In In re Tipps, an elderly woman’s son became trustee of a trust due to her incompetency, and the son and his brother went to a mediation concerning a guardianship proceeding and other issues. No. 05-14-01495-CV, 2016 Tex. App. LEXIS 4014 (Tex. App.—Dallas April 15, 2016, no pet. history). The parties agreed that a corporate trustee would be a successor trustee, and the court entered an order approving of same. Later, disputes arose, and the successor corporate trustee filed a motion to resign and to reappoint the son as a successor trustee. After a hearing, the trial court granted the motion, and the brother appealed.

The first issue the court of appeals addressed was its jurisdiction to review the order. The son argued that no statute makes the order a final judgment or grants the court of appeals jurisdiction to review the order and that the trial court’s order failed to dispose of the brother’s claim for reimbursement of ongoing expenses related to his visits to his mother’s nursing home and the repair of her car. The court stated:

Generally, appeals may be taken only from final judgments. Probate proceedings are an exception to the “one final judgment” rule; in such cases, “multiple judgments final for purposes of appeal can be rendered on certain discrete issues.” Not every interlocutory order in a probate case is appealable, however, and determining whether an otherwise interlocutory probate order is final enough to qualify for appeal has proved difficult.

Id. The court then considered whether any statute granted an immediate right of appeal from the discharge of a successor trustee and the reinstatement of a trustee. The court noted that “Section 51.014(a)(1) of the Texas Civil Practice & Remedies Code allows for interlocutory appeal from an order that ‘appoints a receiver or trustee.’ However, appellate courts have consistently held the statute does not apply to orders appointing successor trustees.”  Id. The court agreed, and turned to whether the order in this case was final enough to qualify for appeal.

The court looked at the brother’s claims for reimbursement and held that:

Steven’s remaining requests that were not addressed by the trial court do not raise any issue on which he could have filed a separate claim. We also note that no legal authority provides Steven with the right of such reimbursement as a person authorized pursuant to a medical power of attorney, nor does the medical power of attorney Doris executed, although Steven references the common law right of quantum meruit in his appellate brief. Under these circumstances, we conclude no remaining parties or issues remain to be disposed of by the trial court’s orders.

Id.  The court then turned to the merits of the brother’s claims, and disagreed with the brother.  The court affirmed the order in all things.

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Photo of David Fowler Johnson David Fowler Johnson

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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 The Fiduciary Litigator blog, which reports on legal cases and issues impacting the fiduciary…

[email protected]

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 The 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