In In re Squyres, in 2012, Baker filed with the probate court an application to probate a will as a muniment of title. No. 01-16-00236-CV, 2016 Tex. App. LEXIS 8509 (Tex. App.—Houston [1st Dist.] August 9, 2016, no pet. history). The probate court signed an order admitting the will to probate as a muniment of title, and specifically found that “there are no unpaid debts owing by this Estate, exclusive of any debt secured by liens on real estate” and that “there is no necessity for administration of this Estate.” In 2015, Baker filed an application for the probate court to issue letters testamentary and appoint her as independent executor of the estate, and though she acknowledged that the probate court had already admitted the will to probate as a muniment of title, she alleged: “Since the will was admitted to probate as a muniment of title by this Court, Applicant has learned of potential claims due the Estate. There is a necessity for an administration of the Estate so that such claims may be further investigated.” The court granted her application and appointed her executor. Baker’s sister received notice of this order and filed a motion for reconsideration, alleging that the probate court did not have jurisdiction to grant the application. The probate court denied the motion for reconsideration, and the sister filed a petition for writ of mandamus.

The court of appeals first addressed the finality of probate court orders. The court stated that “a probate order is the ‘functional equivalent’ of a final judgment when it finally disposes of a particular issue between parties.” “Thus, the probate court’s plenary power to vacate, modify, correct, or reform a final order expires 30 days after it is signed.” The court acknowledged that a probate court retains jurisdiction over the administration of an estate until that estate is disposed of, but “that continuing jurisdiction does not alter the court’s plenary power over final judgments.” One exception to this finality rule is found in Estates Code Section 55.251(a), which provides that “[a]n interested person may, by a bill of review filed in the court in which the probate proceedings were held, have an order or judgment rendered by the court revised and corrected on a showing of error in the order or judgment, as applicable.” Id. (citing Tex. Est. Code Ann. § 55.251(a)). However, a bill of review “may not be filed more than two years after the date of the order or judgment, as applicable.” Id. The court held that the 2012 order admitting the will to probate as a muniment of title finally disposed of all issues in the proceeding and was a final and appealable judgment. Moreover, the order appointing Baker as executor was filed more than three years after the probate court’s plenary power expired and more than a year after the deadline for filing a bill of review. Accordingly, the court of appeals held that the probate court had no jurisdiction to name Baker executor and granted mandamus relief to the sister.

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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