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 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

By David Fowler Johnson on August 17, 2019

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 of the property to Gibbs’ wife during a divorce proceeding. Bell sued Gibbs’s estate and his wife’s estate for a…

Texas Fiduciary Litigator

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

By David Fowler Johnson on August 17, 2019

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 testamentary in character as it appointed the decedent’s office manager as an executor. The proponent appealed. The court of appeals…

Texas Fiduciary Litigator

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

By David Fowler Johnson on July 24, 2019

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 used the undefined term “descendants” in discussing beneficiaries. After the settlors’ death, the trustee filed suit to declare that the…

Texas Fiduciary Litigator

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

By David Fowler Johnson on July 12, 2019

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 a manufacturer to pay down a debt owed by the seller. The seller then went into bankruptcy. The purchaser then…

Texas Fiduciary Litigator

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

By David Fowler Johnson on July 3, 2019

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 bond to stay execution of the judgment. The court of appeals affirmed this ruling: Section 351.002 provides that an appeal…

Texas Fiduciary Litigator

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

By David Fowler Johnson on July 3, 2019

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 lacks standing to bring a derivative claim for the Joint Venture Board’s alleged breach of fiduciary duty or ultra vires…

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…

David Fowler Johnson

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

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

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

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

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

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

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

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