In Barcroft v. Walton, a statutory probate court entered sanctions, struck a defendant’s pleadings, and entered a default judgment against a defendant in a trust case. No. 02-16-00110-CV, 2017 Tex. App. LEXIS 8541 (Tex. App.—Fort Worth September 7, 2017, no pet. history). The defendant appealed on multiple grounds, and the court of appeals first addressed the defendant’s jurisdictional complaints.

The court of appeals addressed its prior precedent. In In re Guardianship of Gibbs (Gibbs I), 253 S.W.3d 866, 869, 877 (Tex. App.—Fort Worth 2008, pet. dism’d), the court concluded that the probate court lacked jurisdiction over tort claims raised in a trust case. In determining that the probate court lacked subject matter jurisdiction over claims for restitution and breach of fiduciary duty in Gibbs I, the court reviewed the then-applicable statutes and noted that a statutory probate court’s jurisdiction over actions involving trusts is concurrent with that of a district court. The court reviewed the list of ten items that former Texas Property Code section 115.001(a) set out for actions “concerning trusts” over which a district court had jurisdiction. The court determined that the plaintiff’s causes of action were not enumerated in former Section 115.001(a) and did not fall within its scope. In Gibbs I, the court stated that the mere fact that trust funds were implicated by a claim did not transform the claim into one “concerning” or “involving” trusts, and because no law at that time gave the trial court subject matter jurisdiction over tort claims, the trial court lacked subject matter jurisdiction over those claims.

The court in Barcroft noted that the Texas Legislature amended Texas Property Code section 115.001 in 2007 and added subsection (a-1) and some additional language to subsection (a). The new statute provides that “a district court has original and exclusive jurisdiction over all proceedings by or against a trustee and …” the other items mentioned in the statute. Tex. Prop. Code Ann. § 115.001(a-1). Further, subsection (a-1) provides: “The list of proceedings described by Subsection (a) over which a district court has exclusive and original jurisdiction is not exhaustive. A district court has exclusive and original jurisdiction over a proceeding by or against a trustee or a proceeding concerning a trust under Subsection (a) whether or not the proceeding is listed in Subsection (a).” Id. The court held that under the new statutory terms, that the trial court had jurisdiction:

This case was brought in the probate court to remove a trustee but also to obtain damages for tort claims—fraud and other misdeeds—involving the trust. Because the legislature has expressly provided that the list of proceedings in subsection 115.001(a) is not exhaustive and that a district court has jurisdiction over a proceeding by or against a trustee or a proceeding concerning a trust under subsection (a) “whether or not the proceeding is listed” therein, and because “the district court’s jurisdiction over actions involving trusts determines the extent of a statutory probate court’s jurisdiction over such actions,” Gibbs I, 253 S.W.3d at 871, we conclude that the trial court had subject matter jurisdiction to hear the case.

Id.

The court then overruled the appellant’s other procedural complaints because they were waived by the appellant failing to comply with rules of civil and appellate procedure. In one complaint, the appellant, who was pro se, complained that the trial court was biased against pro se parties and always ruled against them. The court of appeals noted: “Barcroft did not support this claim in his motion with any sort of documentation and he ignored entirely the more obvious reason pro se litigants might tend to lose, i.e., their lack of legal education or training, which tends to lead them, as here, to critical mistakes of form and substance.” Id. at n. 11.

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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