Photo of 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

In Klinek v. Luxeyard, Inc., a company sued its majority shareholder in a suit for breach of fiduciary duty arising from a pump-and-dump scheme and later settled that claim. No. 14-17-00899-C, 2019 Tex. App. LEXIS 9421 (Tex. App.—Houston [14th Dist.] October 29, 2019, no pet. history). The company then sued a third party for

In Budri v. FirstFleet, Inc., an employee sued his employer and supervisor for a number of causes of action, including a claim for breach of fiduciary duty. No. 3:19-CV-0409-N-BH, 2019 U.S. Dist. LEXIS 188251 (N.D. Tex. September 20, 2019). The federal magistrate recommended dismissing the breach of fiduciary duty claim because there were no

In Melton v. Waddell, a sister sued her brother for breach of fiduciary duty for misapplying funds in a joint account and not properly allocating revenues from real estate that they owned as tenants in common. No. 07-18-00105-CV, 2019 Tex. App. LEXIS 9531 (Tex. App.—Amarillo October 30, 2019, no pet. history). The brother filed

In In re Estate of Ethridge, a testatrix signed a will that provided that “all my personal effects” would be devised to her nephew in law and that her half interest in a home went to another person. No. 11-17-00291-CV, 2019 Tex. App. LEXIS 9564 (Tex. App.—Eastland October 31, 2019, no pet.). The trial

Selected by Texas Bar Today as a “Top 10 Blog Post”

In In re Alexander, a beneficiary filed suit against the trustee based on multiple allegations of breach of fiduciary duty, including an allegation that the trustee attempted to transfer the trustee position to successors in violation of the

In Austin v. Austin, after the decedent passed, his daughters probated an April 2016 will, and his wife then sought to probate a December 2016 will. No. 03-18-00678-CV, 2019 Tex. App. LEXIS 8255 (Tex. App.—Austin September 12, 2019, no pet. history). The daughters alleged that the December 2016 will was a forgery. After an

In In re Topletz, the trial court ordered a party jailed for civil contempt for failing to comply with an order to produce documents from a family-run trust during post-judgment discovery in a suit against him individually where the party contended the documents were not within his possession, custody, or control. No. 05-19-00327-CV, 2019

In Hoffpauir v. Cormier, parties sought to modify the terms of a trust agreement under Texas Property Code section 112.054(a) to extend the trust’s term. No. 09-18-00358-CV, 2019 Tex. App. LEXIS 8473 (Tex. App.—Beaumont August 21, 2019, no pet. history). After an evidentiary hearing, the trial court granted the modification. A pro se beneficiary

In In the Estate of Sakima, the probate court appointed a decedent’s sister as his administrator in 2011. No. 05-18-01288-CV, 2019 Tex. App. LEXIS 8209 (Tex. App.—Dallas September 10, 2019, no pet. history). After multiple show-cause notices, the probate court removed the administrator in 2018. The court held that an estate with a foreclosed home and a $30,000 bank account should not still be open after seven years. There was also a $8,000 check had not been negotiated, and the administrator filed incorrect accountings. The administrator appealed.

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