In Shearer v. Shearer, Corrine and John were married from 1990 until 2008. No. 12-14-00302-CV, 2016 Tex. App. LEXIS 5685 (Tex. App.—Tyler May 27, 2016, no pet. history). John became ill in 2009 and was admitted to a hospital where Corrine accompanied him as a friend. At a second hospital, Corrine told the staff that she was still married to John and made several decisions for his treatment. David, John’s son, visited John in the hospital, and David recalled that he and Corrine decided the family would monitor John’s condition and make a decision later as a family regarding a proposed “Do Not Resuscitate” order (“DNR”). Without consulting David, Corrine executed the DNR the following morning, and the hospital withdrew all life-sustaining care. John died two days later. Corrine never informed David of her decisions, even though they spoke on the telephone during those days. David did not learn of his father’s death until after he died.

Even though David believed Corrine made the correct decision concerning the DNR, he sued her for breach of fiduciary duty and intentional infliction of emotional distress concerning Corrine’s nondisclosure of her decisions that deprived David of the chance to see his father prior to his death, and her decision to spread his ashes in a manner different from what he believed his father desired. The jury awarded David $35,000.00 for past mental anguish for Corrine’s breach of fiduciary duty, $1,500.00 for past mental anguish arising from Corrine’s intentional infliction of emotional distress, and $10,000.00 in exemplary damages. Corrine appealed.

The court of appeals first reviewed the law regarding informal fiduciary relationships. The court held that they are not created lightly, and that fiduciary relationships juxtapose trust and dependence on one side with dominance and influence on the other. The problem is one of equity, and the circumstances giving rise to the confidential relationship are not subject to hard and fast lines. A confidential relationship exists where a special confidence is reposed in another who in equity and good conscience is bound to act in good faith and with due regard to the interest of the one reposing confidence. Factors to consider include whether the plaintiff justifiably relied on the defendant for support, the plaintiff’s physical and mental condition, and evidence of the plaintiff’s trust. Subjective trust, alone, is not sufficient, and the trust must be justifiable. There must be additional circumstances, or a relationship that induces the trusting party to relax the care and vigilance that he would ordinarily exercise for his own protection. A court should examine whether, because of a close or special relationship, the plaintiff is in fact accustomed to being guided by the judgment or advice of the other. Another factor is the length and depth of the parties’ relationship, although a long personal relationship alone is insufficient to create a fiduciary relationship. For example, a familial relationship, while considered a factor, does not by itself establish a fiduciary relationship.

The court of appeals looked at the facts and held that, viewing the evidence in the light most favorable to the verdict, David and Corrine were not close prior to John’s illness, but banded together during the family crisis. Corrine gained control by informing the hospital staff in Houston that she was John’s wife. Corrine regularly communicated with David concerning his father’s condition during the course of his illness. The court held that a rational jury could believe that she earned David’s trust during this time. David and Corrine developed a pattern of communication in which Corrine gave David almost daily updates on John’s condition. Corrine was aware of David’s personal issues, including the shooting accident and his wife’s cancer diagnosis, during this same time. Corrine admitted that she knew David relied on her to relay updates on John’s condition. The court concluded that “there were peculiar circumstances inducing David to relax the care and vigilance that he would ordinarily exercise for his own protection. Thus, the jury could rationally have concluded that Corrine acquired influence over David and abused it, and that David’s confidence had been reposed and betrayed… Because the issue is one of equity, under these unique facts, a reasonable jury could have concluded that the relationship developed sufficiently during the relevant time period to justify David’s reliance on Corrine.” The court of appeals affirmed the jury’s finding of a breach of fiduciary duty. The court also affirmed the intentional infliction of emotional distress finding.

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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