

In In the Estate of Hargrove, two daughters offered their mother’s last will and testament dated in 2017 for probate. No. 04-18-00355-CV, 2019 Tex. App. LEXIS 1703 (Tex. App.—San Antonio March 6, 2019, no pet. history). Their brother offered a subsequent codicil. After an evidentiary hearing, the trial court admitted the will to probate, issued… Continue Reading

Trial Court Had Jurisdiction To Appoint A Temporary Administrator After A Will Contest Had Been Filed Regarding A Will That Had Been Probated As A Muniment of Title

In Chabot v. Estate of Sullivan, the decedent’s attorney probated a holographic will as a muniment of title. No. 03-17-00865-CV, 2019 Tex. App. LEXIS 2145 (Tex. App.—Austin March 20, 2019, no pet.). A claimant then asserted a claim that the decedent sexually abused him. The tort claimant and the decedent’s sister filed will contests. The… Continue Reading

Breach Of Fiduciary Duty Claim Against Trustee Based On Self-Dealing Real Estate Investment Was Dismissed Due To Limitations, Quasi-Estoppel, And An Exculpatory Clause, But The Attorney’s Fees Award Against The Beneficiary Was Reversed Where The Award Was Not Equitable

In Goughnour v. Patterson, a beneficiary sued a trustee based on a failed real estate investment. No. 12-17-00234-CV, 2019 Tex. App. LEXIS 1665 (Tex. App.—Tyler March 5, 2019, no pet. history). In 2007, the trustee of four trusts invited his mother, the primary beneficiary, and his siblings, also beneficiaries, to participate in a real estate… Continue Reading

OCC Announces That It Will Consider Rule Changes On Fiduciary Capacity and Non-Fiduciary Custody Activities

The OCC recently issued an advance notice of proposed rulemaking  (ANPR) regarding the scope of activities that are fiduciary in nature, as well as the requirements of non-fiduciary custody activities of national banks, federal thrifts and federal branches of foreign banks. In particular, the OCC is considering amending the definition of “fiduciary capacity” to include trust-related… Continue Reading

Court Found Trial Court Had Jurisdiction To Appoint Temporary Administrator Where A Will Contest Was Filed From A Muniment of Title

In Chabot v. Estate of Sullivan, the decedent’s attorney probated a holographic will as a muniment of title. No. 03-17-00865-CV, 2019 Tex. App. LEXIS 2145 (Tex. App.—Austin March 20, 2019, no pet.). A claimant then asserted a claim that the decedent sexually abused him. The tort claimant and the decedent’s sister filed will contests. The… Continue Reading

Federal District Court Refuses To Dismiss Aiding And Abetting Breach Of Fiduciary Duty Claim Against A Law Firm

In Milligan v. Salamone, the Greenberg Taurig lawfirm represented the bankrupt company when it sued a president and board member. No. 1:18-CV-327-RP, 2019 U.S. Dist. LEXIS 41009 (W.D. Tex. March 14, 2019). Greenberg drafted an agreement that would cancel the president’s employment contract, release him from his non-competition and non-solicitation obligations, and promise to pay… Continue Reading

The Texas Supreme Court Holds That The Only Consideration In Probating A Will After The Four-Year Limitations Period Is Evidence Of The Applicant’s Default

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

Texas Supreme Court Holds That Conspiracy Theories Have the Same Statute Of Limitations As Their Underlying Torts

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

Texas Supreme Court Holds That A Fraud-By-Nondisclosure Claim Can Apply Outside Of A Fiduciary Or Confidential Relationship

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

Court Holds That A “Gun Trust” Can Hold Other Assets

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

Court Holds That Testator’s Granddaughter Was A Beneficiary Of The Will

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
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