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

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

By David Fowler Johnson on June 18, 2019

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 statute-of-limitations defense had been waived by provisions in the loan documents. The guarantor argued that a statute-of-limitations defense can only…

Texas Fiduciary Litigator

Fifth Circuit Affirmed Judgment Against A Company’s Former Officer For Breach Of Fiduciary Duty

By David Fowler Johnson on June 12, 2019

In Ebert v. Dejoria (In re Latitude Sols., Inc.), a bankruptcy trustee sued a company’s former officers for breach of fiduciary duty. No. 18-10382, 2019 U.S. App. LEXIS 13060 (5th Cir. April 30, 2019). The trustee asserted that LSI was a sham company set up to fail from the outset and a vehicle for the officers to participate in a securities-fraud scheme known as “pump-and-dump,” while the officers claimed LSI was legitimately founded to develop…

Texas Fiduciary Litigator

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

By David Fowler Johnson on June 12, 2019

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 distributions to the trustee, when the trustee was refusing to make distributions to the beneficiary. The trial court granted summary…

Texas Fiduciary Litigator

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

By David Fowler Johnson on June 6, 2019

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 within the four corners of the will. The court should focus not on “what the testatrix intended to write, but…

Texas Fiduciary Litigator

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

By David Fowler Johnson on June 6, 2019

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 the wife and the heirs, the wife moved to dismiss the heirs and their pleadings for lack of standing because…

Texas Fiduciary Litigator

Court Affirms Finding Of Undue Influence Regarding Execution Of Will

By David Fowler Johnson on May 25, 2019

In In re Estate of Russey, the decedent was going through a divorce and signed a will. No. 12-18-00079-CV, 2019 Tex. App. LEXIS 1536 (Tex. App.—Tyler February 28, 2019, no pet. history). She died before the divorce was finalized. Her children took their father’s side on some issues. During this time, a sister of a friend of the decedent “swooped in,” befriended the decedent, began taking her to her medical appointments and to the hospital,…

Texas Fiduciary Litigator

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

By David Fowler Johnson on May 19, 2019

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 letters testamentary to the daughters as co-independent executors, and denied the son’s application to admit the codicil to probate. The…

Texas Fiduciary Litigator

Federal Court Holds That Trust Beneficiaries’ Claims Against Brokerage Firm Should Not Be Compelled To Arbitration

By David Fowler Johnson on May 11, 2019

In Freeman v. Fid. Brokerage Servs., LLC, the mother of the plaintiffs executed a living trust agreement. No 3:18-CV-0947-G, 2019 U.S. Dist. LEXIS 34694 (N.D. Tex. March 5, 2019). Upon her death, the trust agreement directed that the trust assets were to be divided and allocated into trusts for the benefit of her husband if he was still living and for the benefit of the plaintiffs. Upon the death of the husband, his trust would…

Texas Fiduciary Litigator

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

By David Fowler Johnson on May 11, 2019

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 court signed an order appointing the temporary administrator and then signed a subsequent order authorizing the administrator to settle the…

Texas Fiduciary Litigator

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

By David Fowler Johnson on May 5, 2019

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 investment that he created by allowing the use of trust funds. They all agreed, and the trustee transferred a total…

David Fowler Johnson

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

Fifth Circuit Affirmed Judgment Against A Company’s Former Officer For Breach Of Fiduciary Duty

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

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

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

Court Affirms Finding Of Undue Influence Regarding Execution Of Will

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

Federal Court Holds That Trust Beneficiaries’ Claims Against Brokerage Firm Should Not Be Compelled To Arbitration

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

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

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