David Fowler Johnson

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 Review, St. Mary's Law Journal, South Texas Law Review and Tennessee Law Review.

Representative Experience

Civil Litigation and Appellate Law

Firm/Organization: Winstead PC

Blogs: Texas Fiduciary Litigator, Winstead Business Divorce

Latest Articles

Texas Fiduciary Litigator

Court Affirms Contempt Order Based On A Beneficiary’s Refusal To Produce Trust Documents, Holding That The Beneficiary Had A Right To Obtain And Produce Those Documents

By David Fowler Johnson on October 17, 2019

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 Tex. App. LEXIS 8249 (Tex. App.—Dallas September 11, 2019, original proceeding). The party was a beneficiary of a trust that provided…

Texas Fiduciary Litigator

Beneficiary Waived Appeal From Modification Of Trust By Failing To Obtain The Reporter’s Record

By David Fowler Johnson on October 17, 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 appealed but failed to have the reporter’s record prepared. The court of appeals summarily affirmed due to an inadequate record. The…

Texas Fiduciary Litigator

Texas Court Affirms Removal Of Administrator For Failing To Properly Administer Estate

By David Fowler Johnson on October 2, 2019

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…

Texas Fiduciary Litigator

Texas Court Compels A Limited Partner’s Employment And Defamation Claims To Arbitration Due To The Partnership Agreement’s Arbitration Clause

By David Fowler Johnson on October 2, 2019

In Gray vs. Ward, Ward and Gray started a limited partnership where Ward was a limited partner and Gray was a limited partner and the manager of the general partner. No. 05-18-00266-CV, 2019 Tex. App. LEXIS 6992 (Tex. App.—Dallas August 9, 2019, no pet.). Ward was also an employee of the partnership, but there was no written employment agreement. Ward wanted to exit the relationship, and the parties had a dispute concerning the amount to…

Texas Fiduciary Litigator

Trial Court Lacked Jurisdiction To Alter Its Previous Probate Order, and An Administrator Waived Any Challenge To A Damages Finding

By David Fowler Johnson on September 17, 2019

In In the Estate of Brazda, the trial court found an administrator guilty of neglecting to timely distribute the property and ordered the administrator to pay one of the heir’s damages for the neglect. No. 01-18-00324-CV, 2019 Tex. App. LEXIS 5924 (Tex. App.—Houston [1st Dist.] July 11, 2019, no pet. history). The administrator moved for reconsideration of the damages order, the trial court later entered written orders reconsidering and removing the personal liability against the…

Texas Fiduciary Litigator

Court Holds That A Trustee Has To Serve Until Properly Replaced

By David Fowler Johnson on September 17, 2019

In Waldron v. Susan R. Winking Trust, a daughter was a beneficiary of a trust set up by her parents. No. 12-18-00026-CV, 2019 Tex. App. LEXIS 5867 (Tex. App.—Tyler July 10, 2019, no pet. history). The original trustee resigned, and the trust document provided: Successor. If the original trustee fails or ceases to serve for any reason, then Southside Bank, Tyler, Texas, shall be successor trustee. If this or any other successor trustee fails or…

Texas Fiduciary Litigator

Statute of Limitations Barred Estate Representative’s Claim To Void Beneficiary Designations

By David Fowler Johnson on September 4, 2019

In Sanders v. Hathaway, the decedent’s estate’s representative sued her sister for various claims arising from the decedent’s beneficiary designation changes, deed transfers, and accounts payable on death changes that benefited the sister. No. 01-18-00661-CV, 2019 Tex. App. LEXIS 5708 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet. history). The sister alleged that the claims were barred by the statute of limitations. The trial court granted summary judgment for the sister, and the representative…

Texas Fiduciary Litigator

Court Holds That Economic Loss Rule Bars Conspiracy To Breach Fiduciary Duty Claims

By David Fowler Johnson on September 4, 2019

In Shopoff Advisors, LP v. Atrium Circle, GP, the buyer and seller to a real estate transaction sued each other. No. 04-18-00438-CV, 2019 Tex. App. LEXIS 5764 (Tex. App.—San Antonio July 10, 2019, no pet. history). The plaintiff alleged that the defendant conspired with the escrow agent, who owed the plaintiff a fiduciary duty. The defendant filed a SLAPP motion, which the trial court denied. The Texas Citizens Participation Act (“TCPA”) is also known as…

Texas Fiduciary Litigator

Court Holds That A Testamentary Trust Did Not Fail Because The Primary Beneficiary Predeceased The Decedent

By David Fowler Johnson on August 25, 2019

In In re Estate of Moore, a decedent executed a will that provided that the residuary of his estate would be held in trust for his mother, and such trust would terminate on her death with the assets then passing to certain charitable remainder beneficiaries. No. 05-18-00019-CV, 2019 Tex. App. LEXIS 3871 (Tex. App.—Dallas May 14, 2019, no pet. history). The decedent’s mother predeceased him. The decedent’s sole heir then alleged that the trust failed…

Texas Fiduciary Litigator

Court Holds That The Cost To Create A Distributor List Was Sufficient Evidence of Damages for A Breach of Fiduciary Duty Claim

By David Fowler Johnson on August 25, 2019

In In re Amerisciences, a bankruptcy trustee sued a bankrupt company’s former officers for breach of fiduciary duty regarding the theft of trade secrets. No. 18-20394, 2019 U.S. App. LEXIS 20635 (5th Cir. July 11, 2019). The jury found for the trustee, and the officers appealed. The court of appeals addressed whether there was sufficient evidence of damages to support the breach of fiduciary duty claim: Appellants’ last argument for judgment as a matter of…

David Fowler Johnson

Court Affirms Contempt Order Based On A Beneficiary’s Refusal To Produce Trust Documents, Holding That The Beneficiary Had A Right To Obtain And Produce Those Documents

Beneficiary Waived Appeal From Modification Of Trust By Failing To Obtain The Reporter’s Record

Texas Court Affirms Removal Of Administrator For Failing To Properly Administer Estate

Texas Court Compels A Limited Partner’s Employment And Defamation Claims To Arbitration Due To The Partnership Agreement’s Arbitration Clause

Trial Court Lacked Jurisdiction To Alter Its Previous Probate Order, and An Administrator Waived Any Challenge To A Damages Finding

Court Holds That A Trustee Has To Serve Until Properly Replaced

Statute of Limitations Barred Estate Representative’s Claim To Void Beneficiary Designations

Court Holds That Economic Loss Rule Bars Conspiracy To Breach Fiduciary Duty Claims

Court Holds That A Testamentary Trust Did Not Fail Because The Primary Beneficiary Predeceased The Decedent

Court Holds That The Cost To Create A Distributor List Was Sufficient Evidence of Damages for A Breach of Fiduciary Duty Claim

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