In In re Jones, there was a jury trial on the issue of whether a revocable trust was revoked such that the trustee, Jones, or the settlor’s executor, Coyle, had the right to the trust assets. No. 05-16-0081-CV, 2016 Tex. App. LEXIS 6047 (Tex. App.—Dallas June 7, 2016, original proceeding). After rendering judgment in favor of Jones, the trial court granted Coyle’s motion for new trial, stating that (i) the evidence was insufficient to support the jury’s findings, and (ii) Jones introduced legally insufficient evidence of certain specific facts essential to her recovery. Jones filed a petition for writ of mandamus with the court of appeals challenging the new trial order.

The court of appeals granted the mandamus. The court stated the law regarding challenging orders granting new trials, thusly:

A new trial order must satisfy two “facial requirements.” In re Bent, No. 14-1006, 2016 WL 1267580, at *1 (Tex. Apr. 1, 2016) (orig. proceeding). One, the order must state a legally appropriate reason for the new trial. Id. Two, the stated reason must be specific enough to indicate that the trial court did not simply parrot a pro forma template but rather derived the articulated reasons from the case’s particular facts and circumstances. Id. The order must satisfy both requirements, or it is an abuse of discretion correctable by mandamus. See In re United Scaffolding, Inc., 377 S.W.3d 685, 688-89 (Tex. 2012) (orig. proceeding).

The first reason for the new trial order stated that “there is insufficient evidence” to support both of the jury’s findings and gave no further explanation. Citing to the Texas Supreme Court, the court held that “[t]he order must indicate that the trial judge considered the specific facts and circumstances of the case at hand and explain how the evidence (or lack of evidence) undermines the jury’s findings.” The court held that this reason was not sufficiently specific to support a new trial.

The trial court’s second reason was similarly defective. The court reasoned that a new trial was warranted because Jones introduced no evidence of certain specific facts essential to her recovery. The court concluded that it had to grant a new trial to avoid granting Coyle a judgment notwithstanding the verdict. The court held: “Although this reason is specific, it is not a legally appropriate reason for ordering a new trial after a jury trial. The defendant’s remedy when a claimant has introduced legally insufficient evidence of an essential element of its claim is generally a take-nothing judgment.” Accordingly, the court granted mandamus relief and ordered the trial court to vacate its new trial order.

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Photo of David Fowler Johnson David Fowler Johnson

[email protected]
817.420.8223

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]
817.420.8223

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