In Ackers v. Comerica Bank & Trust, N.A., an income beneficiary sued a trustee for a declaration regarding the construction of a testamentary trust. No. 11-18-00352-CV, 2020 Tex. App. LEXIS 10442 (Tex. App.—Eastland December 31, 2020, no pet. history). The will provided that the income beneficiary was to receive the income from the corpus of the trust during his lifetime, and upon his death, the trust would terminate and the corpus of the trust would pass to the “then-living descendants” of the income beneficiary. The income beneficiary brought a declaratory judgment action seeking a determination that some of his descendants should be excluded at his death, and the trial court entered summary judgment that the relief sought was not ripe for consideration.

The court of appeals noted that “[r]ipeness examines when an action may be brought, while standing focuses on who may bring an action, and that ripeness ‘emphasizes the need for a concrete injury for a justiciable claim to be presented.’” Id. “If the plaintiff’s claimed injury is based on ‘hypothetical facts, or upon events that have not yet come to pass,’ then the case is not ripe, and the court lacks subject-matter jurisdiction.” Id. The court then reviewed the Uniform Declaratory Judgments Act (UDJA), which states that “[a] person interested under a . . . will . . . may have determined any question of construction or validity arising under the instrument . . . and obtain a declaration of rights, status, or other legal relations thereunder.” Id. (citing Tex. Civ. Prac. & Rem. Code Ann § 37.004(a)). “However, a plaintiff bringing suit under the UDJA must still properly invoke the trial court’s subject-matter jurisdiction[,] [and] the UDJA does not permit courts to render advisory opinions…, and does not authorize a court to decide a case in which the issues are hypothetical or contingent—the dispute must still involve an actual controversy.” Id.

The beneficiary argued that the issue was ripe because he sought a declaration as to who was not included in the class of “descendants” and was not seeking a declaration regarding who was included. The court of appeals disagreed and held:

 We disagree with Appellant’s analysis of ripeness. Appellant’s claim involves making a determination of class membership of a gift made to a class. Appellant acknowledges that the gift to his descendants is a class gift and that his descendants are contingent, non-vested beneficiaries….Under Wilkes, the time for ascertaining Appellant’s descendants who will receive the corpus of the trust is to be determined at Appellant’s death and not before. Until Appellant’s death, the interests of his descendants are only contingent interests. As such, the interests of Appellant’s potential descendants are not ripe for determination because they are based upon an event that “[has] not yet come to pass.” Accordingly, the court lacked subject-matter jurisdiction to consider Appellant’s requested relief.

Id. (internal citation omitted) (citing Wilkes v. Wilkes, 488 S.W.2d 398 (Tex. 1972)).

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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