In Gause v. Gause, a son brought suit to affirm the existence of a trust established by his father. No. 03-13-00768-CV, 2016 Tex. App. LEXIS 8138 (Tex. App.—Austin June 29, 2016, no pet. history). The father had executed a will and a trust document. After his death, a child read the documents to the other children and took the documents to her home. The documents later became missing. A child then procured a deed to real property from the mother that was supposed to be in the trust. Another child sued to hold the deed void and to establish the terms of the trust. The trial court ruled that the trust was effective, set forth its terms, and otherwise voided the deed.

The court of appeals affirmed. The court held that a deed or other document is not made ineffective by its destruction or loss. Rather, production of the original document is excused when it is established that the document has been lost or destroyed, and parol evidence of the contents of a writing is admissible if the original has been lost or destroyed. Loss or destruction of the document is established by proof of search for this document and inability to find it.

The court acknowledged that trusts involving real property had to meet the statute of frauds writing requirement, but that rule did not remove a trust from the operation of the general rule for lost documents. The court held that the evidence was sufficient to establish the terms of the trust and its existence.

Interesting Note: Texas cases have dealt with missing contracts and agreements, and similarly hold that the terms of those agreements can be established through parol evidence. For example, in Bank of America, N.A. v. Haag, a depositor created a trust account for his son’s education, but the signature card was lost. 37 S.W.3d 55, 58 (Tex. App.—San Antonio 2000, no writ). Later, his son withdrew all of the money in the account without the depositor’s permission. See id. The depositor testified that he signed a signature card and testified to its contents, i.e., he was the only one on the signature card and that his son was not allowed to withdraw the money. See id. The trial court awarded judgment to the depositor and against the bank. See id. The bank appealed and argued that its statements and after-the-fact documents proved that the account allowed the son to withdraw funds from the account. See id. The court of appeals, however, dismissed this argument:

Bank of America seeks to rely on the account statements that commenced in 1990 as an unambiguous written agreement which the parol evidence rule prohibits from being contradicted or varied by extrinsic evidence. However, the account statements do not evidence the creation of the account, but simply record the information that was transferred to Bank of America’s system from University Savings’ system. The account statements are not the operative legal document that created the account.

Id. at 58. The court of appeals approved the trial court’s admission of Haag’s parol testimony because there was evidence that a signature card existed at one time but was lost. See id. The court stated: “When a written, signed contract is lost or destroyed such that the party seeking to prove or enforce the agreement is unable to produce the written agreement in court, the existence and terms of the written contract may be shown by clear and convincing parol evidence.” Id. (citing EP Operating Co. v. MJC Energy Co., 883 S.W.2d 263, 267 n.1 (Tex. App.—Corpus Christi 1994, writ denied); Chakur v. Zena, 233 S.W.2d 200, 202 (Tex. Civ. App.—San Antonio 1950, no writ); Mark K. Glasser & Keith A. Rowley, On Parol: The Construction and Interpretation of Written Agreements and the Role of Extrinsic Evidence in Contract Litigation, 49 Baylor L. Rev. 657, 734-35 (1997)). The court concluded: “Because the written contractual documents evidencing the creation of Haag’s account were not introduced into evidence, the trial court did not err in admitting Haag’s testimony regarding the terms of the account.” Id. Based on the testimony of the plaintiff, the court affirmed the jury’s verdict that a trust account had been created and that the beneficiary had no right to withdraw the funds as the only person that may withdraw money from a trust account is the person claiming to be the trustee unless that person dies. See id. (citing Tex. Fin. Code Ann. § 65.106(a)). See also Armstrong v. Roberts, 211 S.W.3d 867 (Tex. App.—El Paso 2006, pet. denied) (testimony of bank’s representative regarding contents of missing second page of account agreement was sufficient to support trial court’s finding that account had survivorship effect); In re Estate of Berger, 174 S.W.3d 845, 846 (Tex. App.—Waco 2005, no pet.) (parol evidence admissible to prove contents of a trust agreement); Phillips v. Ivy, No. 10-02-00266-CV, 2004 Tex. App. LEXIS 7539 (Tex. App.—Waco Aug. 18 2004, pet. denied) (a surviving spouse was allowed to admit an “exemplar” CD of the type used during the relevant time to prove the missing document’s terms). Accordingly, missing trust documents, like other contracts, can be established by parol (oral) testimony.

Lost documents do provide a wrinkle to the normal burden of proof. One court held that to prove the contents of a lost bank agreement, the plaintiff has the burden to establish same by clear and convincing evidence. See Bank of America, N.A., 37 S.W.3d at 58. In Phillips v. Ivy, the court of appeals questioned whether the clear and convincing standard should apply to an agreement that does not involve real property. No. 10-02-00266-CV, 2004 Tex. App. LEXIS 7539, at *5-6 (Tex. App.—Waco Aug. 18 2004, pet. denied). In any event, because the jury instructions submitted the case to the jury on a clear and convincing evidence standard without objection by the parties, the court of appeals applied that standard. See id.

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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